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EXHIBIT 10.43
1998 PLAN
TCOMA RESTRICTED STOCK
11/15/98 GRANT
TELE-COMMUNICATIONS, INC.
1998 INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 15th day of November,
1998 (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. 1998 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 50,000 shares of Series A TCI Group
("TCOMA") Common Stock, 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 instruments of
assignment, each endorsed in blank, so as to permit retransfer to the Company of
all
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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, Grantee shall become
vested as to 100% of the shares of Restricted Shares subject to this Agreement
as of two (2) years following the Grant 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:
(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
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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 be forfeited
immediately;
(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 immediately become fully vested;
(c) If Grantee's employment with the Company terminates by reason of
Disability, then the Award, to the extent not theretofore vested, shall
immediately become fully vested;
(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 be
forfeited immediately; 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 immediately become fully vested.
"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
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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 the award of Restricted Shares, and the satisfaction of any other applicable
restrictions, terms and conditions (a) all 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 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 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.
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(b) In the event of any Approved Transaction, Board Change or Control
Purchase, the restrictions in Paragraph 3 shall lapse. 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, 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 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 domestic relations order
and, except as otherwise required pursuant to a 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
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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
11.18 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.
14. RESTRICTIONS IMPOSED BY LAW. Without limiting the generality of
Section 11.9 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:
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(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. O. 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 11.8(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 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 11.8(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
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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 Delaware.
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.
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.
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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.
TELE-COMMUNICATIONS, INC.
By:
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Name:
Title:
ACCEPTED:
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Exhibit B to Restricted Stock Award
Agreement dated as of November 15, 1998
TELE-COMMUNICATIONS, INC. 1998 INCENTIVE PLAN
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 ___________________________________________ , 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.
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Date Grantee
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