LIBERTY MEDIA CORPORATION 2000 INCENTIVE PLAN (As Amended and Restated Effective February 22, 2007) NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit (d)(5)
BUYSEASONS — DESIGNATED
(Online Grant)
(Online Grant)
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (“Agreement”) is made as of , 2009
(the “Effective Date”), by and between LIBERTY MEDIA CORPORATION, a Delaware corporation (the
“Company”), and the recipient of an award of Options granted by the Incentive Plan Committee of the
Board of Directors of the Company (the “Grantee”).
The Company has adopted the Liberty Media Corporation 2000 Incentive Plan (As Amended and
Restated Effective February 22, 2007) (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 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 Incentive Plan 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 Options to Grantee in accordance with the
terms of the Offer to Exchange dated March ___, 2009, subject to the conditions and restrictions
set forth herein and in the Plan.
The Company and the Grantee therefore agree as follows:
1. Definitions. The following terms, when used in this Agreement, have the following
meanings:
“Base Price” means (a) with respect to any Market Option, $ , and with respect to any
Premium Option, $ .
“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.
“Forfeitable Benefits” has the meaning specified in Section 8 of this Agreement.
“Grantee” has the meaning specified in the preamble to this Agreement.
“LINTA Stock” has the meaning specified in Section 2 of this Agreement.
“Market Option” means an Option having a Base Price equal to the Fair Market Value of a share
of LINTA Stock on the Effective Date.
“Misstatement Period” has the meaning specified in Section 8 of this Agreement.
“Option” has the meaning specified in Section 2 of this Agreement.
“Option Shares” has the meaning specified in Section 4(a) of this Agreement.
“Plan” has the meaning specified in the recitals of this Agreement.
“Premium Option” means an Option having a Base Price equal to the greater of $6.00 or the Fair
Market Value of a share of LINTA Stock on the Effective Date.
“Required Withholding Amount” has the meaning specified in Section 5 of this Agreement.
“Term” has the meaning specified in Section 2 of this Agreement.
2. Grant of Options. Subject to the terms and conditions herein, pursuant to the Plan, the
Company grants to the Grantee options to purchase from the Company, exercisable during the period
commencing on the Effective Date and expiring at Close of Business on the seventh anniversary of
the Effective Date (the “Term”), subject to earlier termination as provided in Section 7 below, at
the applicable Base Price, the number of shares of Liberty Media Corporation Series A Liberty
Interactive Common Stock (“LINTA Stock”) authorized by the Committee and set forth in the notice of
online grant delivered to the Grantee pursuant to the Company’s online Option grant program. The
options granted hereunder are “Nonqualified Stock Options” and are referred to herein as “Options.”
One-half of the total number of Options granted hereunder will be Market Options and one-half of
the total number of Options granted hereunder will be Premium Options. The Base Price of an Option
and the number of Options granted hereunder are subject to adjustment pursuant to Section 11 below.
No fractional shares of LINTA Stock will be issuable upon exercise of an Option, and the Grantee
will receive, in lieu of any fractional share of LINTA Stock 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 LINTA Stock as of the date on which such
exercise is considered to occur pursuant to Section 4 below.
3. Conditions of Exercise. Unless otherwise determined by the Committee in its sole
discretion, the Options will be exercisable only in accordance with the conditions stated in this
Section 3.
(a) Except as otherwise provided in Section 11.1(b) of the Plan, the Options may be
exercised only to the extent they have become exercisable in accordance with the provisions
of this Section 3(a). That number of Market Options that is equal to 6.25% of the total
number of Market Options awarded under this Agreement (rounded down to the nearest whole
number of Market Options) and that number of Premium Options that is equal to 6.25% of the
total number of Premium Options awarded under this Agreement (rounded down to the nearest
whole number of Premium Options) shall become exercisable on each of the day corresponding
to the Effective Date that occurs during the third calendar month following the Effective
Date (or, if there is no such day, the last day of such month) and the corresponding day
during each third calendar month thereafter through the forty-eighth month following the
Effective Date, and any Options awarded under this Agreement that do not otherwise become
exercisable as a result of rounding shall become exercisable on the last day on which
Options otherwise become exercisable pursuant to this sentence. Notwithstanding the
foregoing, (i) in the event that any date on which Options would otherwise become
exercisable is not a Business Day, such Options will become exercisable on the Business Day
next following such date, and (ii) all Options will become exercisable on the date of the
Grantee’s termination of employment if (A) the Grantee’s employment with the Company and its
Subsidiaries terminates by reason of Disability or (B) the Grantee dies while employed by
the Company or a Subsidiary.
(b) To the extent the Options become exercisable, such Options 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 Options and that the exercise by
the Grantee of Options 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. Options will be considered exercised (as to the number of Options
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:
(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, the number of Market Options and the number of Premium Options
being exercised, and the number of shares of LINTA Stock (“Option Shares”) to be purchased;
(b) Payment of the applicable Base Price for each Option Share to be purchased in any (or a
combination) of the following forms: (A) cash, (B) check or (C) 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
Base Price (and, if applicable the Required Withholding Amount, as described in Section 5
below); 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 LINTA Stock otherwise payable or deliverable upon exercise of any Options
that number of shares of LINTA Stock (valued at the Fair Market Value of such LINTA Stock on the
date of exercise) that is equal to the amount of all federal, state and local taxes required to be
withheld by the Company upon such exercise, as determined by the Committee (the “Required
Withholding Amount”). If the Grantee elects to make payment of the Base 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 Base 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
(i) deliver or cause to be delivered to the Grantee certificates issued in the Grantee’s name for,
or cause to be transferred to a brokerage account through Depository Trust Company for the benefit
of the Grantee, the number of shares of LINTA Stock purchased by exercise of Options, and (ii)
deliver any cash payment to which the Grantee is entitled in lieu of a fractional share of LINTA
Stock, as provided in Section 2 above. Any delivery of shares of LINTA Stock 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, or at the time the
stock transfer agent initiates transfer of shares to a brokerage account through Depository Trust
Company for the benefit of the Grantee, if applicable, 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 Options. The Options will terminate, prior to the expiration of the
Term, at the time specified below:
(a) Subject to Section 7(b), if the Grantee’s employment with the Company and its
Subsidiaries is terminated other than (i) by the Company or a Subsidiary for Cause or (ii)
by reason of death or Disability, then the Options 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 the Grantee’s employment.
(b) If the Grantee dies while employed by the Company or a Subsidiary, or prior to the
expiration of a period of time following termination of the Grantee’s employment during
which the Options remain exercisable as provided in Section 7(a) or Section 7(c), as
applicable, the Options 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.
(c) Subject to Section 7(b), if the Grantee’s employment with the Company and its
Subsidiaries terminates by reason of Disability, then the Options 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 the Grantee’s employment.
(d) If the Grantee’s employment with the Company and its Subsidiaries is terminated by the
Company or a Subsidiary for Cause, then the Options will terminate immediately upon such
termination of the Grantee’s employment.
In any event in which Options remain exercisable for a period of time following the date of
termination of the Grantee’s employment as provided above, the Options may be exercised during such
period of time only to the extent the same were exercisable as provided in Section 3 above on such
date of termination of the Grantee’s employment. 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
Options will in any event terminate upon the expiration of the Term.
8. Forfeiture for Misconduct and Repayment of Certain Amounts. If (i) a material restatement
of any financial statement of the Company (including any consolidated financial statement of the
Company and its consolidated subsidiaries) is required and (ii) in the reasonable judgment of the
Committee, (A) such restatement is due to material noncompliance with any financial reporting
requirement under applicable securities laws and (B) such noncompliance is a result of misconduct
on the part of the Grantee, the Grantee will repay to the Company Forfeitable Benefits received by
the Grantee during the Misstatement Period in such amount as the Committee may reasonably
determine, taking into account, in addition to any other factors deemed relevant by the Committee,
the extent to which the market value of LINTA Stock during the Misstatement Period was affected by
the error(s) giving rise to the need for such restatement. “Forfeitable Benefits” means (i) any
and all cash and/or shares of LINTA Stock received by the Grantee (A) upon the exercise during the
Misstatement Period of any SARs held by the Grantee or (B) upon the payment during the Misstatement
Period of any Cash Award or Performance Award held by the Grantee, the value of which is determined
in whole or in part with reference to the value of LINTA Stock, and (ii) any proceeds received by
the Grantee from the sale, exchange, transfer or other disposition during the Misstatement Period
of any shares of LINTA Stock received by the Grantee upon the exercise, vesting or payment during
the Misstatement Period of any Award held by the Grantee. By way of clarification, “Forfeitable
Benefits” will not include any shares of LINTA Stock received upon exercise of any Options during
the Misstatement Period that are not sold, exchanged, transferred or otherwise disposed of during
the Misstatement Period. “Misstatement Period” means the 12-month period beginning on the date of
the first public issuance or the filing with the Securities and Exchange Commission, whichever
occurs earlier, of the financial statement requiring restatement.
9. Nontransferability. During the Grantee’s lifetime, the Options are not transferable
(voluntarily or involuntarily) other than pursuant to a Domestic Relations Order and, except as
otherwise required pursuant to a Domestic Relations Order, are exercisable only by the
Grantee or the Grantee’s court appointed legal representative. The Grantee may designate a
beneficiary or beneficiaries to whom the Options 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 Options will pass by will or the laws of descent and distribution.
Following the Grantee’s death, the Options, if otherwise exercisable, may be exercised by the
person to whom such option or right passes according to the foregoing and such person will be
deemed the Grantee for purposes of any applicable provisions of this Agreement.
10. No Stockholder Rights. Prior to the exercise of Options 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 shares of LINTA Stock,
nor will the existence of this Agreement affect in any way the right or power of the Company or any
stockholder of the Company to accomplish any corporate act, including, without limitation, the acts
referred to in Section 11.16 of the Plan.
11. Adjustments. If the outstanding shares of LINTA Stock 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 LINTA Stock, 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 LINTA Stock such that an adjustment is
required to preserve the benefits or potential benefits intended to be made available under this
Agreement, then the Options will be subject to adjustment (including, without limitation, as to the
number of Options and the Base Price per share of such Options) in such manner as the Committee, in
its sole discretion, deems equitable and appropriate in connection with the occurrence of any of
the events described in this Section 11 following the Effective Date.
12. Restrictions Imposed by Law. Without limiting the generality of Section 11.8 of the Plan,
the Grantee will not exercise the Options, and the Company will not be obligated to make any cash
payment or issue or cause to be issued any shares of LINTA Stock, 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 LINTA Stock 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 Options or the resulting payment of cash or issuance of shares of LINTA Stock to
comply with any such law, rule, regulation or agreement.
13. 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 Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
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.
14. 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 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
Options 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 Options to the extent then exercisable.
15. 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 of the Company or any of its Subsidiaries or interfere in any way with
the right of the Company or any employing Subsidiary to terminate the Grantee’s employment at any
time, with or without cause, subject to the provisions of any employment agreement between the
Grantee and the Company or any Subsidiary.
16. Nonalienation of Benefits. Except as provided in Section 9 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.
17. 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.
18. Construction. References in this Agreement to “this Agreement” and the words “herein,”
“hereof,” “hereunder” and similar terms include all Exhibits and Schedules appended hereto. 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.
19. 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.
20. 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.
21. 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.
22. Grantee Acceptance. The Grantee will signify acceptance of the terms and conditions of
this Agreement by acknowledging the acceptance of this Agreement via the procedures described in
the online grant program utilized by the Company.
23. Code Section 409A Compliance. If any provision of this Agreement would result in the
imposition of an excise tax under Section 409A of the Code and related
regulations and Treasury pronouncements (“Section 409A”), that provision will be reformed to
avoid imposition of the excise tax and no action taken to comply with Section 409A shall be deemed
to impair a benefit under this Agreement.
Exhibit A
to
Non-Qualified Stock Option Agreement
dated as of ___________ ___, 2009 between Liberty Media Corporation and Grantee
to
Non-Qualified Stock Option Agreement
dated as of ___________ ___, 2009 between Liberty Media Corporation and Grantee
[Copy of Liberty Media Corporation 2000 Incentive Plan (As Amended and Restated
Effective February 22, 2007)]
Effective February 22, 2007)]
Exhibit B
to
Non-Qualified Stock Option Agreement
dated as of ___________ ___, 2009 between Liberty Media Corporation and Grantee
to
Non-Qualified Stock Option Agreement
dated as of ___________ ___, 2009 between Liberty Media Corporation 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
Options 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.
