Exhibit 4.5
1997 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
OF TCI SATELLITE ENTERTAINMENT, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made as of February 3, 1997, by and
between TCI SATELLITE ENTERTAINMENT, INC., a Delaware corporation (the
"Company") and the person signing adjacent to the caption "Grantee" on the
signature page hereof ("Grantee").
The Company has adopted the 1997 Nonemployee Director Stock Option Plan
of TCI Satellite Entertainment, Inc. (the "Plan"), a copy of which is appended
to this Agreement as Exhibit A and by this reference made a part hereof, for the
benefit of independent directors on the Board of Directors of the Company.
Options granted pursuant to the Plan and this Agreement are subject to approval
of the Plan by the stockholders of the Company. Capitalized terms used and not
otherwise defined herein shall have the meaning ascribed thereto in the Plan.
Pursuant to the Plan, the option hereby granted is provided to Grantee
as additional remuneration for services rendered, to encourage Grantee to remain
a director of the Company and to increase Grantee's personal interest in the
continued success and progress of the Company.
NOW, THEREFORE, the Company and Grantee agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions herein, the
Company grants to the Grantee during the period commencing on February 3, 1997
(the "Option Date") and expiring at 5 p.m., Denver, Colorado time ("Close of
Business") February 2, 2007 (the "Option Term"), subject to earlier termination
as provided in paragraph 5 below, an option to purchase from the Company, at the
price per share set forth on Schedule 1 hereto (the "Option Price"), the number
of shares of Series A Common Stock of the Company set forth on said Schedule 1
(the "Option Shares"). The Option Price and Option Shares are subject to
adjustment pursuant to paragraph 8 below. This option is as a "Nonqualified
Stock Option" and is hereinafter referred to as the "Option."
2. CONDITIONS OF EXERCISE. The Option is exercisable only in accordance
with the conditions stated in this paragraph and paragraph 8(b).
(a) Except as otherwise provided in paragraph 8(b) or in the
last sentence of this subparagraph (a), the Option shall not be
exercisable until February 3, 1998, and on such date and thereafter the
Option may only be exercised to the extent the Option Shares have
become available for purchase in accordance with the following
schedule:
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DATE PERCENTAGE OF OPTION SHARES
---- AVAILABLE FOR PURCHASE
---------------------------
February 3, 1998 20%
February 3, 1999 40%
February 3, 2000 60%
February 3, 2001 80%
February 3, 2002 100%
Notwithstanding the foregoing, all Option Shares shall become available
for purchase if Grantee's status as a Director shall cease for any
reason other than voluntary termination of Director status by Grantee.
(b) To the extent the Option becomes exercisable, such 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 Option
Term or earlier termination of the Option pursuant to paragraph 5.
3. MANNER OF EXERCISE. The Option shall be considered exercised (as to
the number of Option Shares specified in the notice referred to in subparagraph
(a) below) on the latest of (i) the date of exercise designated in the written
notice referred to in subparagraph (a) below, (ii) if the date so designated is
not a business day, the first business day following such date or (iii) the
earliest business day by which the Company has received all of the following:
(a) Written notice to the Assistant Secretary of the Company
designating, among other things, the date of exercise and the number of
Option Shares to be purchased; and
(b) Payment of the Option Price for each Option Share to be
purchased in cash or by means of tendering theretofore owned Series A
Common Stock or a combination thereof; PROVIDED, HOWEVER, that any
shares of Series A Common Stock delivered in payment of the Option
Price shall be shares that the Grantee has owned for a period of at
least six months prior to the date of exercise.
4. DELIVERY BY THE COMPANY. As soon as practicable after receipt of all
items referred to in paragraph 3, the Company shall deliver to the Grantee
certificates issued in Grantee's name for the number of Option Shares purchased
by exercise of the Option. If delivery is by mail, delivery of shares of Series
A Common Stock shall be deemed effected for all purposes when a stock transfer
agent of the Company shall have deposited the certificates in the United States
mail, addressed to the Grantee, and any cash payment shall be deemed effected
when a Company check, payable to Grantee and in an amount equal to the amount of
the cash payment, shall have been deposited in the United States mail, addressed
to the Grantee.
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5. EARLY TERMINATION OF OPTION. The Option shall terminate, prior to
the expiration of the Option Term, at the time specified below:
(a) If Grantee ceases to serve as a Director during the Option
Term by reason of voluntary termination of Director status by Grantee,
then the Option shall terminate at the Close of Business on the first
business day following the expiration of the three-month period which
began on the date of termination of Grantee's status as a Director;
(b) If Grantee ceases to serve as a Director during the Option
Term for any reason other than voluntary termination of Director status
by Grantee, the Option shall terminate at the Close of Business on the
first business day following the expiration of the one-year period
which began on the date of termination of Grantee's status as a
Director.
In any event in which the Option remains exercisable for a
period of time following the voluntary termination of Nonemployee Director
status by Grantee, the Option may be exercised during such period of time only
to the extent the Option was exercisable as provided in paragraph 2 above on
such date of termination of Grantee's status as a Director. Notwithstanding any
period of time referenced in this paragraph 5 or any other provision of this
paragraph that may be construed to the contrary, the Option shall in any event
terminate upon the expiration of the Option Term.
6. NONTRANSFERABILITY OF OPTION. During Grantee's lifetime, the Option
is not transferable (voluntarily or involuntarily) other than pursuant to a
qualified domestic relations order and, except as otherwise required pursuant to
a qualified domestic relations order, is exercisable only by the Grantee or
Grantee's court appointed legal representative. The Grantee may designate a
beneficiary or beneficiaries to whom the Option shall pass upon Grantee's death
and may change such designation from time to time by filing a written
designation of beneficiary or beneficiaries with the Assistant Secretary of the
Company on the form annexed hereto as Exhibit B or such other form as may be
prescribed for purposes of the Plan, provided that no such designation shall be
effective unless so filed prior to the death of Grantee. If no such designation
is made or if the designated beneficiary does not survive the Grantee's death,
the Option shall pass by will or the laws of descent and distribution. Following
Grantee's death, the Option, if otherwise exercisable, may be exercised by the
person to whom such Option passes accordingly to the foregoing and such person
shall be deemed the Grantee for purposes of any applicable provisions of this
Agreement.
7. NO STOCKHOLDER RIGHTS. The Grantee shall not be deemed for any
purpose to be, or to have any of the rights of, a stockholder of the Company
with respect to any shares of Series A Common Stock as to which this Agreement
relates until such shares shall have been issued to Grantee by the Company.
Furthermore, the existence of this Agreement shall not affect in any way the
right or power of the Company or its stockholders to accomplish any corporate
act.
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8. ADJUSTMENTS.
(a) The Option shall be subject to adjustment (including,
without limitation, as to the number of Option Shares and the Option
Price per share) in the sole discretion of the Board of Directors and
in such manner as the Board of Directors may deem equitable and
appropriate in connection with the occurrence of any of the events
described in Section 10(b) of the Plan following the Option Date.
(b) In the event of any Change in Control, the Option shall
become exercisable in full without regard to paragraph 2(a).
9. RESTRICTIONS IMPOSED BY LAW. Without limiting the generality of
Section 14 of the Plan, the Grantee agrees that Grantee will not exercise the
Option and that the Company will not be obligated to deliver any shares of
Series A Common Stock or make any cash payment, if counsel to the Company
determines that such exercise, delivery or payment would violate any applicable
law or any rule or regulation of any governmental authority or any rule or
regulation of, or agreement of the Company with, any securities exchange or
association upon which the Series A Common Stock is listed or quoted. The
Company shall in no event be obligated to take any affirmative action in order
to cause the exercise of the Option or the resulting delivery of shares of
Series A Common Stock or other payment to comply with any such law, rule,
regulation or agreement.
10. NOTICE. Unless the Company notifies the Grantee in writing of a
different procedure, any notice or other communication to the Company with
respect to this Agreement shall be in writing and shall be:
(a) delivered personally to the following address:
TCI Satellite Entertainment, Inc.
c/o Corporate Counsel
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
or
(b) sent by first class mail, postage prepaid and addressed as
follows:
TCI Satellite Entertainment, Inc.
c/o Corporate Counsel
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Any notice or other communication to the Grantee with respect to this Agreement
shall be in writing and shall be delivered personally, or shall be sent by first
class mail, postage prepaid, to
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Grantee's address as listed in the records of the Company on the Option Date,
unless the Company has received written notification from the Grantee of a
change of address.
11. AMENDMENT. Notwithstanding any other provisions hereof, this
Agreement may be supplemented or amended from time to time as approved by the
Board of Directors, consistent with the provisions of Section 13 of the Plan
regarding amendment of the Plan. Without limiting the generality of the
foregoing, without the consent of the Grantee, this Agreement may be amended or
supplemented (i) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or (ii) to add to the covenants and agreements of the Company for the benefit of
Grantee or surrender any right or power reserved to or conferred upon the
Company in this Agreement, SUBJECT, HOWEVER, to any required approval of the
Company's stockholders and, PROVIDED, in each case, that such changes or
corrections shall not adversely affect the rights of Grantee with respect to the
Option 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.
12. GRANTEE STATUS AS A DIRECTOR. Nothing contained in this Agreement,
and no action of the Company with respect hereto, shall confer or be construed
to confer on the Grantee any right to continue as a member of the Board or
interfere in any way with the right of the Company to terminate the Grantee's
status as a member of the Board at any time, with or without cause; SUBJECT,
HOWEVER, to the provisions of applicable law.
13. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware.
14. CONSTRUCTION. References in this Agreement to "this Agreement" and
the words "herein," "hereof," "hereunder" and similar terms include all Exhibits
and Schedules appended hereto, including the Plan. This Agreement is entered
into, and the Option evidenced hereby is granted, pursuant to the Plan and shall
be governed by and construed in accordance with the Plan. Unless otherwise
expressly stated herein, in the event of any inconsistency between the terms of
the Plan and this Agreement, the terms of the Plan shall control. The headings
of the paragraphs of this Agreement have been included for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
15. DUPLICATE ORIGINALS. The Company and the Grantee may sign any
number of copies of this Agreement. Each signed copy shall be an original, but
all of them together represent the same agreement.
16. ENTIRE AGREEMENT. This Agreement is in satisfaction of and in lieu
of all prior discussions and agreements, oral or written, between the Company
and Grantee. 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
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respect to the Options and replaces and makes null and void any prior agreements
between Grantee and the Company regarding the Options.
17. GRANTEE ACCEPTANCE. Grantee shall 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.
ATTEST: TCI SATELLITE ENTERTAINMENT, INC.
By:
-------------------------------- --------------------------------
Name:
Assistant Secretary Title:
ACCEPTED:
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