FORM OF LIBERTY GLOBAL, INC. 2005 INCENTIVE PLAN STOCK APPRECIATION RIGHTS AGREEMENT
Exhibit 99.2
[Series A]
THIS STOCK APPRECIATION RIGHTS AGREEMENT (“Agreement”) is made as of ___, 200___(the
“Grant Date”), by and between LIBERTY GLOBAL, INC., a Delaware corporation (the “Company”), and the
individual whose name, address and social security/payroll number appear on the signature page
hereto (the “Grantee”).
The Company has adopted the Liberty Global, Inc. 2005 Incentive Plan (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 a stock appreciation right 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:
“Base
Price” means $ per LBTYA share.
“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.
“Code” means the Internal Revenue Code of 1986, as it may be amended from time to time.
“Committee” has the meaning specified in the recitals to this Agreement.
“Company” has the meaning specified in the preamble to this Agreement.
“Direct Registration System” means the book-entry registration system maintained by the
Company’s stock transfer agent, pursuant to which shares of LBTYA are held in non-certificated form
for the benefit of the registered holder thereof.
“Grant Date” has the meaning specified in the preamble to this Agreement.
“Grantee” has the meaning specified in the preamble to this Agreement.
“LBTYA” means the Series A common stock, par value $.01 per share, of the Company.
“Plan” has the meaning specified in the recitals of this Agreement.
“Required Withholding Amount” has the meaning specified in Section 5 of this Agreement.
“SAR” has the meaning specified in Section 2 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 Stock Appreciation Right. Subject to the terms and conditions herein, pursuant to
the Plan, the Company grants to the Grantee a Free-Standing SAR with respect to the number of
shares of LBTYA set forth on the signature page hereto (each a “SAR” and collectively the “SARs”).
Upon exercise of a SAR in accordance with this Agreement, the Company will, subject to Section 5
below, pay to the Grantee consideration equal to the amount, if any, by which the Fair Market Value
of a share of LBTYA as of the date on which such exercise is considered to occur pursuant to
Section 4 exceeds the Base Price of such SAR. The SARs, to the extent they have become exercisable
in accordance with Section 3, will be exercisable during the period commencing on the Grant Date
and expiring at the Close of Business on ___, 20___(the “Term”), subject to earlier
termination as provided in Section 7. The Base Price and number of SARs are subject to adjustment
pursuant to Section 11.
3. Conditions of Exercise. Unless otherwise determined by the Committee in its sole
discretion, the SARs 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 SARs will not be exercisable until ___, 200___and may be
exercised thereafter only to the extent they have become exercisable in accordance with the
following schedule:
| i. | On and after ___200___, ___% of the SARs will be exercisable; | ||
| ii. | On each ___, ___, ___, and ___thereafter, an additional ___% of the SARs will become exercisable; and | ||
| iii. | On and after ___, 200___, 100% of the SARs will be exercisable. |
Notwithstanding the foregoing, (x) the all SARs will become exercisable 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
Grant Date, the Grantee will be entitled to exercise all SARs that had previously become
exercisable, plus the product of (x) one-third (1/3) of the additional number of SARs that
would have become exercisable on the next following date set forth in the above schedule,
times (y) the number of full months of employment completed since the most recent date of
vesting specified in the foregoing schedule.
(b) To the extent the SARs become exercisable, all or any of such SARs may be exercised
(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 SARs and that the exercise by the
Grantee of SARs 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 SARs will be considered exercised (as to the number of SARs
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) A properly executed written exercise notice, in the form attached hereto as Exhibit
B or such other 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 SARs to be exercised;
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(b) 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 cash or shares of LBTYA otherwise payable or deliverable upon exercise of any SARs,
an amount of cash, a number of shares of LBTYA (valued at their Fair Market Value on the date of
exercise) or a combination of the foregoing that is equal to the amount, if any, of all national,
state and local taxes required to be withheld by the Company upon such exercise, as determined by
the Committee (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 or at the direction of the Grantee the amount of consideration
determined under the second sentence of Section 2 above, which consideration shall consist of cash,
shares of LBTYA (valued at their Fair Market Value on the date of exercise) or a combination of the
foregoing, as determined by the Committee. Any delivery of shares of LBTYA will be deemed effected
for all purposes when (i) a certificate representing such shares or statement of holdings
reflecting such shares held through the Direct Registration System has been delivered personally to
the Grantee or, if delivery is by mail, when the stock transfer agent of the Company has deposited
the certificate or statement of holdings in the United States mail, addressed to the Grantee, or
(ii) confirmation of deposit into the designated broker’s account of such shares, in written or
electronic format, is first made available to Grantee. Any cash payment will be deemed effected
when the Company or a Subsidiary makes the payment by any of the following means: (i) by check ,
payable to or at the direction of the Grantee and in the amount equal to the amount of the cash
payment, delivered personally to or at the direction of the Grantee or deposited in the United
States mail, addressed to the Grantee or his or her nominee, or (ii) by delivery of the amount of
such cash payment by electronic transfer to Grantee’s designated account.
7. Early Termination of the SARs. Unless otherwise determined by the Committee in its sole
discretion, the SARs will terminate, prior to the expiration of the Term, at the time specified
below:
(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 SARs 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 SARs remain
exercisable as provided in Section 7(a) or Section 7(c), as applicable, the SARs 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 SARs
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remain exercisable as provided in Section 7(d), the SARs 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 SARs 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 SARs 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, provided
that the Special Treatment Period will in any event expire on the second anniversary of the
date of Termination of 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. Notwithstanding the foregoing, the business combination in which Liberty
Media International, Inc. and UnitedGlobalCom, Inc. and their respective Subsidiaries became
Subsidiaries of the Company on June 15, 2005 shall not be deemed an acquisition of any such
Subsidiary by the Company for purpose of the preceding sentence.
(e) If Termination of Service is by the Company or a Subsidiary for Cause, then the
SARs will terminate immediately upon such Termination of Service.
In any event in which the SARs remain exercisable for a period of time following the date of
Termination of Service as provided above, the SARs 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 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
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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 SARs
will in any event terminate upon the expiration of the Term.
8. Automatic Exercise of SARs. Immediately prior to the termination of SARs, as provided in
Section 7(a), 7(b), 7(c) or 7(d) above or upon expiration of the Term, all remaining SARs then
exercisable will be deemed to have been exercised by the Grantee. Notwithstanding any other
provision of this Agreement, no exercise of SARs will be deemed to occur upon Termination of
Service for Cause.
9. Nontransferability. During the Grantee’s lifetime, the SARs 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 SARs 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 C 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 SARs will pass by will or the laws of descent and distribution. Following
the Grantee’s death, the SARs, 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.
10. No Stockholder Rights. The Grantee will not, by reason of the Award granted under this
Agreement, 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 LBTYA, 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.
11. Adjustments. The SARs will be subject to adjustment (including, without limitation, as to
the number of SARs and the Base 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 Section 4.2 of the Plan following the Grant Date.
12. Restrictions Imposed by Law. Without limiting the generality of Section 11.8 of the Plan,
the Grantee will not exercise any SARs, 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
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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 SARs or the resulting payment of cash or issuance of shares of
LBTYA 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, overnight
courier, freight prepaid or sent by facsimile and addressed as follows:
Liberty Global, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: 000-000-0000
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: 000-000-0000
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 Grant 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. 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 reform the Award made hereunder as contemplated by
Section 11.18 of the Plan, or (iv) 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
SARs 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 SARs to the extent then exercisable.
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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 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.
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. 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. 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
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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 signing in the space provided at the end hereof and returning a signed copy to
the Company. If the Grantee does not execute this Agreement by ___, 200___, the grant
of the SARs shall be null and void.
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Signature Page to Stock Appreciation Rights Agreement
dated as of ________, 200__ between Liberty Global, Inc., and Grantee
dated as of ________, 200__ between Liberty Global, Inc., and Grantee
| LIBERTY GLOBAL, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ACCEPTED: | ||||
| Grantee Name: | ||||
| Address: | ||||
| City/State/Country: | ||||
| Social Security/Payroll Number: | ||||
Grant No.
Number of
shares of LBTYA as to which Free-Standing SAR is granted
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Exhibit A
to
Stock Appreciation Rights Agreement
dated as of _______, 200__ between Liberty Global, Inc. and Grantee
to
Stock Appreciation Rights Agreement
dated as of _______, 200__ between Liberty Global, Inc. and Grantee
Exhibit B
To
Stock Appreciation Rights Agreement
Dated as of _________, 200__ between Liberty Global, Inc. and Grantee
To
Stock Appreciation Rights Agreement
Dated as of _________, 200__ between Liberty Global, Inc. and Grantee
NOTICE OF EXERCISE OF STOCK APPRECIATION RIGHT
UNDER LIBERTY GLOBAL, INC. 2005 INCENTIVE PLAN
UNDER LIBERTY GLOBAL, INC. 2005 INCENTIVE PLAN
TO: Liberty Global, Inc., Legal Department
FROM:
(Grantee)
DATE:
The undersigned hereby elects to exercise the following Free-Standing SAR as to the number of
SARs indicated below pursuant to and subject to the provisions of the Liberty Global, Inc. (“LGI”)
2005 Incentive Plan (the “Plan”) and the applicable stock appreciation rights agreement.
| 1. | Date of grant of Free-Standing SAR and grant number: | |
| 2. | Base Price of SARs: | |
| 3. | Number of SARs being exercised: | |
| 4. | Country of Employment: | |
| 5. | Employer Company: | |
| 6. | Check applicable delivery instructions below for payment of the consideration payable: | |
| [ ] I instruct LGI to send any LBTYA shares to the following account or address: |
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| [ ] I instruct LGI to deliver any cash payment to the following address: |
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[ ] If LGI elects to deliver any cash payment by electronic transfer, I instruct LGI to deliver such payment to the following account: |
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| 7. | Check the box below if you currently intend to sell the LBTYA shares that may be delivered to you by LGI. | |
| [ ] |
I understand that the above-described Free-Standing SAR will be considered exercised as to the
number of SARs indicated above upon receipt of this Notice of Exercise by LGI. I also understand
that LGI or a Subsidiary will withhold any amounts required by law for the payment of applicable
taxes with respect to my exercise of the SARs or any amounts owing to LGI or a Subsidiary.
| [Signature of Grantee] | ||
| Address | ||
| City/State/Zip | ||
| Country | ||
| E-mail address |
Exhibit C
to
Stock Appreciation Rights Agreement
dated as of , 200 between Liberty Global, Inc. and Grantee
to
Stock Appreciation Rights Agreement
dated as of , 200 between Liberty Global, Inc. and Grantee
Designation of Beneficiary
I, (the “Grantee”), hereby declare
that upon my death (the “Beneficiary”) of
Name
Name
,
Street Address City State Zip Code
who is my , will be entitled to the
Relationship to Grantee
Relationship to Grantee
SARs 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.
Date
|
Grantee |
