1
EXHIBIT 10.31
1994 PLAN
TCOMA
TELE-COMMUNICATIONS, INC.
1994 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 13th day of
December, 1995 (the "Grant Date"), by and between TELE-COMMUNICATIONS, INC., a
Delaware corporation (the "Company"), and the person signing adjacent to the
caption "Grantee" on the signature page hereof (the "Grantee").
The Company has adopted the Tele-Communications, Inc. 1994
Stock Incentive Plan (the "Plan"), a copy of which is appended to this
Agreement as Exhibit A and by this reference made a part hereof, for the
benefit of eligible employees of the Company and its Subsidiaries. Capitalized
terms used and not otherwise defined herein shall have the meaning ascribed
thereto in the Plan.
Pursuant to the Plan, the Compensation Committee of the Board
(the "Committee"), which has been assigned responsibility for administering the
Plan, has determined that it would be in the interest of the Company and its
stockholders to award shares of common stock to Grantee, subject to the
conditions and restrictions set forth herein and in the Plan, in order to
provide Grantee with additional remuneration for services rendered, to
encourage Grantee to remain in the employ of the Company or its Subsidiaries
and to increase Grantee's personal interest in the continued success and
progress of the Company.
The Company and Grantee therefore agree as follows:
1. AWARD. Pursuant to the terms of the Plan and in consideration
of the covenants and promises of Grantee herein contained, the Company hereby
awards to Grantee as of the Grant Date, a total of ______ shares of Series A
TCI Group ("TCOMA") Common Stock, at the price per share set forth on Schedule
1 hereto, subject to the conditions and restrictions set forth below and in the
Plan (the "Restricted Shares").
2. ISSUANCE OF RESTRICTED SHARES AT BEGINNING OF THE RESTRICTION
PERIOD. Upon issuance of the Restricted Shares the stock certificate or
certificates representing such Restricted Shares shall be registered in the
name of Grantee. 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 this Agreement. Such certificates shall remain in the custody of the
Company and Grantee shall deposit with the Company stock powers or other
1
2
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 this Agreement.
3. RESTRICTIONS. Restricted Shares shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. Grantee 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 Common Stock with respect to
such Restricted Shares; except, that (a) Grantee 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 of the Plan; (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) Grantee 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.
4. VESTING AND FORFEITURE OF RESTRICTED STOCK: Subject to earlier
vesting in accordance with the provisions of Paragraph 7(b) below, and subject
to shareholder approval of the Plan at the ____________ annual meeting of the
shareholders of the Company, Grantee shall become vested as to 50% of the
shares of Restricted Shares subject to this Agreement as of four years
following the Grant Date, and Grantee shall become vested as to the remaining
50% of the shares of Restricted Shares subject to this Agreement as of five
years following the Grant Date, each such date being a Vesting Date; provided,
however, that Grantee shall not vest, pursuant to this Paragraph 4, in shares
of Restricted Shares as to which Grantee would otherwise vest as of a given
date if Grantee has not been continuously employed by the Company or its
Subsidiaries from the date of this Agreement through such date (the vesting or
forfeiture of such shares to be governed instead by the provisions of Paragraph
5). Notwithstanding the foregoing, in the event that any date on which vesting
would otherwise occur is a Saturday, Sunday or a holiday, such vesting shall
instead occur on the business day next following such date.
5. EARLY TERMINATION OF AWARD. Unless otherwise determined by the
Committee in its sole discretion, the Award shall terminate, to the extent not
theretofore vested, prior to the expiration of the Restricted Period, at the
time specified below:
2
3
(a) If Grantee's employment with the Company and its
Subsidiaries terminates (i) other than (x) by the Company for "cause"
(as defined in Section 10.2(b) of the Plan), (y) by the Grantee with
"good reason" (as defined herein) or (z) by the Company without cause,
and (ii) other than (x) by reason of death or Disability, (y) with the
written consent of the Company or the applicable Subsidiary or (z)
without such consent if such termination is pursuant to provisions of
a written employment agreement, if any, between the Grantee and the
Company which expressly permit the Grantee to terminate such
employment upon the occurrence of specified events (other than the
giving of notice and passage of time), then the Award, to the extent
not theretofore vested, shall terminate at the Close of Business on
the first business day following the expiration of the 90-day period
which began on the date of termination of Grantee's employment;
(b) If Grantee dies while employed by the Company or a
Subsidiary, or prior to the expiration of a period of time following
termination of Grantee's employment during which any portion of the
Award remains unvested as provided in paragraph (a), then the Award,
to the extent not theretofore vested, shall terminate at the Close of
Business on the first business day following the expiration of the
one-year period which began on the date of death;
(c) If Grantee's employment with the Company terminates
by reason of Disability, then the Award, to the extent not theretofore
vested, shall terminate at the Close of Business on the first business
day following the expiration of the one-year period which began on the
date of termination of Grantee's employment;
(d) If Grantee's employment with the Company and its
Subsidiaries is terminated by the Company for "cause" (as defined in
Section 10.2(b) of the Plan), then the Award, to the extent not
theretofore vested, shall terminate immediately upon such termination
of Grantee's employment; or
(e) If Grantee's employment (i) is terminated by Grantee
(x) with "good reason" (as defined herein), (y) with the written
consent of the Company or the applicable Subsidiary or (z) pursuant to
provisions of a written employment agreement, if any, between the
Grantee and the Company which expressly permit the Grantee to
terminate such employment upon the occurrence of specified events
(other than the giving of notice and passage of time), or (ii) by the
Company without "cause" (as defined in Section 10.2(b) of the Plan),
then the Award, to the extent not theretofore vested, shall terminate
early only as provided for in paragraph (b) above or 7(b) below.
In any event in which the Award remains outstanding for a
period of time following the Grantee's voluntary termination of his status as a
member of the Board, the Award may vest during such period of time only to the
extent the same would have vested as provided in paragraph 4 above on such date
of termination of Grantee's status. Notwithstanding any period of time
referenced in this paragraph 5 or any other provision of this paragraph that
may be construed to the
3
4
contrary, restrictions upon the Award shall in any event terminate upon the
expiration of the Restriction Period.
"Good reason" for purposes of the Agreement shall be deemed to
have occurred upon the happening of any of the following:
(i) any reduction in Grantee's annual rate of salary;
(ii) either (x) a failure of the Company to continue in
effect any employee benefit plan in which Grantee was participating or
(y) the taking of any action by the Company that would adversely
affect Grantee's participation in, or materially reduce Grantee's
benefits under, any such employee benefit plan, unless such failure or
such taking of any action, adversely affects the senior members of the
corporate management of the Company generally;
(iii) the assignment to Grantee of duties and
responsibilities that are materially more oppressive or onerous than
those attendant to Grantee's position immediately after the date
hereof,
(iv) the relocation of the office location as assigned to
Grantee by the Company to a location more than 20 miles from Grantee's
current location without Grantee's consent; or
(v) the failure of the Company to obtain, prior to the
time of any reorganization, merger, consolidation, disposition of all
or substantially all of the assets of the Company or similar
transaction effective after the date hereof, in which the Company is
not the surviving person, the unconditional assumption in writing or
by operation of law of the Company's obligations to Grantee under this
Agreement by each direct successor to the Company in any such
transaction.
6. COMPLETION OF THE 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 Grantee with
respect to such Restricted Shares shall become payable, all in accordance with
the terms of this Agreement. Any such Restricted Shares, Retained Distributions
and any unpaid Dividend Equivalents that shall not become vested shall be
forfeited to the Company and Grantee 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
4
5
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.
7. ADJUSTMENTS.
(a) The Restricted Shares shall be subject to adjustment
(including, without limitation, as to the number of Restricted Shares)
in the sole discretion of the Committee and in such manner as the
Committee may deem equitable and appropriate in connection with the
occurrence of any of the events described in Section 4.2 of the Plan
following the Grant Date.
(b) In the event of any Approved Transaction, Board
Change or Control Purchase, the restrictions in Paragraph 3 shall
lapse; provided, however, that to the extent not theretofore vested
the Award shall terminate upon the first to occur of the consummation
of the Approved Transaction, the expiration of the Award Term or the
earlier termination of the Award pursuant to paragraph 7 hereof.
Notwithstanding the foregoing, the Committee may, in its discretion,
determine that the restrictions in Paragraph 3 will not lapse on an
accelerated basis in connection with an Approved Transaction and/or
will not terminate if not exercised prior to consummation of the
Approved Transaction, if the Board or the surviving or acquiring
corporation, as the case may be, shall have taken or made effective
provision for the taking of such action as in the opinion of the
Committee is equitable and appropriate to substitute a new Award for
the Award evidenced by this Agreement or to assume this Agreement and
the Award evidenced hereby and in order to make such new or assumed
Award, as nearly as may be practicable, equivalent to the Award
evidenced by this Agreement as then in effect (but before giving
effect to any acceleration of the exercisability hereof unless
otherwise determined by the Committee), taking into account, to the
extent applicable, the kind and amount of securities, cash or other
assets into or for which the TCOMA Common Stock may be changed,
converted or exchanged in connection with the Approved Transaction.
8. MANDATORY WITHHOLDING FOR TAXES. Upon the expiration of the
Restriction Period, Grantee (or Beneficiary, as defined in Paragraph 10 below)
must remit to the Company the amount of all federal, state and other
governmental withholding tax requirements imposed upon the Company with respect
to the vesting of shares of Restricted Stock, unless provisions to so pay such
withholding requirements have been made to the satisfaction of the Committee.
Upon the payment of any cash dividends with respect to shares of Restricted
Stock during the Restriction Period, the amount of such dividends shall be
reduced to the extent necessary to satisfy any withholding tax requirements
applicable thereto prior to payment to Grantee.
9. DELIVERY BY THE COMPANY, As soon as practicable after vesting
in Restricted Shares pursuant to Paragraphs 4 or 5, and subject to the
withholding referred to in paragraph 8, the
5
6
Company shall deliver to Grantee certificates issued in Grantee's name for the
number of Restricted Shares. If delivery is by mail, delivery of shares of
TCOMA 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 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 Grantee.
10. NONTRANSFERABILITY OF RESTRICTED SHARES BEFORE VESTING. Before
vesting and during Grantee's lifetime, the Restricted Shares are not
transferable (voluntarily or involuntarily) other than pursuant to a qualified
domestic relations order and, except as otherwise required pursuant to a
qualified domestic relations order, are exercisable only by Grantee or
Grantee's court appointed legal representative. The Grantee may designate a
beneficiary or beneficiaries to whom the Restricted Shares shall pass upon
Grantee's death and may change such designation from time to time by filing a
written designation of beneficiary or beneficiaries with the Committee on the
form annexed hereto as Exhibit B or such other form as may be prescribed by the
Committee, provided that no such designation shall be effective unless so filed
prior to the death of Grantee. If no such designation is made or if the
designated beneficiary does not survive the Grantee's death, the Restricted
Shares shall pass by will or the laws of descent and distribution. Following
Grantee's death, the Restricted Shares shall pass accordingly to the designated
beneficiary and such person shall be deemed the Grantee for purposes of any
applicable provisions of this Agreement.
11. COMPANY'S RIGHTS. The existence of this Agreement shall not
affect in any way the right or power of the Company or its stockholders to
accomplish any corporate act, including, without limitation, the acts referred
to in Section 10.18 of the Plan.
12. LIMITATION OF RIGHTS: Nothing in this Agreement or the Plan
shall be construed to:
(a) give Grantee any right to be awarded any
further restricted stock other than in the sole discretion of
the Committee;
(b) give Grantee or any other person any interest
in any fund or in any specified asset or assets of the Company
or any subsidiary of the Company; or
(c) confer upon Grantee the right to continue in
the employment or service of the Company or any subsidiary of
the Company, or affect the right of the Company or any
subsidiary of the Company to terminate the employment or
service of Grantee at any time or for any reason.
13. PREREQUISITES TO BENEFITS: Neither Grantee nor any person
claiming through Grantee shall have any right or interest in the Restricted
Shares awarded hereunder, unless and until all the terms, conditions and
provisions of this Agreement and the Plan which affect the Grantee or such
other person shall have been complied with as specified herein.
6
7
14. RESTRICTIONS IMPOSED BY LAW. Without limiting the generality
of Section 10.9 of the Plan, Grantee agrees that Grantee will not require the
Company to deliver any Restricted Shares and that the Company will not be
obligated to deliver any Restricted Shares 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 TCOMA Common Stock is listed or quoted.
The Company shall in no event be obligated to take any affirmative action in
order to cause the delivery of any Restricted Shares or other payment to comply
with any such law, rule, regulation or agreement.
15. NOTICE. Unless the Company notifies 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:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
or
(b) sent by first class mail, postage prepaid and
addressed as follows:
Tele-Communications, Inc.
c/o General Counsel, Tele-Communications, Inc.
P.0. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
Any notice or other communication to Grantee with respect to this Agreement
shall be in writing and shall be delivered personally, or shall be sent by
first class mail, postage prepaid, to Grantee's address as listed in the
records of the Company on the Grant Date, unless the Company has received
written notification from Grantee of a change of address.
16. AMENDMENT. Notwithstanding any other provisions hereof, this
Agreement may be supplemented or amended from time to time as approved by the
Committee as contemplated by Section 10.8(b) of the Plan. Without limiting the
generality of the foregoing, without the consent of Grantee,
(a) this Agreement may be amended or supplemented
(i) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, or (ii) to add to the covenants
and agreements of the Company for the benefit of Grantee or
surrender any right or power reserved to or conferred upon the
Company in this Agreement, subject, however, to any required
approval of the Company's
7
8
stockholders and, provided, in each case, that such changes or
corrections shall not adversely affect the rights of Grantee
with respect to the Award evidenced hereby, or (iii) to make
such other changes as the Company, upon advice of counsel,
determines are necessary or advisable because of the adoption
or promulgation of, or change in or of the interpretation of,
any law or governmental rule or regulation, including any
applicable federal or state securities laws; and
(b) subject to Section 10.8(b) of the Plan and
any required approval of the Company's stockholders, the Award
evidenced by this Agreement may be canceled by the Committee
and a new Award made in substitution therefor, provided that
the Award so substituted shall satisfy all of the requirements
of the Plan as of the date such new Award is made and no such
action shall adversely affect the Restricted Shares to the
extent then vested.
17. GRANTEE EMPLOYMENT. Nothing contained in this Agreement, and
no action of the Company or the Committee with respect hereto, shall confer or
be construed to confer on 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 Grantee's employment at
any time, with or without cause; subject, however, to the provisions of any
employment agreement between Grantee and the Company or any Subsidiary.
18. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Colorado.
19. CONSTRUCTION. References in this Agreement to "this Agreement"
and the words "herein," "hereof," "hereunder" and similar terms include all
Exhibits and Schedules appended hereto, including the Plan. This Agreement is
entered into, and the Award evidenced hereby is granted, pursuant to the Plan
and shall be governed by and construed in accordance with the Plan and the
administrative interpretations adopted by the Committee thereunder. All
decisions of the Committee upon questions regarding the Plan or this Agreement
shall be conclusive. Unless otherwise expressly stated herein, in the event of
any inconsistency between the terms of the Plan and this Agreement, the terms
of the Plan shall control. The headings of the paragraphs of this Agreement
have been included for convenience of reference only, are not to be considered
a part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
20. DUPLICATE ORIGINALS. The Company and 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.
21. RULES BY COMMITTEE. The rights of Grantee and obligations of
the Company hereunder shall be subject to such reasonable rules and
regulations as the Committee may adopt from time to time hereafter.
8
9
22. 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 respect
to the Restricted Shares and replaces and makes null and void any prior
agreements between Grantee and the Company regarding the Restricted Shares.
23. 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: TELE-COMMUNICATIONS, INC.
By:
------------------------------ -------------------------------
Assistant Secretary Name:
Title:
ACCEPTED:
----------------------------------
9
10
Schedule 1 to Restricted Stock Award
Agreement dated as of December 13, 1995
TELE-COMMUNICATIONS, INC. 1994 STOCK INCENTIVE PLAN
Grantee:
Grant Date: December 13, 1995
Restricted Shares: _____ shares of Series A TCI Group Common Stock ("TCOMA"),
$_____ par value per share.
10
11
Exhibit B to Restricted Stock Award
Agreement dated as of December 13, 1995
TELE-COMMUNICATIONS, INC. 1994 STOCK INCENTIVE PLAN
DESIGNATION OF BENEFICIARY
I, (the "Grantee"), hereby declare
---------------------------------
that upon my death (the "Beneficiary") of
-----------------------------------
Name
------------------------------------------------------------------------------,
Xxxxxx Xxxxxxx Xxxx Xxxxx Zip Code
who is my shall be entitled to the
-------------------------------------------,
Relationship to Grantee
Restricted Shares and all other rights accorded the Grantee by the above-
referenced grant agreement (the "Agreement").
It is understood that this Designation of Beneficiary is made pursuant
to the Agreement and is subject to the conditions stated herein, including the
Beneficiary's survival of the Grantee's death. If any such condition is not
satisfied, such rights shall devolve according to the Grantee's will or the
laws of descent and distribution.
It is further understood that all prior designations of beneficiary
under the Agreement are hereby revoked and that this Designation of Beneficiary
may only be revoked in writing, signed by the Grantee, and filed with the
Company prior to the Grantee's death.
------------------------------ -----------------------------------
Date Grantee
11
