Exhibit 10.9
[SERIES A]
FORM OF
LIBERTY MEDIA INTERNATIONAL, INC.
2004 INCENTIVE PLAN
(AS AMENDED AND RESTATED EFFECTIVE MARCH 9, 2005)
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement") is made as of
___________, 200__ (the "Effective Date"), by and between LIBERTY MEDIA
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and the individual
whose name, address and social security number appear on the signature page
hereto (the "Grantee").
The Company has adopted the Liberty Media International, Inc. 2004
Incentive Plan (As Amended and Restated Effective March 9, 2005) (the "Plan"), a
copy of which is attached to this Agreement as Exhibit A and by this reference
made a part hereof, for the benefit of eligible employees of, and independent
contractors providing services to, the Company and its Subsidiaries. Capitalized
terms used and not otherwise defined herein will have the meaning given thereto
in the Plan.
Pursuant to the Plan, the Compensation Committee (the "Committee")
appointed by the Board pursuant to Section 3.1 of the Plan to administer the
Plan has determined that it would be in the interest of the Company and its
stockholders to award an option to Grantee, subject to the conditions and
restrictions set forth herein and in the Plan, in order to provide the Grantee
additional remuneration for services rendered, to encourage the Grantee to
continue to provide services to the Company or its Subsidiaries and to increase
the Grantee's personal interest in the continued success and progress of the
Company.
The Company and the Grantee therefore agree as follows:
1. DEFINITIONS. The following terms, when used in this Agreement, have
the following meanings:
"Business Day" means any day other than Saturday, Sunday or a day on
which banking institutions in Denver, Colorado, are required or authorized to be
closed.
"Cause" has the meaning specified for "cause" in Section 11.2(b) of
the Plan.
"Close of Business" means, on any day, 5:00 p.m., Denver, Colorado
time.
"Committee" has the meaning specified in the recitals to this
Agreement.
"Company" has the meaning specified in the preamble to this Agreement.
"Effective Date" has the meaning specified in the preamble to this
Agreement.
"Exercise Price" means $ _____ per LBTYA share.
"Grantee" has the meaning specified in the preamble to this Agreement.
"LBYTA" means the Series A common stock, par value $.01 per share, of
the Company.
"Option" has the meaning specified in Section 2 of this Agreement.
"Option Shares" has the meaning specified in Section 2 of this
Agreement.
"Plan" has the meaning specified in the recitals of this Agreement.
"Required Withholding Amount" has the meaning specified in Section 5
of this Agreement.
"Special Termination Period" has the meaning specified in Section 7(d)
of this Agreement.
"Term" has the meaning specified in Section 2 of this Agreement.
"Termination of Service" means the Grantee's provision of services to
the Company and its Subsidiaries as an officer, employee or independent
contractor, terminates for any reason.
"Year of Continuous Service" has the meaning specified in Section 7(d)
of this Agreement.
2. GRANT OF OPTIONS. Subject to the terms and conditions herein,
pursuant to the Plan, the Company grants to the Grantee an option (the "Option")
to purchase from the Company the number of shares of LBTYA set forth on the
signature page hereto (the "Option Shares") at a purchase price per LBTYA share
equal to the Exercise Price. The Option granted herein is a "Nonqualified Stock
Option". The Option, to the extent it has become exercisable in accordance with
Section 3, will be exercisable in whole at any time or in part from time to time
during the period commencing on the Effective Date and expiring at the Close of
Business on _______, 20___ (the "Term"), subject to earlier termination as
provided in Section 7. The Exercise Price and number of Option Shares are
subject to adjustment pursuant to Section 10. No fractional shares of LBTYA will
be issuable upon exercise of an Option, and the Grantee will receive, in lieu of
any fractional share of LBTYA that the Grantee otherwise would receive upon such
exercise, cash equal to the fraction representing such fractional share
multiplied by the Fair Market Value of one share of LBTYA as of the date on
which such exercise is considered to occur pursuant to Section 4.
CONDITIONS OF EXERCISE.
3. Unless otherwise determined by the Committee in its sole
discretion, the Option will be exercisable only in accordance with the
conditions stated in this Section 3.
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(a) Except as otherwise provided in Section 11.1(b) of the Plan or in
the last sentence of this Section 3(a), the Option will not be exercisable
until June 22, 2005 and may be exercised thereafter only to the extent it
has become exercisable in accordance with the following schedule:
i. On and after ________, 200___, the Option shall be
exercisable as to 20% of the Option Shares;
ii. On and after ________, 200___, the Option shall be
exercisable as to 40% of the Option Shares;
iii. On and after ________, 200___, the Option shall be
exercisable as to 60% of the Option Shares;
iv. On and after ________, 200___, the Option shall be
exercisable as to 80% of the Option Shares; and
v. On and after ________, 200___, the Option shall be
exercisable as to 100% of the Option Shares.
Notwithstanding the foregoing, (x) the Option will become exercisable in full on
the date of Termination of Service if the Termination of Service occurs by
reason of Grantee's death or Disability, and (y) if the Termination of Service
is by the Company or a Subsidiary without Cause (as determined in the sole
discretion of the Committee) more than six months after the Effective Date, the
Option will become exercisable on the date of Termination of Service with
respect to the percentage of the Option Shares as to which the Option otherwise
would become exercisable during the remainder of the calendar year in which the
Termination of Service occurs.
(b) To the extent the Option becomes exercisable, the Option may be
exercised in whole or in part (at any time or from time to time, except as
otherwise provided herein) until expiration of the Term or earlier
termination thereof.
(c) The Grantee acknowledges and agrees that the Committee, in its
discretion and as contemplated by Section 3.3 of the Plan, may adopt rules
and regulations from time to time after the date hereof with respect to the
exercise of the Option and that the exercise by the Grantee of the Option
will be subject to the further condition that such exercise is made in
accordance with all such rules and regulations as the Committee may
determine are applicable thereto.
4. MANNER OF EXERCISE. The Option will be considered exercised (as to
the number of Option Shares specified in the notice referred to in Section 4(a)
below) on the latest of (i) the date of exercise designated in the written
notice referred to in Section 4(a) below, (ii) if the date so designated is not
a Business Day, the first Business Day following such date or (iii) the earliest
Business Day by which the Company has received all of the following:
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(a) Written notice, in such form as the Committee may require,
containing such representations and warranties as the Committee may require
and designating, among other things, the date of exercise and the number of
Option Shares to be purchased;
(b) Payment of the Exercise Price for each Option Share to be
purchased in any (or a combination) of the following forms: (i) cash, (ii)
check, (iii) 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 Exercise
Price (and, if applicable the Required Withholding Amount, as described in
Section 5 below), and/or (iv) any other form of payment contemplated by the
Plan, as the Committee may permit; and
(c) Any other documentation that the Committee may reasonably require.
5. MANDATORY WITHHOLDING FOR TAXES. The Grantee acknowledges and
agrees that the Company will deduct from the shares of LBTYA otherwise
deliverable upon exercise of the Option that number of shares of LBTYA (valued
at their Fair Market Value on the date of exercise) that is equal to the amount,
if any, of all federal, state and local taxes required to be withheld by the
Company upon such exercise, as determined by the Committee (the "Required
Withholding Amount"). If the Grantee elects to make payment of the Exercise
Price by delivery of irrevocable instructions to a broker to deliver promptly to
the Company the amount of sale or loan proceeds required to pay the Exercise
Price, such instructions may also include instructions to deliver the Required
Withholding Amount to the Company. In such case, the Company will notify the
broker promptly of the Committee's determination of the Required Withholding
Amount.
6. PAYMENT OR DELIVERY BY THE COMPANY. As soon as practicable after
receipt of all items referred to in Section 4, and subject to the withholding
referred to in Section 5, the Company will deliver or cause to be delivered to
the Grantee (i) certificates issued in the Grantee's name for the number of
Option Shares purchased upon exercise of the Option, and (ii) any cash payment
to which the Grantee is entitled in lieu of a fractional share of LBTYA, as
provided in Section 2 above. Any delivery of shares of LBYTA will be deemed
effected for all purposes when certificates representing such shares have been
delivered personally to the Grantee or, if delivery is by mail, when the stock
transfer agent of the Company has deposited the certificates in the United
States mail, addressed to the Grantee, and any cash payment will be deemed
effected when a check from the Company, payable to the Grantee and in the amount
equal to the amount of the cash payment, has been delivered personally to the
Grantee or deposited in the United States mail, addressed to the Grantee.
7. EARLY TERMINATION OF THE OPTION. Unless otherwise determined by the
Committee in its sole discretion, the Option will terminate, prior to the
expiration of the Term, at the time specified below:
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(a) Subject to Section 7(b), if Termination of Service occurs other
than (i) by the Company or a Subsidiary (whether for Cause or without
Cause) or (ii) by reason of Grantee's death or Disability, then the Option
will terminate at the Close of Business on the first Business Day following
the expiration of the 90-day period which began on the date of Termination
of Service.
(b) If the Grantee dies (i) prior to Termination of Service or prior
to the expiration of a period of time following Termination of Service
during which the Option remains exercisable as provided in Section 7(a) or
Section 7(c), as applicable, the Option will terminate at the Close of
Business on the first Business Day following the expiration of the one-year
period which began on the date of the Grantee's death, or (ii) prior to the
expiration of a period of time following Termination of Service during
which the Option remains exercisable as provided in Section 7(d), the
Option will terminate at the Close of Business on the first Business Day
following the expiration of (A) the one-year period which began on the date
of the Grantee's death or (B) the Special Termination Period, whichever
period is longer.
(c) Subject to Section 7(b), if Termination of Service occurs by
reason of Disability, then the Option will terminate at the Close of
Business on the first Business Day following the expiration of the one-year
period which began on the date of Termination of Service.
(d) If Termination of Service is by the Company or a Subsidiary
without Cause (as determined in the sole discretion of the Committee), the
Option will terminate at the Close of Business on the first Business Day
following the expiration of the Special Termination Period. The Special
Termination Period is the period of time beginning on the date of
Termination of Service and continuing for the number of days that is equal
to the sum of (a) 90, plus (b) 180 multiplied by the Grantee's total Years
of Continuous Service. A Year of Continuous Service means a consecutive
12-month period, measured by the Grantee's hire date (as reflected in the
payroll records of the Company or a Subsidiary) and the anniversaries of
that date, during which the Grantee is employed by the Company or a
Subsidiary without interruption. For purposes of determining the Grantee's
Years of Continuous Service, Grantee's employment with the Company's former
parent, Liberty Media Corporation ("LMC"), and any predecessor of the
Company or LMC will be included, provided that the Grantee's hire date with
the Company or a Subsidiary occurred within 30 days following the Grantee's
termination of employment with LMC or such predecessor. If the Grantee was
employed by a Subsidiary at the time of such Subsidiary's acquisition by
the Company, the Grantee's employment with the Subsidiary prior to the
acquisition date will not be included in determining the Grantee's Years of
Continuous Service unless the Committee, in its sole discretion, determines
that such prior employment will be included.
(e) If Termination of Service is by the Company or a Subsidiary for
Cause, then the Option will terminate immediately upon such Termination of
Service.
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In any event in which the Option remains exercisable for a period of
time following the date of Termination of Service as provided above, the Option
may be exercised during such period of time only to the extent the same was
exercisable as provided in Section 3 above on such date of Termination of
Service. Unless the Committee otherwise determines, neither a change of the
Grantee's employment from the Company to a Subsidiary or from a Subsidiary to
the Company or another Subsidiary, nor a change in Grantee's status from an
independent contractor to an employee, will be a Termination of Service for
purposes of this Agreement if such change of employment or status is made at the
request or with the express consent of the Company. Unless the Committee
otherwise determines, however, any such change of employment or status that is
not made at the request or with the express consent of the Company and any
change in Grantee's status from an employee to an independent contractor will be
a Termination of Service within the meaning of this Agreement. Notwithstanding
any period of time referenced in this Section 7 or any other provision of this
Section 7 that may be construed to the contrary, the Option will in any event
terminate upon the expiration of the Term.
8. NONTRANSFERABILITY. During the Grantee's lifetime, the Option is
not transferable (voluntarily or involuntarily) other than pursuant to a
Domestic Relations Order and, except as otherwise required pursuant to a
Domestic Relations Order, is exercisable only by the Grantee or the Grantee's
court appointed legal representative. The Grantee may designate a beneficiary or
beneficiaries to whom the Option will pass upon the Grantee's death and may
change such designation from time to time by filing a written designation of
beneficiary or beneficiaries with the Committee on the form annexed hereto as
Exhibit B or such other form as may be prescribed by the Committee, provided
that no such designation will be effective unless so filed prior to the death of
the Grantee. If no such designation is made or if the designated beneficiary
does not survive the Grantee's death, the Option will pass by will or the laws
of descent and distribution. Following the Grantee's death, the Option, if
otherwise exercisable, may be exercised by the person to whom such right passes
according to the foregoing and such person will be deemed the Grantee for
purposes of any applicable provisions of this Agreement.
9. NO STOCKHOLDER RIGHTS. Prior to the exercise of the Option in
accordance with the terms and conditions set forth in this Agreement, the
Grantee will not be deemed for any purpose to be, or to have any of the rights
of, a stockholder of the Company with respect to any Option Shares, nor will
the existence of this Agreement affect in any way the right or power of the
Company or its stockholders to accomplish any corporate act, including, without
limitation, the acts referred to in Section 11.16 of the Plan.
10. ADJUSTMENTS. If the outstanding shares of LBTYA are subdivided
into a greater number of shares (by stock dividend, stock split,
reclassification or otherwise) or are combined into a smaller number of shares
(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 any
shares of LBTYA, or other similar corporate event (including mergers or
consolidations other than those which constitute Approved Transactions, which
shall be governed by Section 11.1(b) of the Plan) affects shares of LBTYA such
that an adjustment is required to preserve the benefits or potential benefits
intended to be
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made available under this Agreement, then the Option will be subject to
adjustment (including, without limitation, as to the number of Option Shares and
the Exercise Price per share ) in the sole discretion of the Committee and in
such manner as the Committee may deem equitable and appropriate in connection
with the occurrence of any of the events described in this Section 10 following
the Effective Date.
11. RESTRICTIONS IMPOSED BY LAW. Without limiting the generality of
Section 11.8 of the Plan, the Grantee will not exercise the Option, and the
Company will not be obligated to make any cash payment or issue or cause to be
issued any shares of LBTYA, if counsel to the Company determines that such
exercise, payment or issuance would violate any applicable law or any rule or
regulation of any governmental authority or any rule or regulation of, or
agreement of the Company with, any securities exchange or association upon which
shares of LBTYA are listed or quoted. The Company will in no event be obligated
to take any affirmative action in order to cause the exercise of the Option or
the resulting payment of cash or issuance of shares of LBYTA to comply with any
such law, rule, regulation or agreement.
12. NOTICE. Unless the Company notifies the Grantee in writing of a
different procedure, any notice or other communication to the Company with
respect to this Agreement will be in writing and will be delivered personally or
sent by United States first class mail, postage prepaid and addressed as
follows:
Liberty Media International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Any notice or other communication to the Grantee with respect to this Agreement
will be in writing and will be delivered personally, or will be sent by United
States first class mail, postage prepaid, to the Grantee's address as listed in
the records of the Company on the Effective Date, unless the Company has
received written notification from the Grantee of a change of address.
13. AMENDMENT. Notwithstanding any other provision hereof, this
Agreement may be supplemented or amended from time to time as approved by the
Committee as contemplated in Section 11.7(b) of the Plan. Without limiting the
generality of the foregoing, without the consent of the Grantee,
(a) this Agreement may be amended or supplemented from time to time as
approved by the Committee (i) to cure any ambiguity or to correct or
supplement any provision herein which may be defective or inconsistent with
any other provision herein, or (ii) to add to the covenants and agreements
of the Company for the benefit of the Grantee or surrender any right or
power reserved to or conferred upon the Company in this Agreement, subject
to any required approval of the Company's stockholders and, provided, in
each case, that such changes or corrections will not adversely affect the
rights of the Grantee with respect to the Award evidenced hereby, or (iii)
to make such other changes as the Company, upon advice of counsel,
determines are necessary or
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advisable because of the adoption or promulgation of, or change in or of
the interpretation of, any law or governmental rule or regulation,
including any applicable federal or state securities laws; and
(b) subject to any required action by the Board or the stockholders of
the Company, the Option granted under this Agreement may be canceled by the
Company and a new Award made in substitution therefor, provided that the
Award so substituted will satisfy all of the requirements of the Plan as of
the date such new Award is made and no such action will adversely affect
any Option to the extent then exercisable.
14. GRANTEE EMPLOYMENT. Nothing contained in this Agreement, and no
action of the Company or the Committee with respect hereto, will confer or be
construed to confer on the Grantee any right to continue in the employ or
service of the Company or any of its Subsidiaries or interfere in any way with
the right of the Company or any Subsidiary to terminate the Grantee's employment
or service at any time, with or without cause.
15. NONALIENATION OF BENEFITS. Except as provided in Section 8 of this
Agreement, (i) no right or benefit under this Agreement will 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
will be void, and (ii) no right or benefit hereunder will in any manner be
liable for or subject to the debts, contracts, liabilities or torts of the
Grantee or other person entitled to such benefits.
16. GOVERNING LAW. This Agreement will be governed by, and construed
in accordance with, the internal laws of the State of Colorado. Each party
irrevocably submits to the general jurisdiction of the state and federal courts
located in the State of Colorado in any action to interpret or enforce this
Agreement and irrevocably waives any objection to jurisdiction that such party
may have based on inconvenience of forum.
17. CONSTRUCTION. References in this Agreement to "this Agreement" and
the words "herein," "hereof," "hereunder" and similar terms include all Exhibits
and Schedules appended hereto. The word "include" and all variations thereof are
used in an illustrative sense and not in a limiting sense. All decisions of the
Committee upon questions regarding this Agreement will be conclusive. Unless
otherwise expressly stated herein, in the event of any inconsistency between the
terms of the Plan and this Agreement, the terms of the Plan will control. The
headings of the sections of this Agreement have been included for convenience of
reference only, are not to be considered a part hereof and will in no way modify
or restrict any of the terms or provisions hereof.
18. DUPLICATE ORIGINALS. The Company and the Grantee may sign any
number of copies of this Agreement. Each signed copy will be an original, but
all of them together represent the same agreement.
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19. RULES BY COMMITTEE. The rights of the Grantee and the obligations
of the Company hereunder will be subject to such reasonable rules and
regulations as the Committee may adopt from time to time.
20. ENTIRE AGREEMENT. This Agreement is in satisfaction of and in lieu
of all prior discussions and agreements, oral or written, between the Company
and the Grantee regarding the subject matter hereof. The Grantee and the Company
hereby declare and represent that no promise or agreement not herein expressed
has been made and that this Agreement contains the entire agreement between the
parties hereto with respect to the Award and replaces and makes null and void
any prior agreements between the Grantee and the Company regarding the Award.
This Agreement will be binding upon and inure to the benefit of the parties and
their respective heirs, successors and assigns.
21. GRANTEE ACCEPTANCE. The Grantee will signify acceptance of the
terms and conditions of this Agreement by signing in the space provided at the
end hereof and returning a signed copy to the Company.
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SIGNATURE PAGE TO NON-QUALIFIED STOCK OPTION AGREEMENT
DATED AS OF ________, 200__ BETWEEN LIBERTY MEDIA INTERNATIONAL, INC.,
AND GRANTEE
LIBERTY MEDIA INTERNATIONAL, INC.
By:
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Name:
------------------------------------
Title:
-----------------------------------
ACCEPTED:
------------------------------------------
Grantee Name:
----------------------------
Address:
---------------------------------
SSN:
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Number of shares of LBTYA as to which Option is granted
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EXHIBIT A
TO
NON-QUALIFIED STOCK OPTION AGREEMENT
DATED AS OF _______, 200__ BETWEEN LIBERTY MEDIA INTERNATIONAL, INC.
AND GRANTEE
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EXHIBIT B
TO
NON-QUALIFIED STOCK OPTION AGREEMENT
DATED AS OF ________, 200__ BETWEEN LIBERTY MEDIA INTERNATIONAL, INC.
AND GRANTEE
DESIGNATION OF BENEFICIARY
I, ___________________________________________ (the "Grantee"), hereby
declare that upon my death ____________________________________ (the
"Beneficiary") of Name
_______________________________________________________________________________,
Street Address City State Zip Code
who is my ______________________________________________________, will be
entitled to the Relationship to Grantee
Option and all other rights accorded the Grantee by the above-referenced grant
agreement (the "Agreement").
It is understood that this Designation of Beneficiary is made pursuant
to the Agreement and is subject to the conditions stated herein, including the
Beneficiary's survival of the Grantee's death. If any such condition is not
satisfied, such rights will devolve according to the Grantee's will or the laws
of descent and distribution.
It is further understood that all prior designations of beneficiary
under the Agreement are hereby revoked and that this Designation of Beneficiary
may only be revoked in writing, signed by the Grantee, and filed with the
Company prior to the Grantee's death.
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Date Grantee
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