<PAGE> 1
As filed with the Securities and Exchange Commission on November 13, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
TELE-COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1260157
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED TELE-COMMUNICATIONS, INC. 1994 STOCK INCENTIVE PLAN,
AMENDED AND RESTATED TELE-COMMUNICATIONS, INC. 1995 EMPLOYEE
STOCK INCENTIVE PLAN
AND
AMENDED AND RESTATED TELE-COMMUNICATIONS, INC. 1996 INCENTIVE PLAN
(Full title of the plans)
STEPHEN M. BRETT, ESQ.
TELE-COMMUNICATIONS, INC.
TERRACE TOWER II
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(Name and address of agent for service)
(303) 267-5500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM
TITLE OF EACH CLASS OF AMOUNT PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE PER SHARE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) (2) PRICE (2) FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock, par value
$1.00 per share . . . . . . . . . . . . . . 8,000,000 shares $22.40625 $179,250,000 $54,319
=======================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended
(the "Securities Act"), this registration statement shall be deemed to
cover additional securities that may be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(h) and Rule 457(c) of the Securities Act on
the basis of the average of the high and low sales prices reported on
the Nasdaq National Market on November 7, 1997.
================================================================================
<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 Part I of this Form and the statement of
availability of registrant information and other information required by Item 2
of Part I of this Form will be sent or given to participants as specified by
Rule 428(b)(1) under 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
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference in this Registration
Statement the following documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (Commission File No. 0-20421):
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended on Form 10-K/A (Amendment
No. 1).
(ii) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997 and June 30, 1997, respectively.
(iii) The Company's Current Reports on Form 8-K, dated January 22,
1997, March 5, 1997, August 28, 1997 and September 9, 1997.
(iv) Item 1 of the Company's registration statement on Form 8-A/A
(Amendment No. 1), dated August 28, 1997.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part
hereof from the respective dates of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Tele-Communications, Inc.
Series A TCI Ventures Group Common Stock (the "Series A TCI Ventures Group
Common Stock"), are being passed upon for the Company by Baker & Botts, L.L.P.,
599 Lexington Avenue, New York, New York 10022. Jerome H. Kern, special counsel
with the law firm of Baker & Botts, L.L.P., is a director of the Company.
Certain partners of Baker & Botts, L.L.P. and Mr. Kern hold shares, restricted
shares, and/or options to purchase shares of Tele-Communications, Inc. Series A
TCI Group Common Stock, Tele-Communications, Inc. Series A TCI Ventures Group
Common Stock and Tele-Communications, Inc. Series A Liberty Media Group Common
Stock.
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
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<PAGE> 4
party to any threatened, pending or completed action, suit or proceeding
(except actions by or in the right of the corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of the
corporation against all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
A corporation may similarly indemnify such person for expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of any action or suit by or in the right of the corporation, provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, in the case of
claims, issues and matters as to which such person shall have been adjudged
liable to the corporation, provided that a court shall have determined, upon
application, that, despite the adjudication of liability but in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law provides,
generally, that the certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under section 174 of Title 8 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. No such provision may eliminate or limit the liability of a director
for any act or omission occurring prior to the date when such provision became
effective.
Article V, Section E of the Company's Restated Certificate of
Incorporation provides as follows:
"1. Limitation On Liability.
To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be
amended, a director of the Corporation shall not be liable to
the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director. Any
repeal or modification of this paragraph 1 shall be
prospective only and shall not adversely affect any
limitation, right or protection of a director of the
Corporation existing at the time of such repeal or
modification.
2. Indemnification.
(a) RIGHT TO INDEMNIFICATION. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be
amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was
a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership,
joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans,
against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or
not the claim asserted is based on matters which antedate the
adoption of this 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.
II-2
<PAGE> 5
(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 have or hereafter acquire
under any statute, provision of this Certificate, the Bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise.
(e) OTHER INDEMNIFICATION. The Corporation's obligation,
if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or nonprofit
entity.
3. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this
Section E shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification."
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 fullest extent provided by the laws
of the State of Delaware and the Company's Restated Certificate of
Incorporation, as then or thereafter in effect.
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
II-3
<PAGE> 6
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 an indemnitee be provided with the
maximum coverage available for any director or officer of the Company 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 Restated Certificate of Incorporation of the Company dated
August 4, 1994, as amended on August 4, 1994, August 16, 1994,
October 11, 1994, October 21, 1994, January 26, 1995, August
3, 1995, August 3, 1995, January 25, 1996, January 25, 1996,
April 7, 1997 and August 28, 1997 (Incorporated herein by
reference to Exhibit 1 of the Company's Registration Statement
on Form 8-A/A (Amendment No. 1), dated August 28, 1997
(Commission File No. 0-20421)).
4.2 Bylaws of the Company as adopted June 16, 1994 (Incorporated
herein by reference to Exhibit 3.2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1994, as
amended by Form 10-K/A (Commission File No. 0-20421)).
4.3 Specimen Stock Certificate for Tele-Communications, Inc.
Series A TCI Ventures Group Common Stock, par value $1.00 per
share, of the Company.
4.4 Amended and Restated Tele-Communications, Inc. 1994 Stock
Incentive Plan.
4.5 Amended and Restated Tele-Communications, Inc. 1995 Employee
Stock Incentive Plan.
4.6 Amended and Restated Tele-Communications, Inc. 1996 Incentive
Plan.
5 Opinion of Baker & Botts, L.L.P.
23.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
II-4
<PAGE> 7
23.4 Consent of KPMG Peat Marwick LLP.
23.5 Consent of KPMG Audit Plc.
23.6 Consent of Deloitte & Touche LLP.
23.7 Consent of Price Waterhouse LLP.
24 Power of Attorney (included herein on page II-8).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of the
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Exchange Act) 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described
II-5
<PAGE> 8
under Item 6 above, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-6
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greenwood Village, State of Colorado, on
November 13, 1997.
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
---------------------------
Name: Stephen M. Brett
Title: Executive Vice President
and Secretary
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<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen M. Brett, Esq., and Elizabeth M.
Markowski, Esq., and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and re-substitution for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
and each of them full power and authority, to do and perform each and every act
and thing requisite or necessary to be done in and about the premises, to all
intents and purposes and as fully as they might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or their
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons (which persons
constitute a majority of the Board of Directors) in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John C. Malone Chairman of the Board, Chief November 13, 1997
------------------------- Executive Officer and Director
(John C. Malone) (Principal Executive Officer)
/s/ Leo J. Hindery, Jr. President and Director November 13, 1997
------------------------- (Principal Operating Officer)
(Leo J. Hindery, Jr.)
/s/ Donne F. Fisher Director November 13, 1997
-------------------------
(Donne F. Fisher)
Director __, 1997
--------------------------
(Kim Magness)
Director __, 1997
-------------------------
(John W. Gallivan)
Director __, 1997
-------------------------
(Robert A. Naify)
/s/ Jerome H. Kern Director November 13, 1997
-------------------------
(Jerome H. Kern)
Director __, 1997
-------------------------
(J.C. Sparkman)
/s/ Paul A. Gould Director November 12, 1997
-------------------------
(Paul A. Gould)
/s/ Bernard W. Schotters Senior Vice President and November 13, 1997
------------------------- Treasurer
(Bernard W. Schotters) (Principal Financial Officer)
/s/ Gary K. Bracken Senior Vice President of TCI November 13, 1997
------------------------- Communications, Inc. (Principal
(Gary K. Bracken) Accounting Officer)
</TABLE>
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<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Company dated
August 4, 1994, as amended on August 4, 1994, August 16, 1994,
October 11, 1994, October 21, 1994, January 26, 1995, August
3, 1995, August 3, 1995, January 25, 1996, January 25, 1996,
April 7, 1997 and August 28, 1997 (Incorporated herein by
reference to Exhibit 1 of the Company's Registration Statement
on Form 8-A/A (Amendment No. 1), dated August 28, 1997
(Commission File No. 0-20421)).
4.2 Bylaws of the Company as adopted June 16, 1994 (Incorporated
herein by reference to Exhibit 3.2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1994, as
amended by Form 10-K/A (Commission File No. 0-20421)).
4.3 Specimen Stock Certificate for Tele-Communications, Inc.
Series A TCI Ventures Group Common Stock, par value $1.00 per
share, of the Company.
4.4 Amended and Restated Tele-Communications, Inc. 1994 Stock
Incentive Plan.
4.5 Amended and Restated Tele-Communications, Inc. 1995 Employee
Stock Incentive Plan.
4.6 Amended and Restated Tele-Communications, Inc. 1996 Incentive
Plan.
5 Opinion of Baker & Botts, L.L.P.
23.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of KPMG Peat Marwick LLP.
23.5 Consent of KPMG Audit Plc.
23.6 Consent of Deloitte & Touche LLP.
23.7 Consent of Price Waterhouse LLP.
24 Power of Attorney (included herein on page II-8).
</TABLE>
<PAGE> 1
SERIES A TCI VENTURES GROUP SERIES A TCI VENTURES GROUP
COMMON STOCK COMMON STOCK
NUMBER SHARES
- ------ ------
VA
-------------------- --------------------
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR
THE STATE OF DELAWARE CERTAIN DEFINITIONS
CUSIP 87924V 88 7
[TCI LOGO]
TELE-COMMUNICATIONS, INC.
SERIES A TCI VENTURES GROUP COMMON STOCK
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF SERIES A TCI VENTURES GROUP
COMMON STOCK OF THE PAR VALUE OF $1 PER SHARE OF TELE-COMMUNICATIONS, INC. (the
"Corporation") transferable on the books of the Corporation by the holder hereof
in person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. The Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof of the Corporation and the qualifications, limitations or
restrictions of such preferences and/or rights. This Certificate is not valid
unless countersigned by the Transfer Agent and Registrar of the Corporation.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
COUNTERSIGNED:
THE BANK OF NEW YORK
(NEW YORK)
TRANSFER AGENT
AND REGISTRAR
TELE-COMMUNICATIONS, INC.
CORPORATE SEAL 1994
-DELAWARE-
BY: /s/ Stephen M. Brett /s/ Leo J. Hindery, Jr.
AUTHORIZED SIGNATURE SECRETARY PRESIDENT
<PAGE> 2
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM- as tenants in common UNIF GIFT MIN ACT Custodian
TEN ENT- as tenants by the entireties --------------- ---------------
(Cust) (Minor)
JT TEN- as joint tenants with right of
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
-----------------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value received,_________________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
_______________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint_____________________________________________
___________________________________________________________________ Attorney to
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated, _________________________
X
---------------------------------------------------------------
X
----------------------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
SIGNATURE(S) GUARANTEED:
By:
- -------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17AD-15.
<PAGE> 1
AMENDED AND RESTATED
TELE-COMMUNICATIONS, INC.
1994 STOCK INCENTIVE PLAN
(AS AMENDED AND RESTATED EFFECTIVE SEPTEMBER 10, 1997)
RECITALS
Tele-Communications, Inc. (the "Company") established the
Tele-Communications, Inc. 1994 Stock Incentive Plan (the "Plan"), effective
August 4, 1994. Section 4.1 specifies that awards may be granted under the
Plan with respect to a maximum of 16,000,000 shares of Class A Common Stock of
the Company. Section 4.2 provides that, if the Plan Committee determines that
certain actions, including, without limitation, a stock dividend or exchange of
shares, affect the Common Stock such that adjustments are required to preserve
the intended Plan benefits, the Committee is authorized to make adjustments in
(1) the number and kind of shares that may be offered pursuant to the Plan, (2)
the number and kind of shares subject to outstanding Plan Awards and (3) the
purchase price, exercise price or relevant appreciation base of such shares or
Awards. Section 10.8 reserves to the Board and the Committee the right to
amend the Plan.
On August 3, 1995, the stockholders of the Company approved a
proposal to amend the Company's Restated Certificate of Incorporation to
authorize a single class of common stock, $1.00 par value per share, of the
Company issuable in series, to redesignate the Company's existing Class A
Common Stock and Class B Common Stock as Tele- Communications, Inc. Series A
TCI Group Common Stock ("TCOMA") and Tele-Communications, Inc. Series B TCI
Group Common Stock ("TCOMB"), respectively, and to authorize two new series of
the Company's common stock, $1.00 par value per share, the Tele-Communications,
Inc. Series A Liberty Media Group Common Stock ("LBTYA") and
Tele-Communications, Inc. Series B Liberty Media Group Common Stock ("LBTYB")
which are intended to reflect the separate performance of the Liberty Media
Group. On August 10, 1995, the Company distributed, in the form of a dividend,
one share of LBTYA for each four shares of TCOMA, and one share of LBTYB for
each four shares of TCOMB, owned by stockholders of record as of August 4, 1995
(the "LBTYA Effective Date"). Such distribution represented 100% of the common
stockholders' equity value of the Company attributable to the Liberty Media
Group. In connection with the foregoing and pursuant to its authority under
Section 4.2, the Committee determined that, effective upon the LBTYA Effective
Date, (1) each holder of an outstanding option or stock appreciation right as
of the LBTYA Effective Date (an "Existing Award") would receive an additional
option or stock appreciation right, as applicable, covering a number of shares
of LBTYA equal to one-fourth (rounded down to the nearest whole number) of the
number of shares of Common Stock then subject to the Existing Award and that
each outstanding Existing Award would continue in effect as an Award covering
the same number of shares of TCOMA (as redesignated) that was theretofore
subject to such Award, (2) the purchase price, exercise price or relevant
appreciation base applicable to the Existing Award based on Common Stock would
be appropriately allocated between the Existing Award on TCOMA and the
additional
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Award on LBTYA, and (3) similar adjustments would be made in the number and
kind of shares available under the Plan.
On January 14, 1997, the Company distributed one share of
LBTYA for every two shares of LBTYA, and one share of LBTYA for every two
shares of LBTYB, in each case, owned by holders of record as of December 27,
1996 (the "Dividend Record Date"). In connection with such dividend and
pursuant to its authority under Section 4.2, the Committee determined that,
effective upon the Dividend Record Date, (1) each Award covering shares of
LBTYA would be adjusted so that such Award would cover a number of shares of
LBTYA equal to 1.5 multiplied by the number of shares of LBTYA covered by the
Award immediately prior to the Dividend Record Date (rounded down to the
nearest whole number), (2) the purchase price, exercise price or relevant
appreciation base applicable to the Award immediately prior to the Dividend
Record Date would be appropriately adjusted to reflect such increase in the
number of shares of LBTYA covered by the Award, and (3) similar adjustments
would be made in the number and kind of shares available under the Plan.
On September 10, 1997, the Company completed an offer (the
"Offer") to exchange shares of two new series of the Company's common stock,
$1.00 par value per share, known as Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock ("TCIVA") and Tele-Communications, Inc. Series B
TCI Ventures Group Common Stock ("TCIVB"), on a one for one basis, for up to
approximately 30% of the number of shares of TCOMA and TCOMB, respectively,
outstanding as of June 30, 1997. Pursuant to its authority under Section 4.2,
the Committee determined that, effective upon the completion of the Offer, (1)
each option, together with any tandem stock appreciation right, covering shares
of TCOMA outstanding under the Plan as of September 10, 1997 (the "Existing
TCOMA Awards") would be canceled and each holder of an Existing TCOMA Award
would receive in substitution therefor (i) an Award covering a number of shares
of TCIVA equal to 30% (rounded up to the nearest whole number) of the number of
shares of TCOMA subject to the Existing TCOMA Award and (ii) an Award covering
a number of shares of TCOMA equal to 70% (rounded down to the nearest whole
number) of the number of shares of TCOMA subject to the Existing TCOMA Award
and (2) certain related adjustments would be made in the number and kind of
shares available under the Plan.
Pursuant to its authority under Section 10.8, the Committee
has authorized this amendment and restatement of the Plan for the sole purpose
of documenting those authorized adjustments in the number and kind of shares
available under the Plan and other adjustments appropriate as a consequence of
the events described above.
Article I
Purpose and Effectiveness
1.1 Purpose. The purpose of the Plan is to promote the success of
the Company by providing a method whereby (i) eligible employees of the Company
and its Subsidiaries and (ii)
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independent contractors providing services to the Company or its Subsidiaries
may be awarded additional remuneration for services rendered and encouraged to
invest in capital stock of the Company, thereby increasing their proprietary
interest in the Company's businesses, encouraging them to remain in the employ
of the Company or its Subsidiaries, and increasing their personal interest in
the continued success and progress of the Company or its Subsidiaries. The
Plan is also intended to aid in (i) attracting persons of exceptional ability
to become officers and employees of the Company and its Subsidiaries and (ii)
inducing independent contractors to agree to provide services to the Company.
An additional purpose of the Plan was to provide for the issuance pursuant to
the Agreement and Plan of Merger, dated as of January 27, 1994, as amended (the
"Merger Agreement"), among TCI/Liberty Holding Company, a Delaware corporation
("Holding"), Tele-Communications, Inc., a Delaware corporation ("Old TCI"),
Liberty Media Corporation, a Delaware corporation ("Liberty"), TCI Mergerco,
Inc., a Delaware corporation ("TCI Mergerco"), and Liberty Mergerco, Inc., a
Delaware corporation ("Liberty Mergerco") of compensation agreements such as
stock options, stock rights or restricted stock in exchange for similar rights
previously granted by either of Old TCI or Liberty, in connection with the
consummation of the transaction contemplated by the Merger Agreement. In the
transactions contemplated by the Merger Agreement, Old TCI was merged with TCI
Mergerco and Liberty was merged with Liberty Mergerco and Holding, the parent
of TCI Mergerco and Liberty Mergerco, changed its name to Tele-Communications,
Inc. which is the Company, sponsor of this Plan.
1.2 Effective Date. The Plan was adopted subject to, and became
effective upon, the approval by the affirmative vote of the holders of at least
a majority of the outstanding shares of capital stock of each of Old TCI and
Liberty, represented in person or by proxy and entitled to vote, at the special
meetings of stockholders of Old TCI and of Liberty for the purpose of approving
the Merger Agreement.
Article II
Definitions
2.1 Certain Defined Terms. Capitalized terms not defined
elsewhere in the Plan shall have the following meanings (whether used in the
singular or plural):
"Affiliate" of the Company means any corporation, partnership,
or other business association that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with the Company.
"Agreement" means a stock option agreement, stock appreciation
rights agreement, restricted shares agreement or stock units
agreement, or an agreement evidencing more than one type of Award,
specified in Section 10.5, as any such Agreement may be supplemented
or amended from time to time.
"Approved Transaction" means any transaction in which the
Board (or, if approval of the Board is not required as a matter of
law, the stockholders of the
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<PAGE> 4
Company) shall approve (i) any consolidation or merger of the Company,
or binding share exchange, pursuant to which shares of Common Stock
would be changed or converted into or exchanged for cash, securities
or other property, other than any such transaction in which the common
stockholders of the Company immediately prior to such transaction have
the same proportionate ownership of the common stock of, and voting
power with respect to, the surviving corporation immediately after
such transaction, (ii) any merger, consolidation or binding share
exchange to which the Company is a party as a result of which the
persons who are common stockholders of the Company immediately prior
thereto have less than a majority of the combined voting power of the
outstanding capital stock of the Company ordinarily (and apart from
the rights accruing under special circumstances) having the right to
vote in the election of directors immediately following such merger,
consolidation or binding share exchange, (iii) the adoption of any
plan or proposal for the liquidation or dissolution of the Company, or
(iv) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of
the assets of the Company.
"Award" means a grant of Options, SARs, Restricted Shares
and/or Stock Units under this Plan.
"Board" means the Board of Directors of the Company.
"Board Change" means, during any period of two consecutive
years, individuals who at the beginning of such period constituted the
entire Board cease for any reason to constitute a majority thereof
unless the election, or the nomination for election, of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period.
"Class B Stock" means any of TCOMB, LBTYB or TCIVB.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute or statutes thereto.
Reference to any specific Code section shall include any successor
section.
"Committee" means the committee of the Board appointed
pursuant to Section 3.1 to administer the Plan.
"Common Stock" means any of TCOMA, LBTYA or TCIVA.
"Company" means Tele-Communications, Inc., a Delaware
corporation.
"Control Purchase" means any transaction (or series of related
transactions) in which (i) any person (as such term is defined in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation or
other entity (other than the Company, any
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<PAGE> 5
Subsidiary or any employee benefit plan sponsored by the Company or
any Subsidiary) shall purchase any Common Stock or any Class B Stock
(or securities convertible into Common Stock or Class B Stock) for
cash, securities or any other consideration pursuant to a tender offer
or exchange offer, without the prior consent of the Board, or (ii) any
person (as such term is so defined), corporation or other entity
(other than the Company, any Subsidiary, any employee benefit plan
sponsored by the Company or any Subsidiary, or any Controlling Person
(as defined below)) shall become the "beneficial owner" (as such term
is defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more of
the combined voting power of the then outstanding securities of the
Company ordinarily (and apart from the rights accruing under special
circumstances) having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) under the Exchange Act in the
case of rights to acquire the Company's securities), other than in a
transaction (or series of related transactions) approved by the Board.
For purposes of this definition, "Controlling Person" means each of
(a) the Chairman of the Board, the President and each of the directors
of the Company as of the Effective Date of this Plan, (b) the
respective family members, estates and heirs of each of the persons
referred to in clause (a) above and any trust or other investment
vehicle for the primary benefit of any of such persons or their
respective family members or heirs and (c) Kearns-Tribune Corporation,
a Delaware corporation. As used with respect to any person, the term
"family member" means the spouse, siblings and lineal descendants of
such person.
"Disability" means the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not
less than 12 months.
"Dividend Equivalents" means, with respect to Restricted
Shares to be issued at the end of the Restriction Period, to the
extent specified by the Committee only, an amount equal to all
dividends and other distributions (or the economic equivalent thereof)
which are payable to stockholders of record during the Restriction
Period on a like number and kind of shares of Common Stock.
"Effective Date" means the date on which the Plan became
effective pursuant to Section 1.2.
"Equity security" shall have the meaning ascribed to such term
in Section 3(a)(11) of the Exchange Act, and an equity security of an
issuer shall have the meaning ascribed thereto in Rule 16a-1
promulgated under the Exchange Act, or any successor Rule.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute or statutes
thereto. Reference to any specific Exchange Act section shall include
any successor section.
"Fair Market Value" of a share of any series of Common Stock
or Class B Stock on any day means the last sale price (or, if no last
sale price is reported, the average of the high bid and low asked
prices) for a share of the applicable series of Common Stock or Class
B Stock on such day (or, if such day is not a trading day, on the next
preceding trading day) as reported on NASDAQ or, if not reported on
NASDAQ, as quoted by the National Quotation Bureau Incorporated, or if
the applicable series of Common Stock or Class B Stock is listed on an
exchange, on the principal exchange on which such series of Common
Stock or Class B Stock is listed. If for any day the Fair Market
Value of a share of the applicable series of Common Stock or Class B
Stock is not determinable by any of the foregoing means, then the Fair
Market Value for such day shall be determined in good faith by the
Committee on the basis of such quotations and other considerations as
the Committee deems appropriate.
"Free Standing SAR" has the meaning ascribed thereto in
Section 7.1.
"Holder" means an employee of the Company or a Subsidiary or
an independent contractor who has received an Award under this Plan.
"Incentive Stock Option" means a stock option granted under
Article VI which is intended to be an incentive stock option within
the meaning of Section 422 of the Code.
"LBTYA" means the Tele-Communications, Inc. Series A Liberty
Media Group Common Stock of the Company.
"LBTYB" means the Tele-Communications, Inc. Series B Liberty
Media Group Common Stock of the Company.
"NASDAQ" means The Nasdaq Stock Market.
"Nonqualified Stock Option" means a stock option granted under
Article VI that is designated a nonqualified stock option.
"Option" means any Incentive Stock Option or Nonqualified
Stock Option.
"Plan" has the meaning ascribed thereto in the Recitals
hereto.
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"Qualified domestic relations order" means a qualified
domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder.
"Restricted Shares" means shares of a series of Common Stock
or the right to receive shares of a series of Common Stock, as the
case may be, awarded pursuant to Article VIII.
"Restriction Period" means a period of time beginning on the
date of each award of Restricted Shares and ending on the Vesting Date
with respect to such award.
"Retained Distribution" has the meaning ascribed thereto in
Section 8.3.
"Rule 16b-3" means Rule 16b-3 promulgated under the Exchange
Act, or any successor Rule. References to paragraphs of Rule 16b-3
shall include the comparable provisions of any successor Rule.
"SARs" means stock appreciation rights, awarded pursuant to
Article VII, with respect to shares of a series of Common Stock.
"Stock Unit Award" has the meaning ascribed thereto in Section
9.1.
"Subsidiary" of the Company means any present or future
subsidiary (as defined in Section 424(f) of the Code) of the Company
or any business entity in which the Company owns directly or
indirectly, 50% or more of the voting, capital or profits interests.
An entity shall be deemed a subsidiary of the Company for purposes of
this definition only for such periods as the requisite ownership or
control relationship is maintained.
"Tandem SARs" has the meaning ascribed thereto in Section 7.1.
"TCIVA" means the Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock of the Company.
"TCIVB" means the Tele-Communications, Inc. Series B TCI
Ventures Group Common Stock of the Company.
"TCOMA" means the Tele-Communications, Inc. Series A TCI Group
Common Stock of the Company.
"TCOMB" means the Tele-Communications, Inc. Series B TCI Group
Common Stock of the Company.
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<PAGE> 8
"Vesting Date" with respect to any Restricted Shares awarded
hereunder means the date on which such Restricted Shares cease to be
subject to a risk of forfeiture, as designated in or determined in
accordance with the Agreement with respect to such award of Restricted
Shares pursuant to Article VIII. If more than one Vesting Date is
designated for an award of Restricted Shares, reference in the Plan to
a Vesting Date in respect of such Award shall be deemed to refer to
each part of such Award and the Vesting Date for such part.
Article III
Administration
3.1 Committee. The Plan shall be administered by the Compensation
Committee of the Board unless a different committee is appointed by the Board.
The Committee shall be comprised of not less than two persons. The Board may
from time to time appoint members of the Committee in substitution for or in
addition to members previously appointed, may fill vacancies in the Committee
and may remove members of the Committee. The Committee shall select one of its
members as its chairman and shall hold its meetings at such times and places as
it shall deem advisable. A majority of its members shall constitute a quorum
and all determinations shall be made by a majority of such quorum. Any
determination reduced to writing and signed by all of the members shall be
fully as effective as if it had been made by a majority vote at a meeting duly
called and held.
3.2 Powers. The Committee shall have full power and authority to
grant to eligible persons Options under Article VI of the Plan, SARs under
Article VII of the Plan, Restricted Shares under Article VIII of the Plan
and/or Stock Units under Article IX of the Plan, to determine the terms and
conditions (which need not be identical) of all Awards so granted, to interpret
the provisions of the Plan and any Agreements relating to Awards granted under
the Plan, and to supervise the administration of the Plan. The Committee in
making an Award may provide for the granting or issuance of additional,
replacement or alternative Awards upon the occurrence of specified events,
including the exercise of the original Award. The Committee shall have sole
authority in the selection of persons to whom Awards may be granted under the
Plan and in the determination of the timing, pricing and amount of any such
Award, subject only to the express provisions of the Plan. In making
determinations hereunder, the Committee may take into account the nature of the
services rendered by the respective employees and independent contractors,
their present and potential contributions to the success of the Company and its
Subsidiaries and such other factors as the Committee in its discretion deems
relevant.
3.3 Interpretation. The Committee is authorized, subject to the
provisions of the Plan, to establish, amend and rescind such rules and
regulations as it deems necessary or advisable for the proper administration of
the Plan and to take such other action in connection with or in relation to the
Plan as it deems necessary or advisable. Each action and determination made or
taken pursuant to the Plan by the Committee, including any interpretation or
construction of the Plan, shall be final and conclusive for all purposes and
upon all persons. No member of the Committee shall be liable for any action or
determination made or taken by him or the Committee in good faith with respect
to the Plan.
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3.4 Assumption of Awards under Predecessor Plans. Upon the
effective time of the mergers contemplated by the Merger Agreement, the Company
issued Awards hereunder upon the assumption of, and in substitution for,
similar stock options, stock appreciation rights and restricted stock
previously granted by Old TCI and by Liberty, as the case may be, pursuant to
the terms of Section 2.7 of the Merger Agreement. Awards so issued upon such
assumption shall be deemed for all purposes to be Awards under this Plan,
provided that the issuance thereof shall not be deemed a new grant for purposes
of Sections 6.2, 6.3, 7.1, 7.2 or 7.3 and the date of grant of such Awards for
vesting and similar purposes shall be deemed to be the date of grant of the
original awards so assumed.
Article IV
Shares Subject to the Plan
4.1 Number of Shares. Subject to the provisions of this Article
IV, based on adjustments pursuant to this Article IV as of September 10, 1997,
(a) the maximum number of shares of TCOMA with respect to which Awards may be
granted during the term of the Plan shall be 11,200,000 shares, (b) the maximum
number of LBTYA shares with respect to which Awards may be granted during the
term of the Plan shall be 6,000,000 shares and (c) the maximum number of TCIVA
shares with respect to which Awards may be granted during the term of the Plan
shall be 4,800,000 shares. For this purpose, the total number of shares of
LBTYA that were subject to an Award that was exercised (or considered to have
been exercised as provided in Section 7.2) for shares of LBTYA prior to
December 27, 1996 shall be counted as a number equal to 1.5 times such total
number of shares of LBTYA, rounded up to the nearest whole number. Shares of
Common Stock will be made available from the authorized but unissued shares of
the Company or from shares reacquired by the Company, including shares
purchased in the open market. The shares of Common Stock subject to (i) any
Award granted under the Plan that shall expire, terminate or be annulled for
any reason without having been exercised (or considered to have been exercised
as provided in Section 7.2), (ii) any Award of any SARs granted under the Plan
that shall be exercised for cash and (iii) any Award of Restricted Shares or
Stock Units that shall be forfeited prior to becoming vested (provided that the
Holder received no benefits of ownership of such Restricted Shares or Stock
Units other than voting rights and the accumulation of Retained Distributions
and unpaid Dividend Equivalents that are likewise forfeited), shall again be
available for purposes of the Plan.
4.2 Adjustments. If the Company subdivides its outstanding shares
of any series of Common Stock into a greater number of shares of such series of
Common Stock (by stock dividend, stock split, reclassification or otherwise) or
combines its outstanding shares of any series of Common Stock into a smaller
number of shares of such series of Common Stock (by reverse stock split,
reclassification or otherwise), or if the Committee determines that any stock
dividend, extraordinary cash dividend, reclassification, recapitalization,
reorganization, split-up, spin-off, combination, exchange of shares, warrants
or rights offering to purchase shares of any series of
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<PAGE> 10
Common Stock, or other similar corporate event (including mergers or
consolidations other than those which constitute Approved Transactions) affects
such series of Common Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be made available under
this Plan, then the Committee shall, in its sole discretion and in such manner
as the Committee may deem equitable and appropriate, make such adjustments to
any or all of (i) the number and kind of shares of such series which thereafter
may be awarded, optioned, or otherwise made subject to the benefits
contemplated by the Plan, (ii) the number and kind of shares of such series
subject to outstanding Awards, and (iii) the purchase or exercise price and the
relevant appreciation base with respect to any of the foregoing, provided,
however, that the number of shares subject to any Award shall always be a whole
number. The Committee may, if deemed appropriate, provide for a cash payment
to any Holder of an Award in connection with any adjustment made pursuant to
this Section 4.2.
Article V
Eligibility
5.1 General. The persons who shall be eligible to participate in
the Plan and to receive Awards under the Plan shall be such employees
(including officers and, subject to Section 5.2, directors) of the Company and
its Subsidiaries or independent contractors as the Committee shall select.
Awards may be made to employees or independent contractors who hold or have
held Awards under this Plan or any similar or other awards under any other plan
of the Company or any of its Affiliates.
5.2 Ineligibility. No member of the Committee, while serving as
such, shall be eligible to receive an Award.
Article VI
Stock Options
6.1 Grant of Options. Subject to the limitations of the Plan, the
Committee shall designate from time to time those eligible persons to be
granted Options, the time when each Option shall be granted to such eligible
persons, the number and series of shares of Common Stock subject to such
Option, whether such Option is an Incentive Stock Option or a Nonqualified
Stock Option and, subject to Section 6.2, the purchase price of the shares of
the series of Common Stock subject to such Option. Subject to the other
provisions of the Plan, the same person may receive Incentive Stock Options and
Nonqualified Stock Options at the same time and pursuant to the same Agreement,
provided that Incentive Stock Options and Nonqualified Stock Options are
clearly designated as such.
6.2 Option Price. The price at which shares may be purchased upon
exercise of an Option shall be fixed by the Committee and may be more than,
less than or equal to the Fair Market
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Value of the shares of the applicable series of Common Stock subject to the
Option as of the date the Option is granted.
6.3 Limitation on Grants. Except for Awards described in either
of Sections 3.4 or 10.1, from and after September 10, 1997, no Person may be
granted in any calendar year Options covering more than 700,000 shares of
TCOMA, 300,000 shares of TCIVA, and 375,000 shares of LBTYA (as such numbers
may be adjusted from time to time after September 10, 1997 as provided in
Section 4.2).
6.4 Term of Options. Subject to the provisions of the Plan with
respect to death, retirement and termination of employment, the term of each
Option shall be for such period as the Committee shall determine as set forth
in the applicable Agreement.
6.5 Exercise of Options. An Option granted under the Plan shall
become (and remain) exercisable during the term of the Option to the extent
provided in the applicable Agreement and this Plan and, unless the Agreement
otherwise provides, may be exercised to the extent exercisable, in whole or in
part, at any time and from time to time during such term; provided, however,
that subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which
such Option may be exercised in whole or in part (without reducing the term of
such Option).
6.6 Manner of Exercise.
(a) Form of Payment. An Option shall be exercised by
written notice to the Company upon such terms and conditions as the
Agreement may provide and in accordance with such other procedures for
the exercise of Options as the Committee may establish from time to
time. The method or methods of payment of the purchase price for the
shares to be purchased upon exercise of an Option and of any amounts
required by Section 10.10 shall be determined by the Committee and may
consist of (i) cash, (ii) check, (iii) promissory note, (iv) whole
shares of the applicable series of Common Stock or of Class B Stock
already owned by the Holder, (v) the withholding of shares of the
applicable series of Common Stock issuable upon such exercise of the
Option, (vi) the delivery, together with a properly executed exercise
notice, of irrevocable instructions to a broker to deliver promptly to
the Company the amount of sale or loan proceeds required to pay the
purchase price, (vii) any combination of the foregoing methods of
payment, or such other consideration and method of payment as may be
permitted for the issuance of shares under the Delaware General
Corporation Law. The permitted method or methods of payment of the
amounts payable upon exercise of an Option, if other than in cash,
shall be set forth in the applicable Agreement and may be subject to
such conditions as the Committee deems appropriate. Without limiting
the generality of the foregoing, if a Holder is permitted to elect to
have shares of Common Stock issuable upon exercise of an Option
withheld to pay all or any part of the amounts payable in connection
with such exercise, then the Committee shall have the sole discretion
to approve or disapprove such election, which approval or disapproval
shall be given after such election is made.
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(b) Value of Shares. Shares of any series of Common
Stock or Class B Stock delivered in payment of all or any part of the
amounts payable in connection with the exercise of an Option, and
shares of any series of Common Stock withheld for such payment, shall
be valued for such purpose at their Fair Market Value as of the
exercise date. Notwithstanding the foregoing, if a Holder who is
permitted to do so pursuant to the applicable Agreement elects to have
shares of Common Stock issuable upon exercise of an Option withheld in
payment of all or any part of the amounts payable in connection with
the exercise of such Option and if, in order to meet the exemptive
requirements of Rule 16b-3, such election is made during a window
period determined in accordance with paragraph (e)(3) of such Rule (or
is made prior thereto to become effective during such window period),
then for purposes of determining the Fair Market Value of such shares
of Common Stock withheld, such Option (other than an Incentive Stock
Option) shall be deemed to have been exercised on the day during such
window period on which the highest reported last sale price of a share
of the applicable series of Common Stock as reported on NASDAQ
occurred and the Fair Market Value of such shares shall be deemed to
be such highest reported last sale price.
(c) Issuance of Shares. The Company shall effect the
transfer of the shares of Common Stock purchased under the Option as
soon as practicable after the exercise thereof and payment in full of
the purchase price therefor and of any amounts required by Section
10.10, and within a reasonable time thereafter such transfer shall be
evidenced on the books of the Company. No Holder or other person
exercising an Option shall have any of the rights of a stockholder of
the Company with respect to shares of Common Stock subject to an
Option granted under the Plan until due exercise and full payment has
been made. No adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date of such due
exercise and full payment.
6.7 Nontransferability. Unless otherwise determined by the
Committee and provided in the applicable Agreement, Options shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and, except as otherwise
required pursuant to a qualified domestic relations order, Options may be
exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court appointed legal representative).
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Article VII
SARs
7.1 Grant of SARs. Subject to the limitations of the Plan, SARs
may be granted by the Committee to such eligible persons in such numbers, with
respect to such series of Common Stock, and at such times during the term of
the Plan as the Committee shall determine. An SAR may be granted to a Holder
of an Option (hereinafter called a "related Option") with respect to all or a
portion of the shares of Common Stock subject to the related Option (a "Tandem
SAR") or may be granted separately to an eligible employee (a "Free Standing
SAR"). Subject to the limitations of the Plan, SARs shall be exercisable in
whole or in part upon notice to the Company upon such terms and conditions as
are provided in the Agreement. Except for Awards described in either of
Sections 3.4 or 10.1, from and after September 10, 1997, no Person may be
granted in any calendar year SARs covering more than 700,000 shares of TCOMA,
300,000 shares of TCIVA, and 375,000 shares of LBTYA (as such numbers may be
adjusted from time to time after September 10, 1997 as provided in Section
4.2).
7.2 Tandem SARs. A Tandem SAR may be granted either concurrently
with the grant of the related Option or (if the related Option is a
Nonqualified Option) at any time thereafter prior to the complete exercise,
termination, expiration or cancellation of such related Option. Tandem SARs
shall be exercisable only at the time and to the extent that the related Option
is exercisable (and may be subject to such additional limitations on
exercisability as the Agreement may provide), and in no event after the
complete termination or full exercise of the related Option. Upon the exercise
or termination of the related Option, the Tandem SARs with respect thereto
shall be canceled automatically to the extent of the number of shares of Common
Stock with respect to which the related Option was so exercised or terminated.
Subject to the limitations of the Plan, upon the exercise of a Tandem SAR, the
Holder thereof shall be entitled to receive from the Company, for each share of
the applicable series of Common Stock with respect to which the Tandem SAR is
being exercised, consideration (in the form determined as provided in Section
7.4) equal in value to the excess of the Fair Market Value of a share of such
series of Common Stock on the date of exercise over the related Option purchase
price per share; provided, however, that the Committee may, in any Agreement
granting Tandem SARs, provide that the appreciation realizable upon exercise
thereof shall be measured from a base higher than the related Option purchase
price.
7.3 Free Standing SARs. Free Standing SARs shall be exercisable
at the time, to the extent and upon the terms and conditions set forth in the
applicable Agreement. The base price of a Free Standing SAR shall be not less
than 100% of the Fair Market Value of the shares of the applicable series of
Common Stock on the date of grant of the Free Standing SAR. Subject to the
limitations of the Plan, upon the exercise of a Free Standing SAR, the Holder
thereof shall be entitled to receive from the Company, for each share of the
applicable series of Common Stock with respect to which the Free Standing SAR
is being exercised, consideration (in the form determined as provided in
Section 7.4) equal in value to the excess of the Fair Market Value of a share
of the
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applicable series of Common Stock on the date of exercise over the base price
per share of such Free Standing SAR.
7.4 Consideration. The consideration to be received upon the
exercise of an SAR by the Holder shall be paid in cash, shares of the
applicable series of Common Stock (valued at Fair Market Value on the date of
exercise of such SAR) or a combination of cash and shares of such series of
Common Stock as specified in the Agreement, or, if so provided in the
Agreement, either as determined by the Committee in its sole discretion or as
elected by the Holder, provided that the Committee shall have the sole
discretion to approve or disapprove the election by a Holder to receive cash in
full or partial settlement of an SAR, which approval or disapproval shall be
given after such election is made. The Company's obligation arising upon the
exercise of an SAR may be paid currently or on a deferred basis with such
interest or earnings equivalent as the Committee may determine. No fractional
shares of Common Stock shall be issuable upon exercise of an SAR and, unless
otherwise provided in the applicable Agreement, the Holder will receive cash in
lieu of fractional shares. Unless the Committee shall otherwise determine, to
the extent a Free Standing SAR is exercisable, it will be exercised
automatically for cash on its expiration date.
7.5 Limitations. The applicable Agreement may provide for a limit
on the amount payable to a Holder upon exercise of SARs at any time or in the
aggregate, for a limit on the number of SARs that may be exercised by the
Holder in whole or in part for cash during any specified period, for a limit on
the time periods during which a Holder may exercise SARs and for such other
limits on the rights of the Holder and such other terms and conditions of the
SAR as the Committee may determine, including, without limitation, a condition
that the SAR may be exercised only in accordance with rules and regulations
adopted by the Committee from time to time. Unless otherwise so provided in
the applicable Agreement, any such limit relating to a Tandem SAR shall not
restrict the exercisability of the related Option. Such rules and regulations
may govern the right to exercise SARs granted prior to the adoption or
amendment of such rules and regulations as well as SARs granted thereafter.
7.6 Exercise. For purposes of this Article VII, the date of
exercise of an SAR shall mean the date on which the Company shall have received
notice from the Holder of the SAR of the exercise of such SAR.
7.7 Nontransferability. Unless otherwise determined by the
Committee and provided in the applicable Agreement, SARs shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and, except as otherwise
required pursuant to a qualified domestic relations order, SARs may be
exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court appointed legal representative).
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Article VIII
Restricted Shares
8.1 Grant. Subject to the limitations of the Plan, the Committee
shall designate those eligible persons to be granted awards of Restricted
Shares, shall determine the time when each such Award shall be granted, whether
shares of Common Stock covered by awards of Restricted Shares will be issued at
the beginning or the end of the Restriction Period and whether Dividend
Equivalents will be paid during the Restriction Period in the event shares of
the applicable series of Common Stock are to be issued at the end of the
Restriction Period, and shall designate (or set forth the basis for
determining) the Vesting Date or Vesting Dates for each award of Restricted
Shares and may prescribe other restrictions, terms and conditions applicable to
the vesting of such Restricted Shares in addition to those provided in the
Plan. The Committee shall determine the price, if any, to be paid by the
Holder for the Restricted Shares; provided, however, that the issuance of
Restricted Shares shall be made for at least the minimum consideration
necessary to permit such Restricted Shares to be deemed fully paid and
nonassessable. All determinations made by the Committee pursuant to this
Section 8.1 shall be specified in the Agreement.
8.2 Issuance of Restricted Shares at Beginning of the Restriction
Period. If shares of the applicable series of Common Stock are issued at the
beginning of the Restriction Period, the stock certificate or certificates
representing such Restricted Shares shall be registered in the name of the
Holder to whom such Restricted Shares shall have been awarded. During the
Restriction Period, certificates representing the Restricted Shares and any
securities constituting Retained Distributions shall bear a restrictive legend
to the effect that ownership of the Restricted Shares (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are
subject to the restrictions, terms and conditions provided in the Plan and the
applicable Agreement. Such certificates shall remain in the custody of the
Company and the Holder shall deposit with the Company stock powers or other
instruments of assignment, each endorsed in blank, so as to permit retransfer
to the Company of all or any portion of the Restricted Shares and any
securities constituting Retained Distributions that shall be forfeited or
otherwise not become vested in accordance with the Plan and the applicable
Agreement.
8.3 Restrictions. Restricted Shares issued at the beginning of
the Restriction Period shall constitute issued and outstanding shares of the
applicable series of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Shares, to receive and retain such
dividends and distributions, as the Committee may in its sole discretion
designate, paid or distributed on such Restricted Shares and to exercise all
other rights, powers and privileges of a Holder of shares of the applicable
series of Common Stock with respect to such Restricted Shares; except, that (a)
the Holder will not be entitled to delivery of the stock certificate or
certificates representing such Restricted Shares until the Restriction Period
shall have expired and unless all other vesting requirements with respect
thereto shall have been fulfilled or waived; (b) the Company will retain
custody of the stock certificate or certificates representing the Restricted
Shares during the Restriction Period as provided in Section 8.2; (c) other than
such dividends and distributions as the Committee may in its sole discretion
designate, the Company will retain custody of all distributions
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("Retained Distributions") made or declared with respect to the Restricted
Shares (and such Retained Distributions will be subject to the same
restrictions, terms and vesting and other conditions as are applicable to the
Restricted Shares) until such time, if ever, as the Restricted Shares with
respect to which such Retained Distributions shall have been made, paid or
declared shall have become vested, and such Retained Distributions shall not
bear interest or be segregated in a separate account; (d) the Holder may not
sell, assign, transfer, pledge, exchange, encumber or dispose of the Restricted
Shares or any Retained Distributions or his interest in any of them during the
Restriction Period; and (e) a breach of any restrictions, terms or conditions
provided in the Plan or established by the Committee with respect to any
Restricted Shares or Retained Distributions will cause a forfeiture of such
Restricted Shares and any Retained Distributions with respect thereto.
8.4 Issuance of Stock at End of the Restriction Period.
Restricted Shares issued at the end of the Restriction Period shall not
constitute issued and outstanding shares of the applicable series of Common
Stock and the Holder shall not have any of the rights of a stockholder with
respect to the shares of Common Stock covered by such an award of Restricted
Shares, in each case until such shares shall have been transferred to the
Holder at the end of the Restriction Period. If and to the extent that shares
of Common Stock are to be issued at the end of the Restriction Period, the
Holder shall be entitled to receive Dividend Equivalents with respect to the
shares of Common Stock covered thereby either (i) during the Restriction Period
or (ii) in accordance with the rules applicable to Retained Distributions, as
the Committee may specify in the Agreement.
8.5 Cash Awards. In connection with any award of Restricted
Shares, an Agreement may provide for the payment of a cash amount to the Holder
of such Restricted Shares at any time after such Restricted Shares shall have
become vested. Such cash awards shall be payable in accordance with such
additional restrictions, terms and conditions as shall be prescribed by the
Committee in the Agreement and shall be in addition to any other salary,
incentive, bonus or other compensation payments which such Holder shall be
otherwise entitled or eligible to receive from the Company.
8.6 Completion of Restriction Period. On the Vesting Date with
respect to each award of Restricted Shares, and the satisfaction of any other
applicable restrictions, terms and conditions (a) all or the applicable portion
of such Restricted Shares shall become vested, (b) any Retained Distributions
and any unpaid Dividend Equivalents with respect to such Restricted Shares
shall become vested to the extent that the Restricted Shares related thereto
shall have become vested and (c) any cash award to be received by the Holder
with respect to such Restricted Shares shall become payable, all in accordance
with the terms of the applicable Agreement. Any such Restricted Shares,
Retained Distributions and any unpaid Dividend Equivalents that shall not
become vested shall be forfeited to the Company and the Holder shall not
thereafter have any rights (including dividend and voting rights) with respect
to such Restricted Shares, Retained Distributions and any unpaid Dividend
Equivalents that shall have been so forfeited. The Committee may, in its
discretion, provide that the delivery of any Restricted Shares, Retained
Distributions and unpaid Dividend Equivalents that shall have become vested,
and payment of any cash awards that shall have become payable, shall be
deferred until such date or dates as the recipient may elect. Any election of
a recipient pursuant to the preceding sentence shall be filed in writing with
the Committee in
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accordance with such rules and regulations, including any deadline for the
making of such an election, as the Committee may provide.
Article IX
Stock Units
9.1 Grant. In addition to granting awards of Options, SARs and
Restricted Shares, the Committee shall have authority to grant to eligible
persons awards of Stock Units which may be in the form of shares of TCOMA,
LBTYA or TCIVA or units, the value of which is based, in whole or in part, on
the Fair Market Value of the shares of any such series of Common Stock.
Subject to the provisions of the Plan, including any rules established pursuant
to Section 9.2, awards of Stock Units shall be subject to such terms,
restrictions, conditions, vesting requirements and payment rules as the
Committee may determine in its sole discretion, which need not be identical for
each Award. The determinations made by the Committee pursuant to this Section
9.1 shall be specified in the applicable Agreement.
9.2 Rules. The Committee may, in its sole discretion, establish
any or all of the following rules for application to an award of Stock Units:
(a) Any shares of Common Stock which are part of an award
of Stock Units may not be assigned, sold, transferred, pledged or
otherwise encumbered prior to the date on which the shares are issued,
or if later, the date provided by the Committee at the time of the
Award.
(b) Such Awards may provide for the payment of cash
consideration by the person to whom such Award is granted or provide
that the Award, and Common Stock to be issued in connection therewith,
if applicable, shall be delivered without the payment of cash
consideration; provided, however, that the issuance of any shares of
Common Stock in connection with an award of Stock Units shall be for
at least the minimum consideration necessary to permit such shares to
be deemed fully paid and nonassessable.
(c) Awards of Stock Units may relate in whole or in part
to performance or other criteria established by the Committee at the
time of grant.
(d) Awards of Stock Units may provide for deferred
payment schedules, vesting over a specified period of employment, the
payment (on a current or deferred basis) of dividend equivalent
amounts with respect to the number of shares of Common Stock covered
by the Award, and elections by the employee to defer payment of the
Award or the lifting of restrictions on the Award, if any.
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(e) In such circumstances as the Committee may deem
advisable, the Committee may waive or otherwise remove, in whole or in
part, any restrictions or limitations to which a Stock Unit Award was
made subject at the time of grant.
Article X
General Provisions
10.1 Acceleration of Options, SARs, Restricted Shares and Stock
Units.
(a) Death or Disability. If a Holder's employment shall
terminate by reason of death or Disability, notwithstanding any
contrary waiting period, installment period, vesting schedule or
Restriction Period in any Agreement or in the Plan, unless the
applicable Agreement provides otherwise: (i) in the case of an Option
or SAR, each outstanding Option or SAR granted under the Plan shall
immediately become exercisable in full in respect of the aggregate
number of shares covered thereby; (ii) in the case of Restricted
Shares, the Restriction Period applicable to each such award of
Restricted Shares shall be deemed to have expired and all such
Restricted Shares, any related Retained Distributions and any unpaid
Dividend Equivalents shall become vested and any cash amounts payable
pursuant to the applicable Agreement shall be adjusted in such manner
as may be provided in the Agreement, and (iii) in the case of Stock
Units, each such award of Stock Units shall become vested in full.
(b) Approved Transactions; Board Change; Control
Purchase. In the event of any Approved Transaction, Board Change or
Control Purchase, notwithstanding any contrary waiting period,
installment period, vesting schedule or Restriction Period in any
Agreement or in the Plan, unless the applicable Agreement provides
otherwise: (i) in the case of an Option or SAR, each such outstanding
Option or SAR granted under the Plan shall become exercisable in full
in respect of the aggregate number of shares covered thereby; (ii) in
the case of Restricted Shares, the Restriction Period applicable to
each such award of Restricted Shares shall be deemed to have expired
and all such Restricted Shares, any related Retained Distributions and
any unpaid Dividend Equivalents shall become vested and any cash
amounts payable pursuant to the applicable Agreement shall be adjusted
in such manner as may be provided in the Agreement, and (iii) in the
case of Stock Units, each such award of Stock Units shall become
vested in full, in each case effective upon the Board Change or
Control Purchase or immediately prior to consummation of the Approved
Transaction; provided, however, that any Options, SARs or, if
applicable, Stock Units not theretofore exercised shall terminate upon
consummation of the Approved Transaction. Notwithstanding the
foregoing, unless otherwise provided in the applicable Agreement, the
Committee may, in its discretion, determine that any or all
outstanding Awards of any or all types granted pursuant to
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the Plan will not vest or 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 such Award or to assume such
Award and in order to make such new or assumed Award, as nearly as may
be practicable, equivalent to the old Award (before giving effect to
any acceleration of the vesting or exercisability thereof), taking
into account, to the extent applicable, the kind and amount of
securities, cash or other assets into or for which the applicable
series of Common Stock may be changed, converted or exchanged in
connection with the Approved Transaction.
10.2 Termination of Employment.
(a) General. If a Holder's employment shall terminate
prior to the complete exercise of an Option or SAR (or deemed exercise
thereof, as provided in Section 7.2) or during the Restriction Period
with respect to any Restricted Shares or prior to the vesting or
complete exercise of any Stock Units, then such Option, SAR or Stock
Unit shall thereafter be exercisable, and the Holder's rights to any
unvested Restricted Shares, Retained Distributions, unpaid Dividend
Equivalents and cash amounts and any such unvested Stock Units shall
thereafter vest solely to the extent provided in the applicable
Agreement; provided, however, that (i) no Option or SAR may be
exercised after the scheduled expiration date thereof; (ii) if the
Holder's employment terminates by reason of death or Disability, the
Option or SAR shall remain exercisable for a period of at least one
year following such termination (but not later than the scheduled
expiration of such Option or SAR); and (iii) any termination by the
Company for cause will be treated in accordance with the provisions of
Section 10.2(b).
(b) Termination by Company for Cause. If a Holder's
employment with the Company or a Subsidiary shall be terminated by the
Company or such Subsidiary during the Restriction Period with respect
to any Restricted Shares, or prior to the exercise of any Option or
SAR, or prior to the vesting or complete exercise of any Stock Unit,
for cause (for these purposes, cause shall have the meaning ascribed
thereto in any employment agreement to which such Holder is a party
or, in the absence thereof, shall include but not be limited to,
insubordination, dishonesty, incompetence, moral turpitude, other
misconduct of any kind and the refusal to perform his duties and
responsibilities for any reason other than illness or incapacity;
provided, however, that if such termination occurs within 12 months
after an Approved Transaction, Control Purchase or Board Change,
termination for cause shall mean only a felony conviction for fraud,
misappropriation or embezzlement), then (i) all Options and SARs and
all unvested or unexercised Stock Units held by such Holder shall
immediately terminate and (ii) such Holder's rights to all Restricted
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Shares, Retained Distributions, any unpaid Dividend Equivalents and
any cash awards shall be forfeited immediately.
(c) Miscellaneous. The Committee may determine whether
any given leave of absence constitutes a termination of employment;
provided, however, that for purposes of the Plan (i) a leave of
absence, duly authorized in writing by the Company for military
service or sickness, or for any other purpose approved by the Company
if the period of such leave does not exceed 90 days, and (ii) a leave
of absence in excess of 90 days, duly authorized in writing by the
Company, provided the employee's right to reemployment is guaranteed
either by statute or contract, shall not be deemed a termination of
employment. Awards made under the Plan shall not be affected by any
change of employment so long as the Holder continues to be an employee
of the Company or any Subsidiary.
10.3 Right of Company to Terminate Employment. Nothing contained
in the Plan or in any Award, and no action of the Company or the Committee with
respect thereto, shall confer or be construed to confer on any Holder 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 a Subsidiary to terminate
the employment of the Holder at any time, with or without cause; subject,
however, to the provisions of any employment agreement between the Holder and
the Company or any Subsidiary.
10.4 Nonalienation of Benefits. No right or benefit under the Plan
shall be subject to anticipation, alienation, sale, assignment, hypothecation,
pledge, exchange, transfer, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void. No right or benefit hereunder shall
in any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits.
10.5 Written Agreement. Each grant of an Option under the Plan
shall be evidenced by a stock option agreement which shall designate the
Options granted thereunder as Incentive Stock Options or Nonqualified Stock
Options; each SAR shall be evidenced by a stock appreciation rights agreement;
each award of Restricted Shares shall be evidenced by a restricted shares
agreement and each award of Stock Units shall be evidenced by a stock units
agreement, each in such form and containing such terms and provisions not
inconsistent with the provisions of the Plan as the Committee from time to time
shall approve; provided, however, that if more than one type of Award is made
to the same Holder, such Awards may be evidenced by a single agreement with
such Holder. Each grantee of an Option, SAR, Restricted Shares or Stock Units
shall be notified promptly of such grant and a written agreement shall be
promptly executed and delivered by the Company and the grantee, provided that,
in the discretion of the Committee, such grant of Options, SARs, Restricted
Shares or Stock Units shall terminate if such written agreement is not signed
by such grantee (or his attorney) and delivered to the Company within 60 days
after the date the Committee approved such grant. Any such written agreement
may contain (but shall not be required to contain) such provisions as the
Committee deems appropriate (i) to insure that the penalty provisions of
Section 4999 of the Code will not apply to any stock or cash received by the
Holder from the Company or
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(ii) to provide cash payments to the Holder to mitigate the impact of such
penalty provisions upon the Holder. Any such agreement may be supplemented or
amended from time to time as approved by the Committee as contemplated by
Section 10.8(b).
10.6 Designation of Beneficiaries. Each person who shall be
granted an Award under the Plan may designate a beneficiary or beneficiaries
and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Committee on a form to be
prescribed by it, provided that no such designation shall be effective unless
so filed prior to the death of such person.
10.7 Right of First Refusal. The Agreements may contain such
provisions as the Committee shall determine to the effect that if a Holder
elects to sell all or any shares of Common Stock that such Holder acquired upon
the exercise of an Option or SAR or upon the vesting of Restricted Shares or
Stock Units awarded under the Plan, then such Holder shall not sell such shares
unless such Holder shall have first offered in writing to sell such shares to
the Company at Fair Market Value on a date specified in such offer (which date
shall be at least three business days and not more than ten business days
following the date of such offer). In any such event, certificates
representing shares issued upon exercise of Options or SARs and the vesting of
Restricted Shares or Stock Units shall bear a restrictive legend to the effect
that transferability of such shares are subject to the restrictions contained
in the Plan and the applicable Agreement and the Company may cause the transfer
agent for the Common Stock to place a stop transfer order with respect to such
shares.
10.8 Termination and Amendment.
(a) General. Unless the Plan shall theretofore have been
terminated as hereinafter provided, no Awards may be made under the
Plan on or after the tenth anniversary of the Effective Date. The
Board or the Committee may at any time prior to the tenth anniversary
of the Effective Date terminate the Plan, and may, from time to time,
suspend or discontinue the Plan or modify or amend the Plan in such
respects as it shall deem advisable; except that no such modification
or amendment shall be effective prior to approval by the Company's
stockholders to the extent such approval is then required pursuant to
Rule 16b-3 in order to preserve the applicability of any exemption
provided by such rule to any Award then outstanding (unless the holder
of such Award consents) or to the extent stockholder approval is
otherwise required by applicable legal requirements.
(b) Modification. No termination, modification or
amendment of the Plan may, without the consent of the person to whom
any Award shall theretofore have been granted, adversely affect the
rights of such person with respect to such Award. No modification,
extension, renewal or other change in any Award granted under the Plan
shall be made after the grant of such Award, unless the same is
consistent with the provisions of the Plan. With the consent of the
Holder and subject to the terms and conditions of the Plan (including
Section 10.8(a)), the Committee may amend
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outstanding Agreements with any Holder, including, without limitation,
any amendment which would (i) accelerate the time or times at which
the Award may be exercised and/or (ii) extend the scheduled expiration
date of the Award. Without limiting the generality of the foregoing,
the Committee may, but solely with the Holder's consent unless
otherwise provided in the Agreement, agree to cancel any Award under
the Plan and issue a new Award 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 made. Nothing contained in the
foregoing provisions of this Section 10.8(b) shall be construed to
prevent the Committee from providing in any Agreement that the rights
of the Holder with respect to the Award evidenced thereby shall be
subject to such rules and regulations as the Committee may, subject to
the express provisions of the Plan, adopt from time to time, or impair
the enforceability of any such provision.
10.9 Government and Other Regulations. The obligation of the
Company with respect to Awards shall be subject to all applicable laws, rules
and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of any registration
statement required under the Securities Act of 1933, and the rules and
regulations of any securities exchange or association on which the Common Stock
may be listed or quoted. For so long as the Common Stock is registered under
the Exchange Act, the Company shall use its reasonable efforts to comply with
any legal requirements (i) to maintain a registration statement in effect under
the Securities Act of 1933 with respect to all shares of Common Stock that may
be issued to Holders under the Plan, and (ii) to file in a timely manner all
reports required to be filed by it under the Exchange Act.
10.10 Withholding. The Company's obligation to deliver shares of
Common Stock or pay cash in respect of any Award under the Plan shall be
subject to applicable federal, state and local tax withholding requirements.
Federal, state and local withholding tax due at the time of an Award, upon the
exercise of any Option or SAR or upon the vesting of, or expiration of
restrictions with respect to, Restricted Shares or Stock Units, as appropriate,
may, in the discretion of the Committee, be paid in shares of the applicable
series of Common Stock already owned by the Holder or through the withholding
of shares otherwise issuable to such Holder, upon such terms and conditions
(including, without limitation, the conditions referenced in Section 6.6) as
the Committee shall determine. If the Holder shall fail to pay, or make
arrangements satisfactory to the Committee for the payment to the Company of
all such federal, state and local taxes required to be withheld by the Company,
then the Company shall, to the extent permitted by law, have the right to
deduct from any payment of any kind otherwise due to such Holder an amount
equal to any federal, state or local taxes of any kind required to be withheld
by the Company with respect to such Award.
10.11 Separability. It is the intent of the Company that this Plan
comply with Rule 16b-3 with respect to persons subject to Section 16 of the
Exchange Act unless otherwise provided herein or in an Award Agreement, that
any ambiguities or inconsistencies in the construction of this Plan be
interpreted to give effect to such intention, and that if any provision of this
Plan is found not to
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be in compliance with Rule 16b-3, such provision shall be null and void to the
extent required to permit this Plan to comply with Rule 16b-3.
10.12 Non-Exclusivity of the Plan. Neither the adoption of the Plan
by the Board nor the submission of the Plan to the stockholders of the Company
for approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options and the awarding
of stock and cash otherwise than under the Plan, and such arrangements may be
either generally applicable or applicable only in specific cases.
10.13 Exclusion from Pension and Profit-Sharing Computation. By
acceptance of an Award, unless otherwise provided in the applicable Agreement,
each Holder shall be deemed to have agreed that such Award is special incentive
compensation that will not be taken into account, in any manner, as salary,
compensation or bonus in determining the amount of any payment under any
pension, retirement or other employee benefit plan, program or policy of the
Company or any Subsidiary. In addition, each beneficiary of a deceased Holder
shall be deemed to have agreed that such Award will not affect the amount of
any life insurance coverage, if any, provided by the Company on the life of the
Holder which is payable to such beneficiary under any life insurance plan
covering employees of the Company or any Subsidiary.
10.14 Unfunded Plan. Neither the Company nor any Subsidiary shall
be required to segregate any cash or any shares of Common Stock which may at
any time be represented by Awards and the Plan shall constitute an "unfunded"
plan of the Company. Except as provided in Article VIII with respect to awards
of Restricted Shares and except as expressly set forth in writing, no employee
shall have voting or other rights with respect to the shares of Common Stock
covered by an Award prior to the delivery of such shares. Neither the Company
nor any Subsidiary shall, by any provisions of the Plan, be deemed to be a
trustee of any Common Stock or any other property, and the liabilities of the
Company and any Subsidiary to any employee pursuant to the Plan shall be those
of a debtor pursuant to such contract obligations as are created by or pursuant
to the Plan, and the rights of any employee, former employee or beneficiary
under the Plan shall be limited to those of a general creditor of the Company
or the applicable Subsidiary, as the case may be. In its sole discretion, the
Board may authorize the creation of trusts or other arrangements to meet the
obligations of the Company under the Plan, provided, however, that the
existence of such trusts or other arrangements is consistent with the unfunded
status of the Plan.
10.15 Governing Law. The Plan shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
10.16 Accounts. The delivery of any shares of Common Stock and the
payment of any amount in respect of an Award shall be for the account of the
Company or the applicable Subsidiary, as the case may be, and any such delivery
or payment shall not be made until the recipient shall have paid or made
satisfactory arrangements for the payment of any applicable withholding taxes
as provided in Section 10.10.
23
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10.17 Legends. In addition to any legend contemplated by Section
10.7, each certificate evidencing Common Stock subject to an Award shall bear
such legends as the Committee deems necessary or appropriate to reflect or
refer to any terms, conditions or restrictions of the Award applicable to such
shares, including, without limitation, any to the effect that the shares
represented thereby may not be disposed of unless the Company has received an
opinion of counsel, acceptable to the Company, that such disposition will not
violate any federal or state securities laws.
10.18 Company's Rights. The grant of Awards pursuant to the Plan
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.
24
<PAGE> 1
AMENDED AND RESTATED
TELE-COMMUNICATIONS, INC.
1995 EMPLOYEE STOCK INCENTIVE PLAN
(AS AMENDED AND RESTATED EFFECTIVE SEPTEMBER 10, 1997)
RECITALS
Tele-Communications, Inc. (the "Company") established the
Tele-Communications, Inc. 1995 Employee Stock Incentive Plan (the "Plan"),
effective December 13, 1995. Section 4.1 specifies that awards may be granted
under the Plan with respect to a maximum of 3,000,000 shares of
Tele-Communications, Inc. Series A TCI Group Common Stock ("TCOMA") and
1,000,000 shares of Tele-Communications, Inc. Series A Liberty Media Group
Common Stock ("LBTYA"). Section 4.2 provides that, if the Plan Committee
determines that certain actions, including, without limitation, a stock
dividend or exchange of shares, affect TCOMA or LBTYA such that adjustments are
required to preserve the intended Plan benefits, the Committee is authorized to
make adjustments to (1) the number and kind of shares that may be offered
pursuant to the Plan, (2) the number and kind of shares subject to outstanding
Plan Awards and (3) the purchase price, exercise price or relevant appreciation
base of such shares or Awards. Section 10.8 reserves to the Board and the
Committee the right to amend the Plan.
On January 14, 1997, the Company distributed one share of
LBTYA for every two shares of LBTYA, and one share of LBTYA for every two
shares of Tele-Communications, Inc. Series B Liberty Media Group Common Stock,
in each case, owned by holders of record as of December 27, 1996 (the "Dividend
Record Date"). In connection with such dividend and pursuant to its authority
under Section 4.2, the Committee determined that, effective upon the Dividend
Record Date, (1) each Award covering shares of LBTYA would be adjusted so that
such Award would cover a number of shares of LBTYA equal to 1.5 multiplied by
the number of shares of LBTYA covered by the Award immediately prior to the
Dividend Record Date (rounded down to the nearest whole number), (2) the
purchase price, exercise price or relevant appreciation base applicable to the
Award immediately prior to the Dividend Record Date would be appropriately
adjusted to reflect such increase in the number of shares of LBTYA covered by
the Award, and (3) similar adjustments would be made in the number and kind of
shares available under the Plan.
On September 10, 1997, the Company completed an offer (the
"Offer") to exchange shares of two new series of the Company's common stock,
$1.00 par value per share, known as Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock ("TCIVA") and Tele-Communications, Inc. Series B
TCI Ventures Group Common Stock, on a one for one basis, for up to
approximately 30% of the number of shares of TCOMA and Tele-Communications,
Inc. Series B TCI Group Common Stock, respectively, outstanding as of June 30,
1997. Pursuant to its authority under Section 4.2, the Committee determined
that, effective upon the completion of the Offer, (1) each option, together
with any tandem stock appreciation right, covering shares of TCOMA outstanding
under the Plan as of September 10, 1997 (the "Existing Awards") would be
canceled and each holder of an Existing Award would receive in substitution
therefor (i) an Award covering a number of shares of TCIVA equal to 30%
(rounded up to the nearest whole number) of the number of shares of TCOMA
subject to the Existing Award and (ii) an Award covering a number
<PAGE> 2
of shares of TCOMA equal to 70% (rounded down to the nearest whole number) of
the number of shares of TCOMA subject to the Existing Award and (2) certain
related adjustments would be made in the number and kind of shares available
under the Plan.
Pursuant to its authority under Section 10.8, the Committee
has authorized this amendment and restatement of the Plan for the sole purpose
of documenting those authorized adjustments in the number and kind of shares
available under the Plan and other adjustments appropriate as a consequence of
the events described above.
Article I
Purpose and Effectiveness
1.1 Purpose. The purpose of the Plan is to promote the success of
the Company by providing a method whereby (i) eligible employees of the Company
and its Subsidiaries and (ii) independent contractors providing services to the
Company or its Subsidiaries may be awarded additional remuneration for services
rendered and encouraged to invest in capital stock of the Company, thereby
increasing their proprietary interest in the Company's businesses, encouraging
them to remain in the employ of the Company or its Subsidiaries, and increasing
their personal interest in the continued success and progress of the Company or
its Subsidiaries. The Plan is also intended to aid in (i) attracting persons
of exceptional ability to become officers and employees of the Company and its
Subsidiaries and (ii) inducing independent contractors to agree to provide
services to the Company.
1.2 Effective Date. The Plan originally became effective December
13, 1995.
Article II
Definitions
2.1 Certain Defined Terms. Capitalized terms not defined
elsewhere in the Plan shall have the following meanings (whether used in the
singular or plural):
"Affiliate" of the Company means any corporation, partnership,
or other business association that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with the Company.
"Agreement" means a stock option agreement, stock appreciation
rights agreement, restricted shares agreement or stock units
agreement, or an agreement evidencing more than one type of Award,
specified in Section 10.5, as any such Agreement may be supplemented
or amended from time to time.
"Approved Transaction" means any transaction in which the
Board (or, if approval of the Board is not required as a matter of
law, the stockholders of the Company) shall approve (i) any
consolidation or merger of the Company, or binding
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share exchange, pursuant to which shares of Common Stock would be
changed or converted into or exchanged for cash, securities or other
property, other than any such transaction in which the common
stockholders of the Company immediately prior to such transaction have
the same proportionate ownership of the common stock of, and voting
power with respect to, the surviving corporation immediately after
such transaction, (ii) any merger, consolidation or binding share
exchange to which the Company is a party as a result of which the
persons who are common stockholders of the Company immediately prior
thereto have less than a majority of the combined voting power of the
outstanding capital stock of the Company ordinarily (and apart from
the rights accruing under special circumstances) having the right to
vote in the election of directors immediately following such merger,
consolidation or binding share exchange, (iii) the adoption of any
plan or proposal for the liquidation or dissolution of the Company, or
(iv) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of
the assets of the Company.
"Award" means a grant of Options, SARs, Restricted Shares
and/or Stock Units under this Plan.
"Board" means the Board of Directors of the Company.
"Board Change" means, during any period of two consecutive
years, individuals who at the beginning of such period constituted the
entire Board cease for any reason to constitute a majority thereof
unless the election, or the nomination for election, of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute or statutes thereto.
Reference to any specific Code section shall include any successor
section.
"Committee" means the committee of the Board appointed
pursuant to Section 3.1 to administer the Plan.
"Common Stock" means any of TCOMA, LBTYA or TCIVA, each of
which is a series of the Company's common stock, $1.00 par value per
share.
"Company" means Tele-Communications, Inc., a Delaware
corporation.
"Control Purchase" means any transaction (or series of related
transactions) in which (i) any person (as such term is defined in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation or
other entity (other than the Company, any Subsidiary or any employee
benefit plan sponsored by the Company or any Subsidiary) shall
purchase any Common Stock (or securities convertible into Common
Stock) for cash, securities or any other consideration pursuant to a
tender
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<PAGE> 4
offer or exchange offer, without the prior consent of the Board, or
(ii) any person (as such term is so defined), corporation or other
entity (other than the Company, any Subsidiary, any employee benefit
plan sponsored by the Company or any Subsidiary, or any Controlling
Person (as defined below)) shall become the "beneficial owner" (as
such term is defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 20% or more
of the combined voting power of the then outstanding securities of the
Company ordinarily (and apart from the rights accruing under special
circumstances) having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) under the Exchange Act in the
case of rights to acquire the Company's securities), other than in a
transaction (or series of related transactions) approved by the Board.
For purposes of this definition, "Controlling Person" means each of
(a) the Chairman of the Board, the President and each of the directors
of the Company as of the Effective Date of this Plan, (b) the
respective family members, estates and heirs of each of the persons
referred to in clause (a) above and any trust or other investment
vehicle for the primary benefit of any of such persons or their
respective family members or heirs and (c) Kearns-Tribune Corporation,
a Delaware corporation. As used with respect to any person, the term
"family member" means the spouse, siblings and lineal descendants of
such person.
"Disability" means the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not
less than 12 months.
"Dividend Equivalents" means, with respect to Restricted
Shares to be issued at the end of the Restriction Period, to the
extent specified by the Committee only, an amount equal to all
dividends and other distributions (or the economic equivalent thereof)
which are payable to stockholders of record during the Restriction
Period on a like number and kind of shares of Common Stock.
"Effective Date" means December 13, 1995, the date on which
the Plan originally became effective.
"Equity Security" shall have the meaning ascribed to such term
in Section 3(a)(11) of the Exchange Act, and an equity security of an
issuer shall have the meaning ascribed thereto in Rule 16a-1
promulgated under the Exchange Act, or any successor Rule.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute or statutes
thereto. Reference to any specific Exchange Act section shall include
any successor section.
"Fair Market Value" of a share of TCOMA, LBTYA or TCIVA, as
applicable, on any day means the last sale price (or, if no last sale
price is reported,
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<PAGE> 5
the average of the high bid and low asked prices) for a share of such
series of Common Stock on such day (or, if such day is not a trading
day, on the next preceding trading day) as reported on NASDAQ or, if
not reported on NASDAQ, as quoted by the National Quotation Bureau
Incorporated, or if TCOMA, LBTYA or TCIVA, as applicable, is listed on
an exchange, on the principal exchange on which such series of Common
Stock is listed. If for any day the Fair Market Value of a share of
TCOMA, LBTYA or TCIVA, as applicable, is not determinable by any of
the foregoing means, then the Fair Market Value for such day shall be
determined in good faith by the Committee on the basis of such
quotations and other considerations as the Committee deems
appropriate.
"Free Standing SAR" has the meaning ascribed thereto in
Section 7.1.
"Holder" means an employee of the Company or a Subsidiary or
an independent contractor who has received an Award under this Plan.
"LBTYA" means the Tele-Communications, Inc. Series A Liberty
Media Group Common Stock of the Company.
"NASDAQ" means The Nasdaq Stock Market.
"Nonqualified Stock Option" means a stock option granted under
Article VI.
"Option" means any Nonqualified Stock Option.
"Plan" has the meaning ascribed thereto in the Recitals
hereto.
"Qualified domestic relations order" means a qualified
domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder.
"Restricted Shares" means shares of a series of Common Stock
or the right to receive shares of a series of Common Stock, as the
case may be, awarded pursuant to Article VIII.
"Restriction Period" means a period of time beginning on the
date of each award of Restricted Shares and ending on the Vesting Date
with respect to such award.
"Retained Distribution" has the meaning ascribed thereto in
Section 8.3.
"Rule 16b-3" means Rule 16b-3 promulgated under the Exchange
Act, or any successor Rule. References to paragraphs of Rule 16b-3
shall include the comparable provisions of any successor Rule.
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"SARs" means stock appreciation rights, awarded pursuant to
Article VII, with respect to shares of a series of Common Stock.
"Stock Unit Award" has the meaning ascribed thereto in Section
9.1.
"Subsidiary" of the Company means any present or future
subsidiary (as defined in Section 424(f) of the Code) of the Company
or any business entity in which the Company owns directly or
indirectly, 50% or more of the voting, capital or profits interests.
An entity shall be deemed a subsidiary of the Company for purposes of
this definition only for such periods as the requisite ownership or
control relationship is maintained.
"Tandem SARs" has the meaning ascribed thereto in Section 7.1.
"TCIVA" means the Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock of the Company.
"TCOMA" means the Tele-Communications, Inc. Series A TCI Group
Common Stock of the Company.
"Vesting Date" with respect to any Restricted Shares awarded
hereunder means the date on which such Restricted Shares cease to be
subject to a risk of forfeiture, as designated in or determined in
accordance with the Agreement with respect to such award of Restricted
Shares pursuant to Article VIII. If more than one Vesting Date is
designated for an award of Restricted Shares, reference in the Plan to
a Vesting Date in respect of such Award shall be deemed to refer to
each part of such Award and the Vesting Date for such part.
Article III
Administration
3.1 Committee. The Plan shall be administered by the Compensation
Committee of the Board unless a different committee is appointed by the Board.
The Committee shall be comprised of not less than two persons. The Board may
from time to time appoint members of the Committee in substitution for or in
addition to members previously appointed, may fill vacancies in the Committee
and may remove members of the Committee. The Committee shall select one of its
members as its chairman and shall hold its meetings at such times and places as
it shall deem advisable. A majority of its members shall constitute a quorum
and all determinations shall be made by a majority of such quorum. Any
determination reduced to writing and signed by all of the members shall be
fully as effective as if it had been made by a majority vote at a meeting duly
called and held.
3.2 Powers. The Committee shall have full power and authority to
grant to eligible persons Options under Article VI of the Plan, SARs under
Article VII of the Plan, Restricted Shares
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<PAGE> 7
under Article VIII of the Plan and/or Stock Units under Article IX of the Plan,
to determine the terms and conditions (which need not be identical) of all
Awards so granted, to interpret the provisions of the Plan and any Agreements
relating to Awards granted under the Plan, and to supervise the administration
of the Plan. The Committee in making an Award may provide for the granting or
issuance of additional, replacement or alternative Awards upon the occurrence
of specified events, including the exercise of the original Award. The
Committee shall have sole authority in the selection of persons to whom Awards
may be granted under the Plan and in the determination of the timing, pricing
and amount of any such Award, subject only to the express provisions of the
Plan. In making determinations hereunder, the Committee may take into account
the nature of the services rendered by the respective employees and independent
contractors, their present and potential contributions to the success of the
Company and its Subsidiaries and such other factors as the Committee in its
discretion deems relevant.
3.3 Interpretation. The Committee is authorized, subject to the
provisions of the Plan, to establish, amend and rescind such rules and
regulations as it deems necessary or advisable for the proper administration of
the Plan and to take such other action in connection with or in relation to the
Plan as it deems necessary or advisable. Each action and determination made or
taken pursuant to the Plan by the Committee, including any interpretation or
construction of the Plan, shall be final and conclusive for all purposes and
upon all persons. No member of the Committee shall be liable for any action or
determination made or taken by him or the Committee in good faith with respect
to the Plan.
Article IV
Shares Subject to the Plan
4.1 Number of Shares. Subject to the provisions of this Article
IV, based on adjustments pursuant to this Article IV as of September 10, 1997,
(a) the maximum number of TCOMA shares with respect to which Awards may be
granted during the term of the Plan shall be 2,100,000 shares, (b) the maximum
number of LBTYA shares with respect to which Awards may be granted during the
term of the Plan shall be 1,500,000 shares and (c) the maximum number of TCIVA
shares with respect to which Awards may be granted during the term of the Plan
shall be 900,000 shares. For this purpose, the total number of shares of LBTYA
that were subject to an Award that was exercised (or considered to have been
exercised as provided in Section 7.2) for shares of LBTYA prior to December 27,
1996 shall be counted as a number equal to 1.5 times such total number of
shares of LBTYA, rounded up to the nearest whole number. Shares of Common
Stock will be made available from the authorized but unissued shares of the
Company or from shares reacquired by the Company, including shares purchased in
the open market. The shares of Common Stock subject to (i) any Award granted
under the Plan that shall expire, terminate or be annulled for any reason
without having been exercised (or considered to have been exercised as provided
in Section 7.2), (ii) any Award of any SARs granted under the Plan that shall
be exercised for cash and (iii) any Award of Restricted Shares or Stock Units
that shall be forfeited prior to becoming vested (provided that the Holder
received no benefits of ownership of such Restricted Shares or Stock Units
other than voting rights and the accumulation of Retained Distributions and
unpaid Dividend Equivalents that are likewise forfeited), shall again be
available for purposes of the Plan.
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<PAGE> 8
4.2 Adjustments. If the Company subdivides its outstanding shares
of TCOMA, LBTYA or TCIVA into a greater number of shares of TCOMA, LBTYA or
TCIVA (by stock dividend, stock split, reclassification or otherwise) or
combines its outstanding shares of TCOMA, LBTYA or TCIVA into a smaller number
of shares of TCOMA, LBTYA or TCIVA (by reverse stock split, reclassification or
otherwise), or if the Committee determines that any stock dividend,
extraordinary cash dividend, reclassification, recapitalization,
reorganization, split-up, spin-off, combination, exchange of shares, warrants
or rights offering to purchase TCOMA, LBTYA or TCIVA or other similar corporate
event (including mergers or consolidations other than those which constitute
Approved Transactions) affects TCOMA, LBTYA or TCIVA such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be
made available under this Plan, then the Committee shall, in its sole
discretion and in such manner as the Committee may deem equitable and
appropriate, make such adjustments to any or all of (i) the number and kind of
shares of the applicable series which thereafter may be awarded, optioned, or
otherwise made subject to the benefits contemplated by the Plan, (ii) the
number and kind of shares of such series subject to outstanding Awards, and
(iii) the purchase or exercise price and the relevant appreciation base with
respect to any of the foregoing, provided, however, that the number of shares
subject to any Award shall always be a whole number. The Committee may, if
deemed appropriate, provide for a cash payment to any Holder of an Award in
connection with any adjustment made pursuant to this Section 4.2.
Article V
Eligibility
5.1 General. The persons who shall be eligible to participate in
the Plan and to receive Awards under the Plan shall be such employees
(including officers and, subject to Section 5.2, directors) of the Company and
its Subsidiaries or independent contractors as the Committee shall select.
Awards may be made to employees or independent contractors who hold or have
held Awards under this Plan or any similar or other awards under any other plan
of the Company or any of its Affiliates.
5.2 Ineligibility. No member of the Committee, while serving as
such, shall be eligible to receive an Award.
Article VI
Stock Options
6.1 Grant of Options. Subject to the limitations of the Plan, the
Committee shall designate from time to time those eligible persons to be
granted Options, the time when each Option shall be granted to such eligible
persons, the number and series of shares of Common Stock subject to such
Option, and, subject to Section 6.2, the purchase price of the shares of the
series of Common Stock subject to such Option.
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6.2 Option Price. The price at which shares may be purchased upon
exercise of an Option shall be fixed by the Committee and may be more than,
less than or equal to the Fair Market Value of the shares of the applicable
series of Common Stock subject to the Option as of the date the Option is
granted.
6.3 Limitation on Grants. Except for Awards described in Section
10.1, from and after September 10, 1997, no Person may be granted in any
calendar year Options covering more than 700,000 shares of TCOMA, 300,000
shares of TCIVA, or 1,500,000 shares of LBTYA (as such numbers may be adjusted
from time to time after September 10, 1997 as provided in Section 4.2).
6.4 Term of Options. Subject to the provisions of the Plan with
respect to death, retirement and termination of employment, the term of each
Option shall be for such period as the Committee shall determine as set forth
in the applicable Agreement.
6.5 Exercise of Options. An Option granted under the Plan shall
become (and remain) exercisable during the term of the Option to the extent
provided in the applicable Agreement and this Plan and, unless the Agreement
otherwise provides, may be exercised to the extent exercisable, in whole or in
part, at any time and from time to time during such term; provided. however,
that subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which
such Option may be exercised in whole or in part (without reducing the term of
such Option).
6.6 Manner of Exercise.
(a) Form of Payment. An Option shall be exercised by
written notice to the Company upon such terms and conditions as the
Agreement may provide and in accordance with such other procedures for
the exercise of Options as the Committee may establish from time to
time. The method or methods of payment of the purchase price for the
shares to be purchased upon exercise of an Option and of any amounts
required by Section 10.10 shall be determined by the Committee and may
consist of (i) cash, (ii) check, (iii) promissory note, (iv) whole
shares of the applicable series of Common Stock already owned by the
Holder, (v) the withholding of shares of the applicable series of
Common Stock issuable upon such exercise of the Option, (vi) the
delivery, together with a properly executed exercise notice, of
irrevocable instructions to a broker to deliver promptly to the
Company the amount of sale or loan proceeds required to pay the
purchase price, (vii) any combination of the foregoing methods of
payment, or such other consideration and method of payment as may be
permitted for the issuance of shares under the Delaware General
Corporation Law. The permitted method or methods of payment of the
amounts payable upon exercise of an Option, if other than in cash,
shall be set forth in the applicable Agreement and may be subject to
such conditions as the Committee deems appropriate. Without limiting
the generality of the foregoing, if a Holder is permitted to elect to
have shares of Common Stock issuable upon exercise of an Option
withheld to pay all or any part of the amounts payable in connection
with such exercise, then the Committee shall have the sole discretion
to approve or
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disapprove such election, which approval or disapproval shall be given
after such election is made.
(b) Value of Shares. Shares of any series of Common
Stock delivered in payment of all or any part of the amounts payable
in connection with the exercise of an Option, and shares of any series
of Common Stock withheld for such payment, shall be valued for such
purpose at their Fair Market Value as of the exercise date.
(c) Issuance of Shares. The Company shall effect the
transfer of the shares of Common Stock purchased under the Option as
soon as practicable after the exercise thereof and payment in full of
the purchase price therefor and of any amounts required by Section
10.10, and within a reasonable time thereafter such transfer shall be
evidenced on the books of the Company. No Holder or other person
exercising an Option shall have any of the rights of a stockholder of
the Company with respect to shares of Common Stock subject to an
Option granted under the Plan until due exercise and full payment has
been made. No adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date of such due
exercise and full payment.
6.7 Nontransferability. Unless otherwise determined by the
Committee and provided in the applicable Agreement, Options shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and, except as otherwise
required pursuant to a qualified domestic relations order, Options may be
exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court appointed legal representative).
Article VII
SARs
7.1 Grant of SARs. Subject to the limitations of the Plan, SARs
may be granted by the Committee to such eligible persons in such numbers, with
respect to such series of Common Stock, and at such times during the term of
the Plan as the Committee shall determine. An SAR may be granted to a Holder
of an Option (hereinafter called a "related Option") with respect to all or a
portion of the shares of Common Stock subject to the related Option (a "Tandem
SAR") or may be granted separately to an eligible employee (a "Free Standing
SAR"). Subject to the limitations of the Plan, SARs shall be exercisable in
whole or in part upon notice to the Company upon such terms and conditions as
are provided in the Agreement. Except for Awards described in Section 10.1,
from and after September 10, 1997, no Person may be granted in any calendar
year SARs covering more than 700,000 shares of TCOMA, 300,000 shares of TCIVA,
or 1,500,000 shares of LBTYA (as such numbers may be adjusted from time to time
after September 10, 1997 as provided in Section 4.2).
7.2. Tandem Sars. A Tandem SAR may be granted either concurrently
with the grant of the related Option or at any time thereafter prior to the
complete exercise, termination, expiration or cancellation of such related
Option. Tandem SARs shall be exercisable only at the time and to
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the extent that the related Option is exercisable (and may be subject to such
additional limitations on exercisability as the Agreement may provide), and in
no event after the complete termination or full exercise of the related Option.
Upon the exercise or termination of the related Option, the Tandem SARs with
respect thereto shall be canceled automatically to the extent of the number of
shares of Common Stock with respect to which the related Option was so
exercised or terminated. Subject to the limitations of the Plan, upon the
exercise of a Tandem SAR, the Holder thereof shall be entitled to receive from
the Company, for each share of the applicable series of Common Stock with
respect to which the Tandem SAR is being exercised, consideration (in the form
determined as provided in Section 7.4) equal in value to the excess of the Fair
Market Value of a share of such series of Common Stock on the date of exercise
over the related Option purchase price per share; provided, however, that the
Committee may, in any Agreement granting Tandem SARs, provide that the
appreciation realizable upon exercise thereof shall be measured from a base
higher than the related Option purchase price.
7.3 Free Standing SARs. Free Standing SARs shall be exercisable
at the time, to the extent and upon the terms and conditions set forth in the
applicable Agreement. The base price of a Free Standing SAR shall be not less
than 100% of the Fair Market Value of the shares of the applicable series of
Common Stock on the date of grant of the Free Standing SAR. Subject to the
limitations of the Plan, upon the exercise of a Free Standing SAR, the Holder
thereof shall be entitled to receive from the Company, for each share of the
applicable series of Common Stock with respect to which the Free Standing SAR
is being exercised, consideration (in the form determined as provided in
Section 7.4) equal in value to the excess of the Fair Market Value of a share
of the applicable series of Common Stock on the date of exercise over the base
price per share of such Free Standing SAR.
7.4 Consideration. The consideration to be received upon the
exercise of an SAR by the Holder shall be paid in cash, shares of the
applicable series of Common Stock (valued at Fair Market Value on the date of
exercise of such SAR) or a combination of cash and shares of such series of
Common Stock as specified in the Agreement, or, if so provided in the
Agreement, either as determined by the Committee in its sole discretion or as
elected by the Holder, provided that the Committee shall have the sole
discretion to approve or disapprove the election by a Holder to receive cash in
full or partial settlement of an SAR, which approval or disapproval shall be
given after such election is made. The Company's obligation arising upon the
exercise of an SAR may be paid currently or on a deferred basis with such
interest or earnings equivalent as the Committee may determine. No fractional
shares of Common Stock shall be issuable upon exercise of an SAR and, unless
otherwise provided in the applicable Agreement, the Holder will receive cash in
lieu of fractional shares. Unless the Committee shall otherwise determine, to
the extent a Free Standing SAR is exercisable, it will be exercised
automatically for cash on its expiration date.
7.5 Limitations. The applicable Agreement may provide for a limit
on the amount payable to a Holder upon exercise of SARs at any time or in the
aggregate, for a limit on the number of SARs that may be exercised by the
Holder in whole or in part for cash during any specified period, for a limit on
the time periods during which a Holder may exercise SARs and for such other
limits on the rights of the Holder and such other terms and conditions of the
SAR as the Committee may determine, including, without limitation, a condition
that the SAR may be exercised only in
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accordance with rules and regulations adopted by the Committee from time to
time. Unless otherwise so provided in the applicable Agreement, any such limit
relating to a Tandem SAR shall not restrict the exercisability of the related
Option. Such rules and regulations may govern the right to exercise SARs
granted prior to the adoption or amendment of such rules and regulations as
well as SARs granted thereafter.
7.6 Exercise. For purposes of this Article VII, the date of
exercise of an SAR shall mean the date on which the Company shall have received
notice from the Holder of the SAR of the exercise of such SAR.
7.7 Nontransferability. Unless otherwise determined by the
Committee and provided in the applicable Agreement, SARs shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and, except as otherwise
required pursuant to a qualified domestic relations order, SARs may be
exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court appointed legal representative).
Article VIII
Restricted Shares
8.1 Grant. Subject to the limitations of the Plan, the Committee
shall designate those eligible persons to be granted awards of Restricted
Shares, shall determine the time when each such Award shall be granted, whether
shares of Common Stock covered by awards of Restricted Shares will be issued at
the beginning or the end of the Restriction Period and whether Dividend
Equivalents will be paid during the Restriction Period in the event shares of
the applicable series of Common Stock are to be issued at the end of the
Restriction Period, and shall designate (or set forth the basis for
determining) the Vesting Date or Vesting Dates for each award of Restricted
Shares and may prescribe other restrictions, terms and conditions applicable to
the vesting of such Restricted Shares in addition to those provided in the
Plan. The Committee shall determine the price, if any, to be paid by the
Holder for the Restricted Shares; provided, however, that the issuance of
Restricted Shares shall be made for at least the minimum consideration
necessary to permit such Restricted Shares to be deemed fully paid and
nonassessable. All determinations made by the Committee pursuant to this
Section 8.1 shall be specified in the Agreement.
8.2 Issuance of Restricted Shares at Beginning of the Restriction
Period. If shares of the applicable series of Common Stock are issued at the
beginning of the Restriction Period, the stock certificate or certificates
representing such Restricted Shares shall be registered in the name of the
Holder to whom such Restricted Shares shall have been awarded. During the
Restriction Period, certificates representing the Restricted Shares and any
securities constituting Retained Distributions shall bear a restrictive legend
to the effect that ownership of the Restricted Shares (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are
subject to the restrictions, terms and conditions provided in the Plan and the
applicable Agreement. Such certificates shall remain in the custody of the
Company and the Holder shall deposit with the Company stock powers or other
instruments of assignment, each endorsed in blank, so as to permit retransfer
to the
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<PAGE> 13
Company of all or any portion of the Restricted Shares and any securities
constituting Retained Distributions that shall be forfeited or otherwise not
become vested in accordance with the Plan and the applicable Agreement.
8.3 Restrictions. Restricted Shares issued at the beginning of
the Restriction Period shall constitute issued and outstanding shares of the
applicable series of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Shares, to receive and retain such
dividends and distributions, as the Committee may in its sole discretion
designate, paid or distributed on such Restricted Shares and to exercise all
other rights, powers and privileges of a Holder of shares of the applicable
series of Common Stock with respect to such Restricted Shares; except, that (a)
the Holder will not be entitled to delivery of the stock certificate or
certificates representing such Restricted Shares until the Restriction Period
shall have expired and unless all other vesting requirements with respect
thereto shall have been fulfilled or waived; (b) the Company will retain
custody of the stock certificate or certificates representing the Restricted
Shares during the Restriction Period as provided in Section 8.2; (c) other than
such dividends and distributions as the Committee may in its sole discretion
designate, the Company will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the Restricted Shares (and
such Retained Distributions will be subject to the same restrictions, terms and
vesting and other conditions as are applicable to the Restricted Shares) until
such time, if ever, as the Restricted Shares with respect to which such
Retained Distributions shall have been made, paid or declared shall have become
vested, and such Retained Distributions shall not bear interest or be
segregated in a separate account; (d) the Holder may not sell, assign,
transfer, pledge, exchange, encumber or dispose of the Restricted Shares or any
Retained Distributions or his interest in any of them during the Restriction
Period; and (e) a breach of any restrictions, terms or conditions provided in
the Plan or established by the Committee with respect to any Restricted Shares
or Retained Distributions will cause a forfeiture of such Restricted Shares and
any Retained Distributions with respect thereto.
8.4 Issuance of Stock at End of the Restriction Period.
Restricted Shares issued at the end of the Restriction Period shall not
constitute issued and outstanding shares of the applicable series of Common
Stock and the Holder shall not have any of the rights of a stockholder with
respect to the shares of Common Stock covered by such an award of Restricted
Shares, in each case until such shares shall have been transferred to the
Holder at the end of the Restriction Period. If and to the extent that shares
of Common Stock are to be issued at the end of the Restriction Period, the
Holder shall be entitled to receive Dividend Equivalents with respect to the
shares of Common Stock covered thereby either (i) during the Restriction Period
or (ii) in accordance with the rules applicable to Retained Distributions, as
the Committee may specify in the Agreement.
8.5 Cash Awards. In connection with any award of Restricted
Shares, an Agreement may provide for the payment of a cash amount to the Holder
of such Restricted Shares at any time after such Restricted Shares shall have
become vested. Such cash awards shall be payable in accordance with such
additional restrictions, terms and conditions as shall be prescribed by the
Committee in the Agreement and shall be in addition to any other salary,
incentive, bonus or other compensation payments which such Holder shall be
otherwise entitled or eligible to receive from the Company.
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<PAGE> 14
8.6 Completion of Restriction Period. On the Vesting Date with
respect to each award of Restricted Shares, and the satisfaction of any other
applicable restrictions, terms and conditions (a) all or the applicable portion
of such Restricted Shares shall become vested, (b) any Retained Distributions
and any unpaid Dividend Equivalents with respect to such Restricted Shares
shall become vested to the extent that the Restricted Shares related thereto
shall have become vested and (c) any cash award to be received by the Holder
with respect to such Restricted Shares shall become payable, all in accordance
with the terms of the applicable Agreement. Any such Restricted Shares,
Retained Distributions and any unpaid Dividend Equivalents that shall not
become vested shall be forfeited to the Company and the Holder shall not
thereafter have any rights (including dividend and voting rights) with respect
to such Restricted Shares, Retained Distributions and any unpaid Dividend
Equivalents that shall have been so forfeited. The Committee may, in its
discretion, provide that the delivery of any Restricted Shares, Retained
Distributions and unpaid Dividend Equivalents that shall have become vested,
and payment of any cash awards that shall have become payable, shall be
deferred until such date or dates as the recipient may elect. Any election of
a recipient pursuant to the preceding sentence shall be filed in writing with
the Committee in accordance with such rules and regulations, including any
deadline for the making of such an election, as the Committee may provide.
Article IX
Stock Units
9.1 Grant. In addition to granting awards of Options, SARs and
Restricted Shares, the Committee shall have authority to grant to eligible
persons awards of Stock Units which may be in the form of shares of TCOMA,
LBTYA or TCIVA or units, the value of which is based, in whole or in part, on
the Fair Market Value of the shares of any such series of Common Stock.
Subject to the provisions of the Plan, including any rules established pursuant
to Section 9.2, awards of Stock Units shall be subject to such terms,
restrictions, conditions, vesting requirements and payment rules as the
Committee may determine in its sole discretion, which need not be identical for
each Award. The determinations made by the Committee pursuant to this Section
9.1 shall be specified in the applicable Agreement.
9.2 Rules. The Committee may, in its sole discretion, establish
any or all of the following rules for application to an award of Stock Units:
(a) Any shares of Common Stock which are part of an award
of Stock Units may not be assigned, sold, transferred, pledged or
otherwise encumbered prior to the date on which the shares are issued,
or if later, the date provided by the Committee at the time of the
Award.
(b) Such Awards may provide for the payment of cash
consideration by the person to whom such Award is granted or provide
that the Award, and Common Stock to be issued in connection therewith,
if applicable, shall be delivered without the payment of cash
consideration; provided, however, that the issuance of any shares of
Common Stock in connection with an award of Stock Units shall be for
at least the
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<PAGE> 15
minimum consideration necessary to permit such shares to be deemed
fully paid and nonassessable.
(c) Awards of Stock Units may relate in whole or in part
to performance or other criteria established by the Committee at the
time of grant.
(d) Awards of Stock Units may provide for deferred
payment schedules, vesting over a specified period of employment, the
payment (on a current or deferred basis) of dividend equivalent
amounts with respect to the number of shares of Common Stock covered
by the Award, and elections by the employee to defer payment of the
Award or the lifting of restrictions on the Award, if any.
(e) In such circumstances as the Committee may deem
advisable, the Committee may waive or otherwise remove, in whole or in
part, any restrictions or limitations to which a Stock Unit Award was
made subject at the time of grant.
Article X
General Provisions
10.1 Acceleration of Options, SARs, Restricted Shares and Stock
Units.
(a) Death or Disability. If a Holder's employment shall
terminate by reason of death or Disability, notwithstanding any
contrary waiting period, installment period, vesting schedule or
Restriction Period in any Agreement or in the Plan, unless the
applicable Agreement provides otherwise: (i) in the case of an Option
or SAR, each outstanding Option or SAR granted under the Plan shall
immediately become exercisable in full in respect of the aggregate
number of shares covered thereby; (ii) in the case of Restricted
Shares, the Restriction Period applicable to each such award of
Restricted Shares shall be deemed to have expired and all such
Restricted Shares, any related Retained Distributions and any unpaid
Dividend Equivalents shall become vested and any cash amounts payable
pursuant to the applicable Agreement shall be adjusted in such manner
as may be provided in the Agreement, and (iii) in the case of Stock
Units, each such award of Stock Units shall become vested in full.
(b) Approved Transactions; Board Change; Control
Purchase. In the event of any Approved Transaction, Board Change or
Control Purchase, notwithstanding any contrary waiting period,
installment period, vesting schedule or Restriction Period in any
Agreement or in the Plan, unless the applicable Agreement provides
otherwise: (i) in the case of an Option or SAR, each such outstanding
Option or SAR granted under the Plan shall become exercisable in full
in respect of the aggregate number of shares covered thereby; (ii) in
the case of Restricted Shares, the Restriction Period applicable to
each such award of Restricted Shares shall be
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<PAGE> 16
deemed to have expired and all such Restricted Shares, any related
Retained Distributions and any unpaid Dividend Equivalents shall
become vested and any cash amounts payable pursuant to the applicable
Agreement shall be adjusted in such manner as may be provided in the
Agreement, and (iii) in the case of Stock Units, each such award of
Stock Units shall become vested in full, in each case effective upon
the Board Change or Control Purchase or immediately prior to
consummation of the Approved Transaction; provided, however, that any
Options, SARs or, if applicable, Stock Units not theretofore exercised
shall terminate upon consummation of the Approved Transaction.
Notwithstanding the foregoing, unless otherwise provided in the
applicable Agreement, the Committee may, in its discretion, determine
that any or all outstanding Awards of any or all types granted
pursuant to the Plan will not vest or 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
such Award or to assume such Award and in order to make such new or
assumed Award, as nearly as may be practicable, equivalent to the old
Award (before giving effect to any acceleration of the vesting or
exercisability thereof), taking into account, to the extent
applicable, the kind and amount of securities, cash or other assets
into or for which the applicable series of Common Stock may be
changed, converted or exchanged in connection with the Approved
Transaction.
10.2 Termination of Employment.
(a) General. If a Holder's employment shall terminate
prior to the complete exercise of an Option or SAR (or deemed exercise
thereof, as provided in Section 7.2) or during the Restriction Period
with respect to any Restricted Shares or prior to the vesting or
complete exercise of any Stock Units, then such Option, SAR or Stock
Unit shall thereafter be exercisable, and the Holder's rights to any
unvested Restricted Shares, Retained Distributions, unpaid Dividend
Equivalents and cash amounts and any such unvested Stock Units shall
thereafter vest solely to the extent provided in the applicable
Agreement; provided, however, that (i) no Option or SAR may be
exercised after the scheduled expiration date thereof; (ii) if the
Holder's employment terminates by reason of death or Disability, the
Option or SAR shall remain exercisable for a period of at least one
year following such termination (but not later than the scheduled
expiration of such Option or SAR); and (iii) any termination by the
Company for cause will be treated in accordance with the provisions of
Section 10.2(b).
(b) Termination by Company for Cause. If a Holder's
employment with the Company or a Subsidiary shall be terminated by the
Company or such Subsidiary during the Restriction Period with respect
to any Restricted Shares, or prior to the exercise of any Option or
SAR, or prior to the vesting or complete exercise of any
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<PAGE> 17
Stock Unit, for cause (for these purposes, cause shall have the
meaning ascribed thereto in any employment agreement to which such
Holder is a party or, in the absence thereof, shall include but not be
limited to, insubordination, dishonesty, incompetence, moral
turpitude, other misconduct of any kind and the refusal to perform his
duties and responsibilities for any reason other than illness or
incapacity; provided, however, that if such termination occurs within
12 months after an Approved Transaction, Control Purchase or Board
Change, termination for cause shall mean only a felony conviction for
fraud, misappropriation or embezzlement), then (i) all Options and
SARs and all unvested or unexercised Stock Units held by such Holder
shall immediately terminate and (ii) such Holder's rights to all
Restricted Shares, Retained Distributions, any unpaid Dividend
Equivalents and any cash awards shall be forfeited immediately.
(c) Miscellaneous. The Committee may determine whether
any given leave of absence constitutes a termination of employment;
provided, however, that for purposes of the Plan (i) a leave of
absence, duly authorized in writing by the Company for military
service or sickness, or for any other purpose approved by the Company
if the period of such leave does not exceed 90 days, and (ii) a leave
of absence in excess of 90 days, duly authorized in writing by the
Company, provided the employee's right to reemployment is guaranteed
either by statute or contract, shall not be deemed a termination of
employment. Awards made under the Plan shall not be affected by any
change of employment so long as the Holder continues to be an employee
of the Company or any Subsidiary.
10.3 Right of Company to Terminate Employment. Nothing contained
in the Plan or in any Award, and no action of the Company or the Committee with
respect thereto, shall confer or be construed to confer on any Holder 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 a Subsidiary to terminate
the employment of the Holder at any time, with or without cause; subject,
however, to the provisions of any employment agreement between the Holder and
the Company or any Subsidiary.
10.4 Nonalienation of Benefits. No right or benefit under the Plan
shall be subject to anticipation, alienation, sale, assignment, hypothecation,
pledge, exchange, transfer, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void. No right or benefit hereunder shall
in any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits.
10.5 Written Agreement. Each grant of an Option under the Plan
shall be evidenced by a stock option agreement which shall designate the
Options granted thereunder as Nonqualified Stock Options; each SAR shall be
evidenced by a stock appreciation rights agreement; each award of Restricted
Shares shall be evidenced by a restricted shares agreement and each award of
Stock Units shall be evidenced by a stock units agreement, each in such form
and containing such terms and provisions not inconsistent with the provisions
of the Plan as the Committee from time to time shall approve; provided,
however, that if more than one type of Award is made to the same Holder,
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such Awards may be evidenced by a single agreement with such Holder. Each
grantee of an Option, SAR, Restricted Shares or Stock Units shall be notified
promptly of such grant and a written agreement shall be promptly executed and
delivered by the Company and the grantee, provided that, in the discretion of
the Committee, such grant of Options, SARs, Restricted Shares or Stock Units
shall terminate if such written agreement is not signed by such grantee (or his
attorney) and delivered to the Company within 60 days after the date the
Committee approved such grant. Any such written agreement may contain (but
shall not be required to contain) such provisions as the Committee deems
appropriate (i) to insure that the penalty provisions of Section 4999 of the
Code will not apply to any stock or cash received by the Holder from the
Company or (ii) to provide cash payments to the Holder to mitigate the impact
of such penalty provisions upon the Holder. Any such agreement may be
supplemented or amended from time to time as approved by the Committee as
contemplated by Section 10.8(b).
10.6 Designation of Beneficiaries. Each person who shall be
granted an Award under the Plan may designate a beneficiary or beneficiaries
and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Committee on a form to be
prescribed by it, provided that no such designation shall be effective unless
so filed prior to the death of such person.
10.7 Right of First Refusal. The Agreements may contain such
provisions as the Committee shall determine to the effect that if a Holder
elects to sell all or any shares of Common Stock that such Holder acquired upon
the exercise of an Option or SAR or upon the vesting of Restricted Shares or
Stock Units awarded under the Plan, then such Holder shall not sell such shares
unless such Holder shall have first offered in writing to sell such shares to
the Company at Fair Market Value on a date specified in such offer (which date
shall be at least three business days and not more than ten business days
following the date of such offer). In any such event, certificates
representing shares issued upon exercise of Options or SARs and the vesting of
Restricted Shares or Stock Units shall bear a restrictive legend to the effect
that transferability of such shares are subject to the restrictions contained
in the Plan and the applicable Agreement and the Company may cause the transfer
agent for the Common Stock to place a stop transfer order with respect to such
shares.
10.8 Termination and Amendment.
(a) General. Unless the Plan shall theretofore have been
terminated as hereinafter provided, no Awards may be made under the
Plan on or after the tenth anniversary of the Effective Date. The
Board or the Committee may at any time prior to the tenth anniversary
of the Effective Date terminate the Plan, and may, from time to time,
suspend or discontinue the Plan or modify or amend the Plan in such
respects as it shall deem advisable.
(b) Modification. No termination, modification or
amendment of the Plan may, without the consent of the person to whom
any Award shall theretofore have been granted, adversely affect the
rights of such person with respect to such Award. No modification,
extension, renewal or other change in any Award granted under the
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Plan shall be made after the grant of such Award, unless the same is
consistent with the provisions of the Plan. With the consent of the
Holder and subject to the terms and conditions of the Plan (including
Section 10.8(a)), the Committee may amend outstanding Agreements with
any Holder, including, without limitation, any amendment which would
(i) accelerate the time or times at which the Award may be exercised
and/or (ii) extend the scheduled expiration date of the Award.
Without limiting the generality of the foregoing, the Committee may,
but solely with the Holder's consent unless otherwise provided in the
Agreement, agree to cancel any Award under the Plan and issue a new
Award 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 made. Nothing contained in the foregoing provisions of
this Section 10.8(b) shall be construed to prevent the Committee from
providing in any Agreement that the rights of the Holder with respect
to the Award evidenced thereby shall be subject to such rules and
regulations as the Committee may, subject to the express provisions of
the Plan, adopt from time to time, or impair the enforceability of any
such provision.
10.9 Government and Other Regulations. The obligation of the
Company with respect to Awards shall be subject to all applicable laws, rules
and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of any registration
statement required under the Securities Act of 1933, and the rules and
regulations of any securities exchange or association on which the Common Stock
may be listed or quoted. For so long as the Common Stock is registered under
the Exchange Act, the Company shall use its reasonable efforts to comply with
any legal requirements (i) to maintain a registration statement in effect under
the Securities Act of 1933 with respect to all shares of Common Stock that may
be issued to Holders under the Plan, and (ii) to file in a timely manner all
reports required to be filed by it under the Exchange Act.
10.10 Withholding. The Company's obligation to deliver shares of
Common Stock or pay cash in respect of any Award under the Plan shall be
subject to applicable federal, state and local tax withholding requirements.
Federal, state and local withholding tax due at the time of an Award, upon the
exercise of any Option or SAR or upon the vesting of, or expiration of
restrictions with respect to, Restricted Shares or Stock Units, as appropriate,
may, in the discretion of the Committee, be paid in shares of the applicable
series of Common Stock already owned by the Holder or through the withholding
of shares otherwise issuable to such Holder, upon such terms and conditions
(including, without limitation, the conditions referenced in Section 6.6) as
the Committee shall determine. If the Holder shall fail to pay, or make
arrangements satisfactory to the Committee for the payment to the Company of
all such federal, state and local taxes required to be withheld by the Company,
then the Company shall, to the extent permitted by law, have the right to
deduct from any payment of any kind otherwise due to such Holder an amount
equal to any federal, state or local taxes of any kind required to be withheld
by the Company with respect to such Award.
10.11 Separability. If any provision of this Plan is found not to
be in compliance with applicable law and thereby void or invalid, such
provision shall be null and void to the extent required by law but the other
provisions of this Plan shall remain unaffected.
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10.12 Non-Exclusivity of the Plan. The adoption of the Plan by the
Board shall not be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options and the awarding
of stock and cash otherwise than under the Plan, and such arrangements may be
either generally applicable or applicable only in specific cases.
10.13 Exclusion from Pension and Profit-Sharing Computation. By
acceptance of an Award, unless otherwise provided in the applicable Agreement,
each Holder shall be deemed to have agreed that such Award is special incentive
compensation that will not be taken into account, in any manner, as salary,
compensation or bonus in determining the amount of any payment under any
pension, retirement or other employee benefit plan, program or policy of the
Company or any Subsidiary. In addition, each beneficiary of a deceased Holder
shall be deemed to have agreed that such Award will not affect the amount of
any life insurance coverage, if any, provided by the Company on the life of the
Holder which is payable to such beneficiary under any life insurance plan
covering employees of the Company or any Subsidiary.
10.14 Unfunded Plan. Neither the Company nor any Subsidiary shall
be required to segregate any cash or any shares of Common Stock which may at
any time be represented by Awards and the Plan shall constitute an "unfunded"
plan of the Company. Except as provided in Article VIII with respect to awards
of Restricted Shares and except as expressly set forth in writing, no employee
shall have voting or other rights with respect to the shares of Common Stock
covered by an Award prior to the delivery of such shares. Neither the Company
nor any Subsidiary shall, by any provisions of the Plan, be deemed to be a
trustee of any Common Stock or any other property, and the liabilities of the
Company and any Subsidiary to any employee pursuant to the Plan shall be those
of a debtor pursuant to such contract obligations as are created by or pursuant
to the Plan, and the rights of any employee, former employee or beneficiary
under the Plan shall be limited to those of a general creditor of the Company
or the applicable Subsidiary, as the case may be. In its sole discretion, the
Board may authorize the creation of trusts or other arrangements to meet the
obligations of the Company under the Plan, provided, however, that the
existence of such trusts or other arrangements is consistent with the unfunded
status of the Plan.
10.15 Governing Law. The Plan shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
10.16 Accounts. The delivery of any shares of Common Stock and the
payment of any amount in respect of an Award shall be for the account of the
Company or the applicable Subsidiary, as the case may be, and any such delivery
or payment shall not be made until the recipient shall have paid or made
satisfactory arrangements for the payment of any applicable withholding taxes
as provided in Section 10.10.
10.17 Legends. In addition to any legend contemplated by Section
10.7, each certificate evidencing Common Stock subject to an Award shall bear
such legends as the Committee deems necessary or appropriate to reflect or
refer to any terms, conditions or restrictions of the Award applicable to such
shares, including, without limitation, any to the effect that the shares
represented
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<PAGE> 21
thereby may not be disposed of unless the Company has received an opinion of
counsel, acceptable to the Company, that such disposition will not violate any
federal or state securities laws.
10.18 Company's Rights. The grant of Awards pursuant to the Plan
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.
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<PAGE> 1
AMENDED AND RESTATED
TELE-COMMUNICATIONS, INC.
1996 INCENTIVE PLAN
(AS AMENDED AND RESTATED EFFECTIVE SEPTEMBER 10, 1997)
RECITALS
Tele-Communications, Inc. (the "Company") established the
Tele-Communications, Inc. 1996 Incentive Plan (the "Plan"), effective December
13, 1995. Section 4.1 specifies that awards may be granted under the Plan with
respect to a maximum of 16,000,000 shares of Tele-Communications, Inc. Series
A TCI Group Common Stock ("TCOMA") and 4,000,000 shares of Tele-Communications,
Inc. Series A Liberty Media Group Common Stock ("LBTYA"). Section 4.2 provides
that, if the Plan Committee determines that certain actions, including, without
limitation, a stock dividend or exchange of shares, affect TCOMA or LBTYA such
that adjustments are required to preserve the intended Plan benefits, the
Committee is authorized to make adjustments to (1) the number and kind of
shares that may be offered pursuant to the Plan, (2) the number and kind of
shares subject to outstanding Plan Awards and (3) the purchase price, exercise
price or relevant appreciation base of such shares or Awards. Section 11.8
reserves to the Board and the Committee the right to amend the Plan.
On January 14, 1997, the Company distributed one share of
LBTYA for every two shares of LBTYA, and one share of LBTYA for every two
shares of Tele-Communications, Inc. Series B Liberty Media Group Common Stock
("LBTYB"), in each case, owned by holders of record as of December 27, 1996
(the "Dividend Record Date"). In connection with such dividend and pursuant to
its authority under Section 4.2, the Committee determined that, effective upon
the Dividend Record Date, (1) each Award covering shares of LBTYA would be
adjusted so that such Award would cover a number of shares of LBTYA equal to
1.5 multiplied by the number of shares of LBTYA covered by the Award
immediately prior to the Dividend Record Date (rounded down to the nearest
whole number), (2) the purchase price, exercise price or relevant appreciation
base applicable to the Award immediately prior to the Dividend Record Date
would be appropriately adjusted to reflect such increase in the number of
shares of LBTYA covered by the Award, and (3) similar adjustments would be made
in the number and kind of shares available under the Plan.
On September 10, 1997, the Company completed an offer (the
"Offer") to exchange shares of two new series of the Company's common stock,
$1.00 par value per share, known as Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock ("TCIVA") and Tele-Communications, Inc. Series B
TCI Ventures Group Common Stock ("TCIVB"), on a one for one basis, for up to
approximately 30% of the number of shares of TCOMA and Tele-Communications,
Inc. Series B TCI Group Common Stock ("TCOMB"), respectively, outstanding as
of June 30, 1997. Pursuant to its authority under Section 4.2, the Committee
determined that, effective upon the completion of the Offer, (1) each option,
together with any tandem stock appreciation right, covering shares of TCOMA
outstanding under the Plan as of September 10, 1997 (the "Existing Awards")
would be canceled and each holder of an Existing Award would receive in
substitution therefor (i) an Award covering a number of shares of TCIVA equal
to 30% (rounded up to the nearest whole number) of the number of shares of
TCOMA subject to the Existing Award and (ii) an Award
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covering a number of shares of TCOMA equal to 70% (rounded down to the nearest
whole number) of the number of shares of TCOMA subject to the Existing Award
and (2) certain related adjustments would be made in the number and kind of
shares available under the Plan.
Pursuant to its authority under Section 11.8, the Committee
has authorized this amendment and restatement of the Plan for the sole purpose
of documenting those authorized adjustments in the number and kind of shares
available under the Plan and other adjustments appropriate as a consequence of
the events described above.
ARTICLE I
PURPOSE AND EFFECTIVENESS
1.1 Purpose. The purpose of the Plan is to promote the success of
the Company by providing a method whereby (i) eligible employees of the Company
and its Subsidiaries and (ii) independent contractors providing services to the
Company or its Subsidiaries may be awarded additional remuneration for services
rendered and encouraged to invest in capital stock of the Company, thereby
increasing their proprietary interest in the Company's businesses, encouraging
them to remain in the employ of the Company or its Subsidiaries, and increasing
their personal interest in the continued success and progress of the Company or
its Subsidiaries. The Plan is also intended to aid in (i) attracting persons
of exceptional ability to become officers and employees of the Company and its
Subsidiaries and (ii) inducing independent contractors to agree to provide
services to the Company.
1.2 Effective Date. The Plan originally became effective on
December 13, 1995.
ARTICLE II
DEFINITIONS
2.1 Certain Defined Terms. Capitalized terms not defined
elsewhere in the Plan shall have the following meanings (whether used in the
singular or plural):
"Affiliate" of the Company means any corporation, partnership,
or other business association that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with the Company.
"Agreement" means a stock option agreement, stock appreciation
rights agreement, restricted shares agreement, stock units agreement
or performance award agreement, or an agreement evidencing more than
one type of Award, specified in Section 11.5, as any such Agreement
may be supplemented or amended from time to time.
"Approved Transaction" means any transaction in which the
Board (or, if approval of the Board is not required as a matter of
law, the stockholders of the Company) shall
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approve (i) any consolidation or merger of the Company, or binding
share exchange, pursuant to which shares of common stock of the
Company would be changed or converted into or exchanged for cash,
securities or other property, other than any such transaction in which
the common stockholders of the Company immediately prior to such
transaction have the same proportionate ownership of the common stock
of, and voting power with respect to, the surviving corporation
immediately after such transaction, (ii) any merger, consolidation or
binding share exchange to which the Company is a party as a result of
which the persons who are common stockholders of the Company
immediately prior thereto have less than a majority of the combined
voting power of the outstanding capital stock of the Company
ordinarily (and apart from the rights accruing under special
circumstances) having the right to vote in the election of directors
immediately following such merger, consolidation or binding share
exchange, (iii) the adoption of any plan or proposal for the
liquidation or dissolution of the Company, or (iv) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company.
"Award" means a grant of Options, SARs, Restricted Shares,
Stock Units, Performance Awards and/or cash under this Plan.
"Board" means the Board of Directors of the Company.
"Board Change" means, during any period of two consecutive
years, individuals who at the beginning of such period constituted the
entire Board cease for any reason to constitute a majority thereof
unless the election, or the nomination for election, of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
the period.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute or statutes thereto.
Reference to any specific Code section shall include any successor
section.
"Committee" means the committee of the Board appointed
pursuant to Section 3.1 to administer the Plan.
"Common Stock" means any of TCOMA, TCOMB, LBTYA, LBTYB, TCIVA
or TCIVB, each of which is a series of the Company's common stock,
$1.00 par value per share.
"Company" means Tele-Communications, Inc., a Delaware
corporation.
"Control Purchase" means any transaction (or series of related
transactions) in which (i) any person (as such term is defined in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act), corporation or
other entity (other than the Company, any Subsidiary or any employee
benefit plan sponsored by the Company or any Subsidiary) shall
purchase any common stock of the Company (or securities convertible
into common stock of the Company) for cash,
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securities or any other consideration pursuant to a tender offer or
exchange offer, without the prior consent of the Board, or (ii) any
person (as such term is so defined), corporation or other entity
(other than the Company, any Subsidiary, any employee benefit plan
sponsored by the Company or any Subsidiary, or any Controlling Person
(as defined below)) shall become the "beneficial owner" (as such term
is defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more of
the combined voting power of the then outstanding securities of the
Company ordinarily (and apart from the rights accruing under special
circumstances) having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) under the Exchange Act in the
case of rights to acquire the Company's securities), other than in a
transaction (or series of related transactions) approved by the Board.
For purposes of this definition, "Controlling Person" means each of
(a) the Chairman of the Board, the President and each of the directors
of the Company as of the Effective Date of this Plan, (b) the
respective family members, estates and heirs of each of the persons
referred to in clause (a) above and any trust or other investment
vehicle for the primary benefit of any of such persons or their
respective family members or heirs and (c) Kearns-Tribune Corporation,
a Delaware corporation. As used with respect to any person, the term
"family member" means the spouse, siblings and lineal descendants of
such person.
"Disability" means the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not
less than 12 months.
"Dividend Equivalents" means, with respect to Restricted
Shares to be issued at the end of the Restriction Period, to the
extent specified by the Committee only, an amount equal to all
dividends and other distributions (or the economic equivalent thereof)
which are payable to stockholders of record during the Restriction
Period on a like number and kind of shares of Common Stock.
"Domestic relations order" means a domestic relations order as
defined by the Code or Title I of the Employee Retirement Income
Security Act, or the rules thereunder.
"Effective Date" means December 13, 1995, the date on which
the Plan originally became effective.
"Equity security" shall have the meaning ascribed to such term
in Section 3(a)(11) of the Exchange Act, and an equity security of an
issuer shall have the meaning ascribed thereto in Rule 16a-1
promulgated under the Exchange Act, or any successor Rule.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute or statutes
thereto. Reference to any specific Exchange Act section shall include
any successor section.
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"Fair Market Value" of a share of any series of Common Stock
on any day means the last sale price (or, if no last sale price is
reported, the average of the high bid and low asked prices) for a
share of such series of Common Stock on such day (or, if such day is
not a trading day, on the next preceding trading day) as reported on
NASDAQ or, if not reported on NASDAQ, as quoted by the National
Quotation Bureau Incorporated, or if the applicable series of Common
Stock is listed on an exchange, on the principal exchange on which
such series of Common Stock is listed. If for any day the Fair Market
Value of a share of the applicable series of Common Stock is not
determinable by any of the foregoing means, then the Fair Market Value
for such day shall be determined in good faith by the Committee on the
basis of such quotations and other considerations as the Committee
deems appropriate.
"Free Standing SAR" has the meaning ascribed thereto in
Section 7.1.
"Holder" means an employee of the Company or a Subsidiary or
an independent contractor who has received an Award under this Plan.
"Incentive Stock Option" means a stock option granted under
Article VI which is intended to be an incentive stock option within
the meaning of Section 422 of the Code.
"LBTYA" means the Tele-Communications, Inc. Series A Liberty
Media Group Common Stock of the Company.
"LBTYB" means the Tele-Communications, Inc. Series B Liberty
Media Group Common Stock of the Company.
"NASDAQ" means The Nasdaq Stock Market.
"Nonqualified Stock Option" means a stock option granted under
Article VI that is designated a nonqualified stock option.
"Option" means any Incentive Stock Option or Nonqualified
Stock Option.
"Performance Award" means an award of cash or property made
pursuant to this Plan that is subject to the attainment of one or more
Performance Goals.
"Performance Goal" means a standard established by the
Committee, to determine in whole or in part whether a Performance
Award shall be earned.
"Plan" has the meaning ascribed thereto in the Recitals
hereto.
"Restricted Shares" means shares of TCOMA, LBTYA or TCIVA or
the right to receive shares of such series of Common Stock, as the
case may be, awarded pursuant to Article VIII.
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"Restriction Period" means a period of time beginning on the
date of each award of Restricted Shares and ending on the Vesting Date
with respect to such award.
"Retained Distribution" has the meaning ascribed thereto in
Section 8.3.
"Rule 16b-3" means Rule 16b-3 promulgated under the Exchange
Act, or any successor Rule. References to paragraphs of Rule 16b-3
shall include the comparable provisions of any successor Rule.
"SARs" means stock appreciation rights, awarded pursuant to
Article VII, with respect to shares of TCOMA, LBTYA or TCIVA.
"Stock Unit Award" has the meaning ascribed thereto in Section
9.1.
"Subsidiary" of the Company means any present or future
subsidiary (as defined in Section 424(f) of the Code) of the Company
or any business entity in which the Company owns directly or
indirectly, 50% or more of the voting, capital or profits interests.
An entity shall be deemed a subsidiary of the Company for purposes of
this definition only for such periods as the requisite ownership or
control relationship is maintained.
"Tandem SARs" has the meaning ascribed thereto in Section 7.1.
"TCIVA" means the Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock of the Company.
"TCIVB" means the Tele-Communications, Inc. Series B TCI
Ventures Group Common Stock of the Company.
"TCOMA" means the Tele-Communications, Inc. Series A TCI Group
Common Stock of the Company.
"TCOMB" means the Tele-Communications, Inc. Series B TCI Group
Common Stock of the Company.
"Vesting Date" with respect to any Restricted Shares awarded
hereunder means the date on which such Restricted Shares cease to be
subject to a risk of forfeiture, as designated in or determined in
accordance with the Agreement with respect to such award of Restricted
Shares pursuant to Article VIII. If more than one Vesting Date is
designated for an award of Restricted Shares, reference in the Plan to
a Vesting Date in respect of such Award shall be deemed to refer to
each part of such Award and the Vesting Date for such part.
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ARTICLE III
ADMINISTRATION
3.1 Committee. The Plan shall be administered by the Compensation
Committee of the Board unless a different committee is appointed by the Board.
The Committee shall be comprised of not less than two persons. The Board may
from time to time appoint members of the Committee in substitution for or in
addition to members previously appointed, may fill vacancies in the Committee
and may remove members of the Committee. The Committee shall select one of its
members as its chairman and shall hold its meetings at such times and places as
it shall deem advisable. A majority of its members shall constitute a quorum
and all determinations shall be made by a majority of such quorum. Any
determination reduced to writing and signed by all of the members shall be
fully as effective as if it had been made by a majority vote at a meeting duly
called and held.
3.2 Powers. The Committee shall have full power and authority to
grant to eligible persons Options under Article VI of the Plan, SARs under
Article VII of the Plan, Restricted Shares under Article VIII of the Plan,
Stock Units under Article IX of the Plan, and/or Performance Awards under
Article X of the Plan, to determine the terms and conditions (which need not be
identical) of all Awards so granted, to interpret the provisions of the Plan
and any Agreements relating to Awards granted under the Plan, and to supervise
the administration of the Plan. The Committee in making an Award may provide
for the granting or issuance of additional, replacement or alternative Awards
upon the occurrence of specified events, including the exercise of the original
Award. The Committee shall have sole authority in the selection of persons to
whom Awards may be granted under the Plan and in the determination of the
timing, pricing and amount of any such Award, subject only to the express
provisions of the Plan. In making determinations hereunder, the Committee may
take into account the nature of the services rendered by the respective
employees and independent contractors, their present and potential
contributions to the success of the Company and its Subsidiaries and such other
factors as the Committee in its discretion deems relevant.
3.3 Interpretation. The Committee is authorized, subject to the
provisions of the Plan, to establish, amend and rescind such rules and
regulations as it deems necessary or advisable for the proper administration of
the Plan and to take such other action in connection with or in relation to the
Plan as it deems necessary or advisable. Each action and determination made or
taken pursuant to the Plan by the Committee, including any interpretation or
construction of the Plan, shall be final and conclusive for all purposes and
upon all persons. No member of the Committee shall be liable for any action or
determination made or taken by him or the Committee in good faith with respect
to the Plan.
ARTICLE IV
SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to the provisions of this Article
IV, based on adjustments pursuant to this Article IV as of September 10, 1997,
(a) the maximum number of shares of TCOMA
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with respect to which Awards may be granted during the term of the Plan shall
be 11,200,000 shares, (b) the maximum number of LBTYA shares with respect to
which Awards may be granted during the term of the Plan shall be 6,000,000
shares and (c) the maximum number of TCIVA shares with respect to which Awards
may be granted during the term of the Plan shall be 4,800,000 shares. For this
purpose, the total number of shares of LBTYA that were subject to an Award that
was exercised (or considered to have been exercised as provided in Section 7.2)
for shares of LBTYA prior to December 27, 1996 shall be counted as a number
equal to 1.5 times such total number of shares of LBTYA, rounded up to the
nearest whole number. No TCOMB shares, LBTYB shares or TCIVB shares may be the
subject of Awards under the Plan. Shares of Common Stock will be made
available from the authorized but unissued shares of the Company or from shares
reacquired by the Company, including shares purchased in the open market. The
shares of Common Stock subject to (i) any Award granted under the Plan that
shall expire, terminate or be annulled for any reason without having been
exercised (or considered to have been exercised as provided in Section 7.2),
(ii) any Award of any SARs granted under the Plan that shall be exercised for
cash and (iii) any Award of Restricted Shares or Stock Units that shall be
forfeited prior to becoming vested (provided that the Holder received no
benefits of ownership of such Restricted Shares or Stock Units other than
voting rights and the accumulation of Retained Distributions and unpaid
Dividend Equivalents that are likewise forfeited), shall again be available for
purposes of the Plan.
4.2 Adjustments. If the Company subdivides its outstanding shares
of TCOMA, LBTYA or TCIVA into a greater number of shares of TCOMA, LBTYA or
TCIVA (by stock dividend, stock split, reclassification or otherwise) or
combines its outstanding shares of TCOMA, LBTYA or TCIVA into a smaller number
of shares of TCOMA, LBTYA or TCIVA (by reverse stock split, reclassification or
otherwise), or if the Committee determines that any stock dividend,
extraordinary cash dividend, reclassification, recapitalization,
reorganization, split-up, spin-off, combination, exchange of shares, warrants
or rights offering to purchase TCOMA, LBTYA or TCIVA, or other similar
corporate event (including mergers or consolidations other than those which
constitute Approved Transactions) affects TCOMA, LBTYA or TCIVA such that an
adjustment is required in order to preserve the benefits or potential benefits
intended to be made available under this Plan, then the Committee shall, in its
sole discretion and in such manner as the Committee may deem equitable and
appropriate, make such adjustments to any or all of (i) the number and kind of
shares of such series which thereafter may be awarded, optioned, or otherwise
made subject to the benefits contemplated by the Plan, (ii) the number and kind
of shares of such series subject to outstanding Awards, and (iii) the purchase
or exercise price and the relevant appreciation base with respect to any of the
foregoing, provided, however, that the number of shares subject to any Award
shall always be a whole number. The Committee may, if deemed appropriate,
provide for a cash payment to any Holder of an Award in connection with any
adjustment made pursuant to this Section 4.2.
ARTICLE V
ELIGIBILITY
5.1 General. The persons who shall be eligible to participate in
the Plan and to receive Awards under the Plan shall be such employees
(including officers and, subject to Section 5.2, directors) of the Company and
its Subsidiaries or independent contractors as the Committee shall
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<PAGE> 9
select. Awards may be made to employees or independent contractors who hold or
have held Awards under this Plan or any similar or other awards under any other
plan of the Company or any of its Affiliates.
5.2 Ineligibility. No member of the Committee, while serving as
such, shall be eligible to receive an Award.
ARTICLE VI
STOCK OPTIONS
6.1 Grant of Options. Subject to the limitations of the Plan, the
Committee shall designate from time to time those eligible persons to be
granted Options, the time when each Option shall be granted to such eligible
persons, the number of shares of TCOMA, LBTYA or TCIVA subject to such Option,
whether such Option is an Incentive Stock Option or a Nonqualified Stock Option
and, subject to Section 6.2, the purchase price of the shares of TCOMA, LBTYA
or TCIVA subject to such Option. Subject to the other provisions of the Plan,
the same person may receive Incentive Stock Options and Nonqualified Stock
Options at the same time and pursuant to the same Agreement, provided that
Incentive Stock Options and Nonqualified Stock Options are clearly designated
as such.
6.2 Option Price. The price at which shares may be purchased upon
exercise of an Option shall be fixed by the Committee and may be more than,
less than or equal to the Fair Market Value of the shares of the applicable
series of Common Stock subject to the Option as of the date the Option is
granted.
6.3 Limitation on Grants. Except for Awards described in Section
11.1, from and after September 10, 1997, no Person may be granted in any
calendar year Options covering more than 1,400,000 shares of TCOMA, 600,000
shares of TCIVA, or 3,000,000 shares of LBTYA (as such numbers may be adjusted
from time to time after September 10, 1997 as provided in Section 4.2).
6.4 Term of Options. Subject to the provisions of the Plan with
respect to death, retirement and termination of employment, the term of each
Option shall be for such period as the Committee shall determine as set forth
in the applicable Agreement.
6.5 Exercise of Options. An Option granted under the Plan shall
become (and remain) exercisable during the term of the Option to the extent
provided in the applicable Agreement and this Plan and, unless the Agreement
otherwise provides, may be exercised to the extent exercisable, in whole or in
part, at any time and from time to time during such term; provided. however,
that subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which
such Option may be exercised in whole or in part (without reducing the term of
such Option).
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6.6 Manner of Exercise.
(a) Form of Payment. An Option shall be exercised by
written notice to the Company upon such terms and conditions as the
Agreement may provide and in accordance with such other procedures for
the exercise of Options as the Committee may establish from time to
time. The method or methods of payment of the purchase price for the
shares to be purchased upon exercise of an Option and of any amounts
required by Section 11.10 shall be determined by the Committee and may
consist of (i) cash, (ii) check, (iii) promissory note, (iv) in the
case of Options on LBTYA shares, whole shares of LBTYA or LBTYB, (v)
in the case of Options on TCOMA shares, whole shares of TCOMA or
TCOMB, (vi) in the case of Options on TCIVA shares, whole shares of
TCIVA or TCIVB, (vii) the withholding of shares of the applicable
series of Common Stock issuable upon such exercise of the Option,
(viii) the delivery, together with a properly executed exercise
notice, of irrevocable instructions to a broker to deliver promptly to
the Company the amount of sale or loan proceeds required to pay the
purchase price, (ix) any combination of the foregoing methods of
payment, or such other consideration and method of payment as may be
permitted for the issuance of shares under the Delaware General
Corporation Law. The permitted method or methods of payment of the
amounts payable upon exercise of an Option, if other than in cash,
shall be set forth in the applicable Agreement and may be subject to
such conditions as the Committee deems appropriate. Without limiting
the generality of the foregoing, if a Holder is permitted to elect to
have shares of Common Stock issuable upon exercise of an Option
withheld to pay all or any part of the amounts payable in connection
with such exercise, then the Committee may reserve the sole discretion
to approve or disapprove such election.
(b) Value of Shares. Shares of any series of Common
Stock delivered in payment of all or any part of the amounts payable
in connection with the exercise of an Option, and shares of any series
of Common Stock withheld for such payment, shall be valued for such
purpose at their Fair Market Value as of the exercise date.
Notwithstanding the foregoing, if a Holder who is permitted to do so
pursuant to the applicable Agreement elects to have shares of Common
Stock issuable upon exercise of an Option withheld in payment of all
or any part of the amounts payable in connection with the exercise of
such Option and if, in order to meet the exemptive requirements of
Rule 16b-3, such election is made during a window period determined in
accordance with paragraph (e)(3) of such Rule (or is made prior
thereto to become effective during such window period), then for
purposes of determining the Fair Market Value of such shares of Common
Stock withheld, such Option (other than an Incentive Stock Option)
shall be deemed to have been exercised on the day during such window
period on which the highest reported last sale price of a share of
TCOMA, LBTYA or TCIVA, as applicable, as reported on NASDAQ occurred
and the Fair Market Value of such shares shall be deemed to be such
highest reported last sale price.
(c) Issuance of Shares. The Company shall effect the
transfer of the shares of Common Stock purchased under the Option as
soon as practicable after the exercise thereof and payment in full of
the purchase price therefor and of any amounts required by Section
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11.10, and within a reasonable time thereafter such transfer shall be
evidenced on the books of the Company. No Holder or other person
exercising an Option shall have any of the rights of a stockholder of
the Company with respect to shares of Common Stock subject to an
Option granted under the Plan until due exercise and full payment has
been made. No adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date of such due
exercise and full payment.
6.7 Nontransferability. Unless otherwise determined by the
Committee and provided in the applicable Agreement, Options shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a domestic relations order and, except as otherwise required
pursuant to a domestic relations order, Options may be exercised during the
lifetime of the Holder thereof only by such Holder (or his or her court
appointed legal representative).
ARTICLE VII
SARs
7.1 Grant of SARs. Subject to the limitations of the Plan, SARs
may be granted by the Committee to such eligible persons in such numbers, with
respect to TCOMA, LBTYA or TCIVA, and at such times during the term of the Plan
as the Committee shall determine. An SAR may be granted to a Holder of an
Option (hereinafter called a "related Option") with respect to all or a portion
of the shares of Common Stock subject to the related Option (a "Tandem SAR") or
may be granted separately to an eligible employee (a "Free Standing SAR").
Subject to the limitations of the Plan, SARs shall be exercisable in whole or
in part upon notice to the Company upon such terms and conditions as are
provided in the Agreement. Except for Awards described in Section 11.1, from
and after September 10, 1997, no Person may be granted in any calendar year
SARs covering more than 1,400,000 shares of TCOMA, 600,000 shares of TCIVA, or
3,000,000 shares of LBTYA (as such numbers may be adjusted from time to time
after September 10, 1997 as provided in Section 4.2).
7.2 Tandem SARs. A Tandem SAR may be granted either concurrently
with the grant of the related Option or (if the related Option is a
Nonqualified Option) at any time thereafter prior to the complete exercise,
termination, expiration or cancellation of such related Option. Tandem SARs
shall be exercisable only at the time and to the extent that the related Option
is exercisable (and may be subject to such additional limitations on
exercisability as the Agreement may provide), and in no event after the
complete termination or full exercise of the related Option. Upon the exercise
or termination of the related Option, the Tandem SARs with respect thereto
shall be canceled automatically to the extent of the number of shares of Common
Stock with respect to which the related Option was so exercised or terminated.
Subject to the limitations of the Plan, upon the exercise of a Tandem SAR, the
Holder thereof shall be entitled to receive from the Company, for each share of
TCOMA, LBTYA or TCIVA with respect to which the Tandem SAR is being exercised,
consideration (in the form determined as provided in Section 7.4) equal in
value to the excess of the Fair Market Value of a share of such series of
Common Stock on the date of exercise over the related Option purchase price per
share; provided, however, that the Committee may, in any
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Agreement granting Tandem SARs, provide that the appreciation realizable upon
exercise thereof shall be measured from a base higher than the related Option
purchase price.
7.3 Free Standing SARs. Free Standing SARs shall be exercisable
at the time, to the extent and upon the terms and conditions set forth in the
applicable Agreement. The base price of a Free Standing SAR shall be not less
than 100% of the Fair Market Value of the shares of the applicable series of
Common Stock on the date of grant of the Free Standing SAR. Subject to the
limitations of the Plan, upon the exercise of a Free Standing SAR, the Holder
thereof shall be entitled to receive from the Company, for each share of TCOMA,
LBTYA or TCIVA, as applicable, with respect to which the Free Standing SAR is
being exercised, consideration (in the form determined as provided in Section
7.4) equal in value to the excess of the Fair Market Value of a share of TCOMA,
LBTYA or TCIVA, as applicable, on the date of exercise over the base price per
share of such Free Standing SAR.
7.4 Consideration. The consideration to be received upon the
exercise of an SAR by the Holder shall be paid in cash, shares of the
applicable series of Common Stock (valued at Fair Market Value on the date of
exercise of such SAR) or a combination of cash and shares of such series of
Common Stock as specified in the Agreement, or, if so provided in the
Agreement, either as determined by the Committee in its sole discretion or as
elected by the Holder, provided that the Committee shall have the sole
discretion to approve or disapprove the election by a Holder to receive cash in
full or partial settlement of an SAR, which approval or disapproval shall,
unless otherwise permitted by Rule 16b-3, be given after such election is made.
The Company's obligation arising upon the exercise of an SAR may be paid
currently or on a deferred basis with such interest or earnings equivalent as
the Committee may determine. No fractional shares of Common Stock shall be
issuable upon exercise of an SAR and, unless otherwise provided in the
applicable Agreement, the Holder will receive cash in lieu of fractional
shares. Unless the Committee shall otherwise determine, to the extent a Free
Standing SAR is exercisable, it will be exercised automatically for cash on its
expiration date.
7.5 Limitations. The applicable Agreement may provide for a limit
on the amount payable to a Holder upon exercise of SARs at any time or in the
aggregate, for a limit on the number of SARs that may be exercised by the
Holder in whole or in part for cash during any specified period, for a limit on
the time periods during which a Holder may exercise SARs and for such other
limits on the rights of the Holder and such other terms and conditions of the
SAR as the Committee may determine, including, without limitation, a condition
that the SAR may be exercised only in accordance with rules and regulations
adopted by the Committee from time to time. Unless otherwise so provided in
the applicable Agreement, any such limit relating to a Tandem SAR shall not
restrict the exercisability of the related Option. Such rules and regulations
may govern the right to exercise SARs granted prior to the adoption or
amendment of such rules and regulations as well as SARs granted thereafter.
7.6 Exercise. For purposes of this Article VII, the date of
exercise of an SAR shall mean the date on which the Company shall have received
notice from the Holder of the SAR of the exercise of such SAR.
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7.7 Nontransferability. Unless otherwise determined by the
Committee and provided in the applicable Agreement, SARs shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a domestic relations order and, except as otherwise required
pursuant to a domestic relations order, SARs may be exercised during the
lifetime of the Holder thereof only by such Holder (or his or her court
appointed legal representative).
ARTICLE VIII
RESTRICTED SHARES
8.1 Grant. Subject to the limitations of the Plan, the Committee
shall designate those eligible persons to be granted awards of Restricted
Shares, shall determine the time when each such Award shall be granted, whether
shares of Common Stock covered by awards of Restricted Shares will be issued at
the beginning or the end of the Restriction Period and whether Dividend
Equivalents will be paid during the Restriction Period in the event shares of
the applicable series of Common Stock are to be issued at the end of the
Restriction Period, and shall designate (or set forth the basis for
determining) the Vesting Date or Vesting Dates for each award of Restricted
Shares and may prescribe other restrictions, terms and conditions applicable to
the vesting of such Restricted Shares in addition to those provided in the
Plan. The Committee shall determine the price, if any, to be paid by the
Holder for the Restricted Shares; provided, however, that the issuance of
Restricted Shares shall be made for at least the minimum consideration
necessary to permit such Restricted Shares to be deemed fully paid and
nonassessable. All determinations made by the Committee pursuant to this
Section 8.1 shall be specified in the Agreement.
8.2 Issuance of Restricted Shares at Beginning of the Restriction
Period. If shares of the applicable series of Common Stock are issued at the
beginning of the Restriction Period, the stock certificate or certificates
representing such Restricted Shares shall be registered in the name of the
Holder to whom such Restricted Shares shall have been awarded. During the
Restriction Period, certificates representing the Restricted Shares and any
securities constituting Retained Distributions shall bear a restrictive legend
to the effect that ownership of the Restricted Shares (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are
subject to the restrictions, terms and conditions provided in the Plan and the
applicable Agreement. Such certificates shall remain in the custody of the
Company and the Holder shall deposit with the Company stock powers or other
instruments of assignment, each endorsed in blank, so as to permit retransfer
to the Company of all or any portion of the Restricted Shares and any
securities constituting Retained Distributions that shall be forfeited or
otherwise not become vested in accordance with the Plan and the applicable
Agreement.
8.3 Restrictions. Restricted Shares issued at the beginning of
the Restriction Period shall constitute issued and outstanding shares of the
applicable series of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Shares, to receive and retain such
dividends and distributions, as the Committee may in its sole discretion
designate, paid or distributed on such Restricted Shares and to exercise all
other rights, powers and privileges of a Holder of shares of the applicable
series of Common Stock with respect to such Restricted Shares; except, that (a)
the Holder will not be entitled to delivery of the stock certificate or
certificates representing such
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Restricted Shares until the Restriction Period shall have expired and unless
all other vesting requirements with respect thereto shall have been fulfilled
or waived; (b) the Company will retain custody of the stock certificate or
certificates representing the Restricted Shares during the Restriction Period
as provided in Section 8.2; (c) other than such dividends and distributions as
the Committee may in its sole discretion designate, the Company will retain
custody of all distributions ("Retained Distributions") made or declared with
respect to the Restricted Shares (and such Retained Distributions will be
subject to the same restrictions, terms and vesting and other conditions as are
applicable to the Restricted Shares) until such time, if ever, as the
Restricted Shares with respect to which such Retained Distributions shall have
been made, paid or declared shall have become vested, and such Retained
Distributions shall not bear interest or be segregated in a separate account;
(d) the Holder may not sell, assign, transfer, pledge, exchange, encumber or
dispose of the Restricted Shares or any Retained Distributions or his interest
in any of them during the Restriction Period; and (e) a breach of any
restrictions, terms or conditions provided in the Plan or established by the
Committee with respect to any Restricted Shares or Retained Distributions will
cause a forfeiture of such Restricted Shares and any Retained Distributions
with respect thereto.
8.4 Issuance of Stock at End of the Restriction Period.
Restricted Shares issued at the end of the Restriction Period shall not
constitute issued and outstanding shares of the applicable series of Common
Stock and the Holder shall not have any of the rights of a stockholder with
respect to the shares of Common Stock covered by such an award of Restricted
Shares, in each case until such shares shall have been transferred to the
Holder at the end of the Restriction Period. If and to the extent that shares
of Common Stock are to be issued at the end of the Restriction Period, the
Holder shall be entitled to receive Dividend Equivalents with respect to the
shares of Common Stock covered thereby either (i) during the Restriction Period
or (ii) in accordance with the rules applicable to Retained Distributions, as
the Committee may specify in the Agreement.
8.5 Cash Awards. In connection with any award of Restricted
Shares, an Agreement may provide for the payment of a cash amount to the Holder
of such Restricted Shares at any time after such Restricted Shares shall have
become vested. Such cash awards shall be payable in accordance with such
additional restrictions, terms and conditions as shall be prescribed by the
Committee in the Agreement and shall be in addition to any other salary,
incentive, bonus or other compensation payments which such Holder shall be
otherwise entitled or eligible to receive from the Company.
8.6 Completion of Restriction Period. On the Vesting Date with
respect to each award of Restricted Shares, and the satisfaction of any other
applicable restrictions, terms and conditions (a) all or the applicable portion
of such Restricted Shares shall become vested, (b) any Retained Distributions
and any unpaid Dividend Equivalents with respect to such Restricted Shares
shall become vested to the extent that the Restricted Shares related thereto
shall have become vested and (c) any cash award to be received by the Holder
with respect to such Restricted Shares shall become payable, all in accordance
with the terms of the applicable Agreement. Any such Restricted Shares,
Retained Distributions and any unpaid Dividend Equivalents that shall not
become vested shall be forfeited to the Company, and the Holder shall not
thereafter have any rights (including dividend and voting rights) with respect
to such Restricted Shares, Retained Distributions and any unpaid Dividend
Equivalents that shall have been so forfeited. The Committee may, in its
discretion, provide that the delivery of any Restricted Shares, Retained
Distributions and unpaid Dividend
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<PAGE> 15
Equivalents that shall have become vested, and payment of any cash awards that
shall have become payable, shall be deferred until such date or dates as the
recipient may elect. Any election of a recipient pursuant to the preceding
sentence shall be filed in writing with the Committee in accordance with such
rules and regulations, including any deadline for the making of such an
election, as the Committee may provide.
ARTICLE IX
STOCK UNITS
9.1 Grant. In addition to granting awards of Options, SARs and
Restricted Shares, the Committee shall have authority to grant to eligible
persons awards of Stock Units which may be in the form of shares of TCOMA,
LBTYA or TCIVA or units, the value of which is based, in whole or in part, on
the Fair Market Value of the shares of any such series of Common Stock.
Subject to the provisions of the Plan, including any rules established pursuant
to Section 9.2, awards of Stock Units shall be subject to such terms,
restrictions, conditions, vesting requirements and payment rules as the
Committee may determine in its sole discretion, which need not be identical for
each Award. The determinations made by the Committee pursuant to this Section
9.1 shall be specified in the applicable Agreement.
9.2 Rules. The Committee may, in its sole discretion, establish
any or all of the following rules for application to an award of Stock Units:
(a) Any shares of Common Stock which are part of an award
of Stock Units may not be assigned, sold, transferred, pledged or
otherwise encumbered prior to the date on which the shares are issued,
or if later, the date provided by the Committee at the time of the
Award.
(b) Such Awards may provide for the payment of cash
consideration by the person to whom such Award is granted or provide
that the Award, and Common Stock to be issued in connection therewith,
if applicable, shall be delivered without the payment of cash
consideration; provided, however, that the issuance of any shares of
Common Stock in connection with an award of Stock Units shall be for
at least the minimum consideration necessary to permit such shares to
be deemed fully paid and nonassessable.
(c) Awards of Stock Units may relate in whole or in part
to performance or other criteria established by the Committee at the
time of grant.
(d) Awards of Stock Units may provide for deferred
payment schedules, vesting over a specified period of employment, the
payment (on a current or deferred basis) of dividend equivalent
amounts with respect to the number of shares of Common Stock covered
by the Award, and elections by the employee to defer payment of the
Award or the lifting of restrictions on the Award, if any.
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<PAGE> 16
(e) In such circumstances as the Committee may deem
advisable, the Committee may waive or otherwise remove, in whole or in
part, any restrictions or limitations to which a Stock Unit Award was
made subject at the time of grant.
ARTICLE X
PERFORMANCE AWARDS
10.1 Terms of Performance Awards. Without limiting the type or
number of Awards that may be made under the other provisions of this Plan, an
Award may be in the form of a Performance Award. A Performance Award shall be
paid, vested or otherwise deliverable solely on account of the attainment of
one or more pre-established, objective Performance Goals established by the
Committee prior to the earlier to occur of (i) 90 days after the commencement
of the period of service to which the Performance Goal relates and (ii) the
lapse of 25% of the period of service (as scheduled in good faith at the time
the goal is established), and in any event while the outcome is substantially
uncertain. A Performance Goal is objective if a third party having knowledge
of the relevant facts could determine whether the goal is met.
10.2 Performance Goal Criteria. Such a Performance Goal may be
based on one or more business criteria that apply to the individual, one or
more business units of the Company, or the Company as a whole, and may include
one or more of the following: revenue, net income, stock price, market share,
earnings per share, cash flow, return on equity, return on assets or decrease
in costs. Unless otherwise stated, such a Performance Goal need not be based
upon an increase or positive result under a particular business criterion and
could include, for example, maintaining the status quo or limiting economic
losses (measured, in each case, by reference to specific business criteria). In
interpreting Plan provisions applicable to Performance Goals and Performance
Awards, it is the intent of the Plan to conform with the standards of Section
162(m) of the Code and Treasury Regulation Section 1.162-27(e)(2)(i), and the
Committee in establishing such goals and interpreting the Plan shall be guided
by such provisions.
10.3 Committee Certification. Prior to the payment of any
compensation based on the achievement of Performance Goals, the Committee must
certify in writing that applicable Performance Goals and any of the material
terms thereof were, in fact, satisfied. Subject to the foregoing provisions,
the terms, conditions and limitations applicable to any Performance Awards made
pursuant to this Plan shall be determined by the Committee.
10.4 Certain Limitations. Notwithstanding anything to the contrary
contained in this Plan, any Performance Awards made hereunder shall be limited
so that no person may be granted Performance Awards consisting of cash or in
any other form permitted under this Plan (other than Awards consisting of
Options or SARs or otherwise consisting of shares of TCOMA, LBTYA or TCIVA or
units denominated in such shares, or, in either case, additional cash amounts
related to such an Award) in respect of any one-year period having a value
determined on the date of grant in excess of $10,000,000.
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ARTICLE XI
GENERAL PROVISIONS
11.1 Acceleration of Options, SARs, Restricted Shares, Stock Units
and Performance Awards.
(a) Death or Disability. If a Holder's employment shall
terminate by reason of death or Disability, notwithstanding any
contrary waiting period, installment period, vesting schedule or
Restriction Period in any Agreement or in the Plan, unless the
applicable Agreement provides otherwise: (i) in the case of an Option
or SAR, each outstanding Option or SAR granted under the Plan shall
immediately become exercisable in full in respect of the aggregate
number of shares covered thereby; (ii) in the case of Restricted
Shares, the Restriction Period applicable to each such award of
Restricted Shares shall be deemed to have expired and all such
Restricted Shares, any related Retained Distributions and any unpaid
Dividend Equivalents shall become vested and any cash amounts payable
pursuant to the applicable Agreement shall be adjusted in such manner
as may be provided in the Agreement, (iii) in the case of Stock Units,
each such award of Stock Units shall become vested in full, and (iv)
in the case of Performance Awards, each such Performance Award shall
become vested in full.
(b) Approved Transactions; Board Change; Control
Purchase. In the event of any Approved Transaction, Board Change or
Control Purchase, notwithstanding any contrary waiting period,
installment period, vesting schedule or Restriction Period in any
Agreement or in the Plan, unless the applicable Agreement provides
otherwise: (i) in the case of an Option or SAR, each such outstanding
Option or SAR granted under the Plan shall become exercisable in full
in respect of the aggregate number of shares covered thereby; (ii) in
the case of Restricted Shares, the Restriction Period applicable to
each such award of Restricted Shares shall be deemed to have expired
and all such Restricted Shares, any related Retained Distributions and
any unpaid Dividend Equivalents shall become vested and any cash
amounts payable pursuant to the applicable Agreement shall be adjusted
in such manner as may be provided in the Agreement; (iii) in the case
of Stock Units, each such award of Stock Units shall become vested in
full; and (iv) in the case of Performance Awards, all Performance
Goals shall thereupon be deemed to have been achieved, and all
Performance Awards shall thereupon be deemed to be fully vested and
immediately payable, in each case effective upon the Board Change or
Control Purchase or immediately prior to consummation of the Approved
Transaction; provided, however, that any Options, SARs or, if
applicable, Stock Units not theretofore exercised shall terminate upon
consummation of the Approved Transaction. Notwithstanding the
foregoing, unless otherwise provided in the applicable Agreement, the
Committee may, in its discretion, determine that any or all
outstanding Awards of any or all types granted pursuant to the Plan
will not vest or become exercisable on an accelerated basis nor
Performance Goals be deemed to have been achieved 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
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<PAGE> 18
of, such action as in the opinion of the Committee is equitable and
appropriate to substitute a new Award for such Award or to assume such
Award and in order to make such new or assumed Award, as nearly as may
be practicable, equivalent to the old Award (before giving effect to
any acceleration of the vesting or exercisability thereof), taking
into account, to the extent applicable, the kind and amount of
securities, cash or other assets into or for which the applicable
series of Common Stock may be changed, converted or exchanged in
connection with the Approved Transaction.
11.2 Termination of Employment.
(a) General. If a Holder's employment shall terminate
prior to the complete exercise of an Option or SAR (or deemed exercise
thereof, as provided in Section 7.2) or during the Restriction Period
with respect to any Restricted Shares or prior to the vesting or
complete exercise of any Stock Units or prior to the vesting of any
Performance Award, then such Option, SAR, or Stock Unit shall
thereafter be exercisable, such Performance Award shall thereafter
vest, and the Holder's rights to any unvested Restricted Shares,
Retained Distributions, unpaid Dividend Equivalents and cash amounts
and any such unvested Stock Units shall thereafter vest, solely to the
extent provided in the applicable Agreement; provided, however, that
(i) no Option or SAR may be exercised after the scheduled expiration
date thereof; (ii) if the Holder's employment terminates by reason of
death or Disability, the Option or SAR shall remain exercisable for a
period of at least one year following such termination (but not later
than the scheduled expiration of such Option or SAR); and (iii) any
termination by the Company for cause will be treated in accordance
with the provisions of Section 11.2(b).
(b) Termination by Company for Cause. If a Holder's
employment with the Company or a Subsidiary shall be terminated by the
Company or such Subsidiary during the Restriction Period with respect
to any Restricted Shares, or prior to the exercise of any Option or
SAR, or prior to the vesting or complete exercise of any Stock Unit,
or prior to the vesting of any Performance Award, for cause (for these
purposes, cause shall have the meaning ascribed thereto in any
employment agreement to which such Holder is a party or, in the
absence thereof, shall include but not be limited to, insubordination,
dishonesty, incompetence, moral turpitude, other misconduct of any
kind and the refusal to perform his duties and responsibilities for
any reason other than illness or incapacity; provided, however, that
if such termination occurs within 12 months after an Approved
Transaction, Control Purchase or Board Change, termination for cause
shall mean only a felony conviction for fraud, misappropriation or
embezzlement), then (i) all Options and SARs and all unvested or
unexercised Stock Units held by such Holder shall immediately
terminate, (ii) such Holder's rights to all Restricted Shares,
Retained Distributions, any unpaid Dividend Equivalents and any cash
awards shall be forfeited immediately and (iii) such Holder's interest
in all unvested Performance Awards shall be forfeited immediately.
(c) Miscellaneous. The Committee may determine whether
any given leave of absence constitutes a termination of employment;
provided, however, that for purposes of the Plan (i) a leave of
absence, duly authorized in writing by the Company for military
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service or sickness, or for any other purpose approved by the Company
if the period of such leave does not exceed 90 days, and (ii) a leave
of absence in excess of 90 days, duly authorized in writing by the
Company, provided the employee's right to reemployment is guaranteed
either by statute or contract, shall not be deemed a termination of
employment. Awards made under the Plan shall not be affected by any
change of employment so long as the Holder continues to be an employee
of the Company or any Subsidiary.
11.3 Right of Company to Terminate Employment. Nothing contained
in the Plan or in any Award, and no action of the Company or the Committee with
respect thereto, shall confer or be construed to confer on any Holder 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 a Subsidiary to terminate
the employment of the Holder at any time, with or without cause; subject,
however, to the provisions of any employment agreement between the Holder and
the Company or any Subsidiary.
11.4 Nonalienation of Benefits. No right or benefit under the Plan
shall be subject to anticipation, alienation, sale, assignment, hypothecation,
pledge, exchange, transfer, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void. No right or benefit hereunder shall
in any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits.
11.5 Written Agreement. Each grant of an Option under the Plan
shall be evidenced by a stock option agreement which shall designate the
Options granted thereunder as Incentive Stock Options or Nonqualified Stock
Options; each SAR shall be evidenced by a stock appreciation rights agreement;
each award of Restricted Shares shall be evidenced by a restricted shares
agreement; each award of Stock Units shall be evidenced by a stock units
agreement; each Performance Award shall be evidenced by a performance award
agreement, each in such form and containing such terms and provisions not
inconsistent with the provisions of the Plan as the Committee from time to time
shall approve; provided, however, that if more than one type of Award is made
to the same Holder, such Awards may be evidenced by a single agreement with
such Holder. Each grantee of an Option, SAR, Restricted Shares, Stock Units or
Performance Awards shall be notified promptly of such grant and a written
agreement shall be promptly executed and delivered by the Company and the
grantee, provided that, in the discretion of the Committee, such grant of
Options, SARs, Restricted Shares, Stock Units or Performance Award shall
terminate if such written agreement is not signed by such grantee (or his
attorney) and delivered to the Company within 60 days after the date the
Committee approved such grant. Any such written agreement may contain (but
shall not be required to contain) such provisions as the Committee deems
appropriate (i) to insure that the penalty provisions of Section 4999 of the
Code will not apply to any stock or cash received by the Holder from the
Company or (ii) to provide cash payments to the Holder to mitigate the impact
of such penalty provisions upon the Holder. Any such agreement may be
supplemented or amended from time to time as approved by the Committee as
contemplated by Section 11.8(b).
11.6 Designation of Beneficiaries. Each person who shall be
granted an Award under the Plan may designate a beneficiary or beneficiaries
and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Committee on a form to
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be prescribed by it, provided that no such designation shall be effective
unless so filed prior to the death of such person.
11.7 Right of First Refusal. The Agreements may contain such
provisions as the Committee shall determine to the effect that if a Holder
elects to sell all or any shares of Common Stock that such Holder acquired upon
the exercise of an Option or SAR or upon the vesting of Restricted Shares or
Stock Units awarded under the Plan, then such Holder shall not sell such shares
unless such Holder shall have first offered in writing to sell such shares to
the Company at Fair Market Value on a date specified in such offer (which date
shall be at least three business days and not more than ten business days
following the date of such offer). In any such event, certificates
representing shares issued upon exercise of Options or SARs and the vesting of
Restricted Shares or Stock Units shall bear a restrictive legend to the effect
that transferability of such shares are subject to the restrictions contained
in the Plan and the applicable Agreement and the Company may cause the transfer
agent for the Common Stock to place a stop transfer order with respect to such
shares.
11.8 Termination and Amendment.
(a) General. Unless the Plan shall theretofore have been
terminated as hereinafter provided, no Awards may be made under the
Plan on or after the tenth anniversary of the Effective Date. The
Board or the Committee may at any time prior to the tenth anniversary
of the Effective Date terminate the Plan, and may, from time to time,
suspend or discontinue the Plan or modify or amend the Plan in such
respects as it shall deem advisable; except that no such modification
or amendment shall be effective prior to approval by the Company's
stockholders to the extent such approval is then required pursuant to
Rule 16b-3 in order to preserve the applicability of any exemption
provided by such rule to any Award then outstanding (unless the holder
of such Award consents) or to the extent stockholder approval is
otherwise required by applicable legal requirements.
(b) Modification. No termination, modification or
amendment of the Plan may, without the consent of the person to whom
any Award shall theretofore have been granted, adversely affect the
rights of such person with respect to such Award. No modification,
extension, renewal or other change in any Award granted under the Plan
shall be made after the grant of such Award, unless the same is
consistent with the provisions of the Plan. With the consent of the
Holder and subject to the terms and conditions of the Plan (including
Section 11.8(a)), the Committee may amend outstanding Agreements with
any Holder, including, without limitation, any amendment which would
(i) accelerate the time or times at which the Award may be exercised
and/or (ii) extend the scheduled expiration date of the Award.
Without limiting the generality of the foregoing, the Committee may,
but solely with the Holder's consent unless otherwise provided in the
Agreement, agree to cancel any Award under the Plan and issue a new
Award 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 made. Nothing contained in the foregoing provisions of
this Section 11.8(b) shall be construed to prevent the Committee from
providing in any Agreement that the rights of the Holder with respect
to the Award evidenced thereby shall be subject to such rules and
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regulations as the Committee may, subject to the express provisions of
the Plan, adopt from time to time, or impair the enforceability of any
such provision.
11.9 Government and Other Regulations. The obligation of the
Company with respect to Awards shall be subject to all applicable laws, rules
and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of any registration
statement required under the Securities Act of 1933, and the rules and
regulations of any securities exchange or association on which the Common Stock
may be listed or quoted. For so long as the TCOMA, LBTYA or TCIVA is
registered under the Exchange Act, the Company shall use its reasonable efforts
to comply with any legal requirements (i) to maintain a registration statement
in effect under the Securities Act of 1933 with respect to all shares of the
applicable of such series of Common Stock that may be issued to Holders under
the Plan, and (ii) to file in a timely manner all reports required to be filed
by it under the Exchange Act.
11.10 Withholding. The Company's obligation to deliver shares of
TCOMA, LBTYA or TCIVA or pay cash in respect of any Award under the Plan shall
be subject to applicable federal, state and local tax withholding requirements.
Federal, state and local withholding tax due at the time of an Award, upon the
exercise of any Option or SAR or upon the vesting of, or expiration of
restrictions with respect to, Restricted Shares or Stock Units, as appropriate,
may, in the discretion of the Committee, be paid in shares of the applicable
series of Common Stock already owned by the Holder or through the withholding
of shares otherwise issuable to such Holder, upon such terms and conditions
(including, without limitation, the conditions referenced in Section 6.6) as
the Committee shall determine. If the Holder shall fail to pay, or make
arrangements satisfactory to the Committee for the payment to the Company of
all such federal, state and local taxes required to be withheld by the Company,
then the Company shall, to the extent permitted by law, have the right to
deduct from any payment of any kind otherwise due to such Holder an amount
equal to any federal, state or local taxes of any kind required to be withheld
by the Company with respect to such Award.
11.11 Separability. It is the intent of the Company that Awards
under this Plan comply with certain exemptive provisions of Rule 16b-3 with
respect to persons subject to Section 16 of the Exchange Act unless otherwise
provided herein or in an Award Agreement, that any ambiguities or
inconsistencies in the construction of this Plan be interpreted to give effect
to such intention, and that if any provision of this Plan is found not to be
consistent with the availability of exemptions for grants and awards or
dispositions to the Company under Rule 16b-3, such provision shall be null and
void to the extent required to comply with such exemptive provisions of Rule
16b-3.
11.12 Non-Exclusivity of the Plan. Neither the adoption of the Plan
by the Board nor the submission of the Plan to the stockholders of the Company
for approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options and the awarding
of stock and cash otherwise than under the Plan, and such arrangements may be
either generally applicable or applicable only in specific cases.
11.13 Exclusion from Pension and Profit-Sharing Computation. By
acceptance of an Award, unless otherwise provided in the applicable Agreement,
each Holder shall be deemed to have
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agreed that such Award is special incentive compensation that will not be taken
into account, in any manner, as salary, compensation or bonus in determining
the amount of any payment under any pension, retirement or other employee
benefit plan, program or policy of the Company or any Subsidiary. In addition,
each beneficiary of a deceased Holder shall be deemed to have agreed that such
Award will not affect the amount of any life insurance coverage, if any,
provided by the Company on the life of the Holder which is payable to such
beneficiary under any life insurance plan covering employees of the Company or
any Subsidiary.
11.14 Unfunded Plan. Neither the Company nor any Subsidiary shall
be required to segregate any cash or any shares of Common Stock which may at
any time be represented by Awards and the Plan shall constitute an "unfunded"
plan of the Company. Except as provided in Article VIII with respect to awards
of Restricted Shares and except as expressly set forth in writing, no employee
shall have voting or other rights with respect to the shares of Common Stock
covered by an Award prior to the delivery of such shares. Neither the Company
nor any Subsidiary shall, by any provisions of the Plan, be deemed to be a
trustee of any Common Stock or any other property, and the liabilities of the
Company and any Subsidiary to any employee pursuant to the Plan shall be those
of a debtor pursuant to such contract obligations as are created by or pursuant
to the Plan, and the rights of any employee, former employee or beneficiary
under the Plan shall be limited to those of a general creditor of the Company
or the applicable Subsidiary, as the case may be. In its sole discretion, the
Board may authorize the creation of trusts or other arrangements to meet the
obligations of the Company under the Plan, provided, however, that the
existence of such trusts or other arrangements is consistent with the unfunded
status of the Plan.
11.15 Governing Law. The Plan shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
11.16 Accounts. The delivery of any shares of Common Stock and the
payment of any amount in respect of an Award shall be for the account of the
Company or the applicable Subsidiary, as the case may be, and any such delivery
or payment shall not be made until the recipient shall have paid or made
satisfactory arrangements for the payment of any applicable withholding taxes
as provided in Section 11.10.
11.17 Legends. In addition to any legend contemplated by Section
11.7, each certificate evidencing Common Stock subject to an Award shall bear
such legends as the Committee deems necessary or appropriate to reflect or
refer to any terms, conditions or restrictions of the Award applicable to such
shares, including, without limitation, any to the effect that the shares
represented thereby may not be disposed of unless the Company has received an
opinion of counsel, acceptable to the Company, that such disposition will not
violate any federal or state securities laws.
11.18 Company's Rights. The grant of Awards pursuant to the Plan
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.
-22-
<PAGE> 1
Exhibit 5
BAKER & BOTTS, L.L.P.
599 Lexington Avenue
New York, New York 10022
November 13, 1997
Board of Directors
Tele-Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
Dear Sirs:
We are counsel for Tele-Communications, Inc., a Delaware corporation
(the "Company"), and this opinion is being delivered in connection with the
filing of the Company's Registration Statement on Form S-8 (the "Registration
Statement"), with respect to the registration under the Securities Act of 1933,
as amended (the "Act"), of 8,000,000 shares of the Company's
Tele-Communications, Inc. Series A TCI Ventures Group Common Stock, par value
$1.00 per share (the "Shares"), that are issuable as awards or upon the
exercise of awards granted or to be granted under the following plans: the
Amended and Restated Tele-Communications, Inc. 1994 Stock Incentive Plan, the
Amended and Restated Tele-Communications, Inc. 1995 Employee Stock Incentive
Plan and the Amended and Restated Tele-Communications, Inc. 1996 Incentive
Plan (collectively, the "Plans").
In furnishing our opinion, we have examined, among other things, the
originals, certified copies or copies otherwise identified to our satisfaction
as being copies of originals, of the Restated Certificate of Incorporation and
By-Laws of the Company, each as amended; minutes of the proceedings of the
Company's Board of Directors, including committees thereof, relating to the
adoption of each of the Plans and the reservation of shares for issuance
thereunder; and such other documents, records, certificates of public officials
and questions of law as we deemed necessary or appropriate for the purpose of
this opinion. In rendering this opinion, we have relied, to the extent we
deemed such reliance appropriate, on certificates of officers of the Company as
to factual matters. We have assumed the authenticity of all documents submitted
to us as originals and the conformity to authentic original documents of all
documents submitted to us as certified, conformed or reproduction copies. We
have further assumed that there will be no changes in applicable law between the
date of this opinion and the date the Shares are issued or sold pursuant to the
applicable Plan and this Registration Statement.
Based upon the foregoing, it is our opinion that each of the Shares
that may be issued as awards, or issued and sold upon the exercise of awards,
granted or to be granted under each of the Plans has been duly authorized and,
when issued and sold in accordance with the terms of the applicable Plan (and
any applicable agreement pertaining to awards granted or to be granted under
such Plan), will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm contained therein under
the heading "Item 5. Interest of Named Experts and Counsel" in Part II of the
Registration Statement. In giving the foregoing consent, we do not admit that
we are in the category of persons whose consent is required under Section 7 of
the Act, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
<PAGE> 2
As you are aware, Jerome H. Kern, special counsel to Baker & Botts,
L.L.P., is a director of the Company, and Mr. Kern and certain partners of Baker
& Botts, L.L.P. hold shares, restricted shares and/or options to purchase
shares of common stock of the Company.
Very truly yours,
/s/ Baker & Botts, L.L.P.
---------------------------
BAKER & BOTTS, L.L.P.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Tele-Communications, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Tele-Communications, Inc. of our reports, dated March 24, 1997,
relating to the consolidated balance sheets of Tele-Communications, Inc. and
subsidiaries as of December 31, 1996 and 1995, 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, 1996, and all related
financial statement schedules, which reports appear in the December 31, 1996
Annual Report on Form 10-K of Tele-Communications, Inc., as amended by Form
10-K/A (Amendment No. 1).
/s/ KPMG Peat Marwick LLP
---------------------------
KPMG Peat Marwick LLP
Denver, Colorado
November 10, 1997
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Tele-Communications, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Tele-Communications, Inc. of our report, dated March 24, 1997,
relating to the combined balance sheets of TCI Group as of December 31, 1996
and 1995, and the related combined statements of operations, equity, and cash
flows for each of the years in the three-year period ended December 31, 1996,
which report appears in the December 31, 1996 Annual Report on Form 10-K of
Tele- Communications, Inc., as amended by Form 10-K/A (Amendment No. 1). Our
report covering the combined financial statements refers to the effects of not
consolidating TCI Group's interest in Liberty Media Group for all periods that
TCI Group has an interest in Liberty Media Group.
/s/ KPMG Peat Marwick LLP
---------------------------
KPMG Peat Marwick LLP
Denver, Colorado
November 10, 1997
<PAGE> 1
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Tele-Communications, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Tele-Communications, Inc. of our report, dated March 24, 1997,
relating to the combined balance sheets of Liberty Media Group as of December
31, 1996 and 1995, and the related combined statements of operations, equity,
and cash flows for each of the years in the three- year period ended December
31, 1996, which report appears in the December 31, 1996 Annual Report on Form
10-K of Tele-Communications, Inc., as amended by Form 10-K/A (Amendment No.
1).
/s/ KPMG Peat Marwick LLP
---------------------------
KPMG Peat Marwick LLP
Denver, Colorado
November 10, 1997
<PAGE> 1
Exhibit 23.5
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders of
Telewest Communications plc:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Tele-Communications, Inc. of our report, dated March 11, 1997,
relating to the consolidated balance sheet of Telewest Communications plc and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of operations and cash flows for each of the years in the three year
period ended December 31, 1996, which report appears in the December 31, 1996
Annual Report on Form 10-K of Tele-Communications, Inc., as amended by Form
10-K/A (Amendment No. 1).
/s/ KPMG Audit Plc
KPMG Audit Plc
Chartered Accountants
Registered Auditors
London, England
November 7, 1997
<PAGE> 1
Exhibit 23.6
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the registration statement on
Form S-8 of Tele-Communications, Inc. of our report dated March 14, 1997 on the
consolidated financial statements of Sprint Spectrum Holding Company, L.P. and
subsidiaries (which expresses an unqualified opinion and includes an
explanatory paragraph referring to the developmental stage of Sprint Spectrum
Holding Company, L.P. and subsidiaries) for each of the two years in the period
ended December 31, 1996, for the period from October 24, 1994 (date of
inception) to December 31, 1994 and for the cumulative period from October 24,
1994 (date of inception) to December 31, 1996 appearing in the Annual Report on
Form 10-K of Tele-Communications, Inc., as amended by Form 10-K/A (Amendment
No. 1), for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Kansas City, Missouri
November 10, 1997
<PAGE> 1
Exhibit 23.7
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of
Tele-Communications, Inc. of our report dated March 7, 1997 on the financial
statements of American PCS, L.P. (A Delaware Limited Partnership) as of and for
the year ended December 31, 1996 referred to in the consolidated financial
statements of Sprint Spectrum Holding Company, L.P. and subsidiaries, which
appears in the Annual Report on Form l0-K of Tele-Communications, Inc., as
amended by Form 10-K/A (Amendment No. 1), for the year ended December 31, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Washington, D.C.
November 10, 1997
