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EXHIBIT 10.42
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (the "Agreement") is made as of July
1, 1996 among Tele-Communications, Inc., a Delaware corporation (the
"Company"), Xxxxxxx Xxxxxxxx ("Executive") and WestMarc Communications, Inc., a
Nevada corporation ("WestMarc").
The parties agree as follows:
1. Grant of Preferred Stock
(a) As a reward for past, and an incentive for future, employment
performance by Executive and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company is (i)
effective as of July 1, 1996, transferring to Executive, upon and subject to
the terms and conditions set forth in this Agreement, all of the Company's
right title and interest in and to 62 (sixty-two) shares (the "Initial Shares")
of the 12% Series C Cumulative Compounding Preferred Stock, par value $.01 per
share, of WestMarc ("Preferred Stock"), owned by the Company and (ii)
simultaneously with the execution and delivery of this Agreement, paying to
Executive of $199,970 in cash, representing the sum of the amount of the
dividends on the Initial Shares that Executive would have received if he had
been the record owner of the Initial Shares on and at all times since January
1, 1996. The parties acknowledge that, because the Company was the record owner
of the Initial Shares on the record date for the payment of dividends thereon
for the quarterly dividend period ended July 1, 1996, dividends declared and
paid on such Initial Shares for such quarterly dividend period shall be the
property of the Company. As used in this Agreement, (i) the term "Restricted
Shares" will mean all Initial Shares and any and all other shares of stock and
other securities which Executive later acquires or has the right to acquire by
reason of ownership of or otherwise with respect to any Initial Shares or other
Restricted Shares, irrespective of the time and manner of such acquisition,
including, without limitation, any shares or other securities (whether issued
by WestMarc or otherwise) acquired by reason of any split-up, recapitalization,
dividend, distribution, combination, conversion or exchange of shares of
capital stock or other securities of WestMarc (or any other issuer), or
acquired by reason of any merger or consolidation of WestMarc, any sale or
other disposition of all or substantially all of the assets of WestMarc (or any
other issuer) or any dissolution of WestMarc (or any other issuer); and (ii)
the term "Restricted Share Distributions" means any cash or other property,
except stock or other securities, which Executive acquires or receives or has
the right to acquire or receive by reason of ownership of or otherwise with
respect to any Restricted Shares, including, without limitation, any cash or
other such property acquired or received by reason of any event specified in
clause (i) of this sentence.
(b) If a Forfeiture Event (as defined below) occurs at any time prior to
the Vesting Date (as defined below), all Restricted Shares and, subject to the
last sentence of Section 1(c), Restricted Share Distributions held by or for
the account of Executive or which Executive has the right to acquire or
receive, and all rights and benefits of Executive with respect to such
Restricted Shares and Restricted Share Distributions, automatically will be
forfeited to and vest in the Company. As used in this Agreement, (i) the term
"Forfeiture Event" means either (a) the
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termination of Executive's employment with the Company by the Company for cause
or (b) the termination of Executive's employment with the Company by Executive;
(ii) the term "Vesting Date" means the first to occur of (A) December 13, 2005,
(B) the death of Executive (C) the Executive's Disability and (D) the
termination by the Company of Executive's employment with the Company otherwise
than for cause; and (iii) the term "Disability" means the inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
12 months, as determined by the Board of Directors of the Company in good
faith. For purposes of this Agreement, "cause" for termination of Executive's
employment shall be deemed to have occurred only on the happening of any of the
following:
(i) the plea of guilty to, or conviction for, the commission of a felony
offense by Executive;
(ii) a material breach by Executive of a material fiduciary duty owed to
the Company;
(iii) a material breach by Executive of any of the terms or conditions of
any employment, confidentiality, non-competition or other similar agreement
relating to the employment of Executive by the Company or any of its affiliates
which may at any time and from time to time be in effect; or
(iv) the willful and gross neglect by Executive of the material duties
specifically and expressly required of him in his capacity as an officer or
employee of the Company or any of its affiliates;
provided, however, that (A) any claim that "cause", within the meaning of
clause (ii), (iii) or (iv) above, exists for the termination of Executive's
employment may be asserted on behalf of the Company only by a duly adopted
resolution of the Board of Directors of the Company and only after 30 days
prior written notice to Executive during which period he may cure the breach or
neglect that is the basis of any such claim, if curable; (B) no illness or
disability which incapacitates Executive from performing his duties may,
directly or indirectly, in whole or in part, be the basis for a claim that
"cause", within the meaning of clause (iv) above, exists for the termination of
Executive's employment; (C) during the period of twelve (12) consecutive months
following a change in control of the Company (as defined below), "cause" shall
be deemed to have occurred only upon the happening of an event referred to in
clause (i) above; and (D) the term "material" as used in clauses (ii), (iii)
and (iii) above shall be construed by reference to the effect of the relevant
action or omission on the Company taken as a whole. For purposes of the
foregoing, a change in control of the Company will be considered to have
occurred if the group in control of the Company shall no longer include at
least one of the following: (i) Xxx Xxxxxxx, members of his family or
representatives thereof, (2) Xxxx X. Xxxxxx, members of his family or
representatives thereof, or (iii) representatives of Xxxxxx-Tribune Corporation
(but only if the present shareholders remain in control of such corporation).
The term "family" as used herein means the named person's estate, spouse and
lineal descendants and any trust or other investment
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vehicle for the primary benefit of such named person or members of his family
and the term "representatives" includes executors and trustees.
(c) By giving notice to Executive, the Company at any time: (i) may
require that any or all of the certificates or other instruments or property
evidencing or constituting any or all of the Restricted Shares or any or all
Restricted Share Distributions then subject to forfeiture be held in escrow by
a bank or other institution, or by the Company itself, until the Vesting Date;
(ii) may require that Executive deliver a stock power or other instrument
endorsed in blank relating to any Restricted Shares held in escrow; and (iii)
may require that any and all Restricted Shares be held in the name of such
escrow agent (in such capacity) as registered or record owner. Any Restricted
Shares and Restricted Share Distributions held in escrow which no longer are
subject to forfeiture (as determined pursuant to Section 1(b) hereof) will be
delivered out of escrow to Executive within a reasonable time after the Vesting
Date, subject to the satisfaction by Executive of applicable federal and state
securities laws and withholding tax requirements, including any federal, state
or local withholding taxes. Any Restricted Share Distributions which are not
held in escrow may be received and retained by Executive free of the
restrictions and forfeiture provisions of this Section 1.
(d) Except as provided by this Agreement, prior to the Vesting Date,
Executive will not transfer or otherwise dispose of any Restricted Shares which
are subject to forfeiture or transfer or dispose of any such Restricted Share
Distributions held in escrow pursuant to Section 1(c), and any such attempt to
dispose of or transfer any such Restricted Shares or Restricted Share
Distributions will be void and ineffective for all purposes. Each stock
certificate or other instrument evidencing Restricted Shares subject to
forfeiture will bear the following legend:
SHARES OF THE CORPORATION REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
RESTRICTED STOCK AWARD AGREEMENT DATED AS OF JULY 1, 1996 WHICH CONTAINS
PROVISIONS RESTRICTING TRANSFER OF SUCH SHARES, REQUIRING SUCH SHARES TO
BE FORFEITED TO TELE-COMMUNICATIONS, INC. IN CERTAIN CIRCUMSTANCES AND
OTHER MATTERS. A COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
The words "transfer" and "dispose" include the making of any sale, exchange or
other transfer or disposition of any ownership interest whatsoever with respect
to the Restricted Shares or subject to the last sentence of Section 1(c),
Restricted Share Distributions. Nothing in this Section 1(d) will prevent the
transfer or other disposition, without consideration, of Restricted Shares or
Restricted Share Distributions to a personal representative of Executive or to
one or more members of Executive's immediate family or to trusts or similar
entities for their benefit; provided, however, that in the case of such a
transfer, each transferee must agree in writing to take such Restricted Shares
or Restricted Share Distributions subject to the forfeiture provisions
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described above and to be fully bound by this Agreement. As used in this
Agreement, the term "personal representative" will mean the executor or
executors of the will or administrator or administrators of the estate and all
other legal representatives (by operation of law or otherwise) of Executive.
(e) Whenever any Restricted Shares become free of the rights and
restrictions imposed by this Agreement, the holder of such Restricted Shares
will be entitled to receive a certificate or certificates not bearing the
restrictive legend provided for in Section 1(d). If the certificate(s)
evidencing such Restricted Shares are not held in escrow pursuant to Section
1(c), then the holders thereof must deliver them to the Company in order to
receive the unlegended certificate(s) contemplated by this Section 1(e).
(f) Executive represents and warrants that he will be acquiring the
Restricted Shares to be acquired by him pursuant to this Agreement for his own
account and not with a view to reselling or distributing all or any part of the
Restricted Shares in any transaction which would constitute a "distribution"
within the meaning of the Securities Act of 1933, as now or subsequently in
effect (the "Securities Act"). Executive acknowledges that the Initial Shares
have not been, and it is likely that any other Restricted Shares will not be,
registered under the Securities Act; that WestMarc neither is obligated nor
intends to effect such registration; that absent such registration (or an
exemption from registration), Executive may be required to hold the Restricted
Shares for an indefinite period of time; that the exemption from registration
under the Securities Act provided by Rule 144 promulgated under the Securities
Act likely will not be available to Executive; and that even if available, such
Rule would permit resales of the Restricted Shares only in limited amounts and
upon compliance with the terms and conditions of such Rule.
(g) Executive agrees that the certificates evidencing Restricted Shares to
be registered in the name of Executive will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT IS IN
EFFECT WITH RESPECT TO SUCH SECURITIES OR AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS APPLICABLE.
(h) If at any time the Board of Directors of WestMarc determines, in its
discretion, that the listing, registration or qualification of any Restricted
Shares (other than the Initial Shares) issuable pursuant to Section 1(a) or
otherwise upon any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of or in connection with such issuance, then such
Restricted Shares need not be issued unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to WestMarc's
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Board of Directors. WestMarc in no event will be obligated to issue any
Restricted Shares in any manner in contravention of the Securities Act or any
state securities law provided, however, that if WestMarc does not issue such
Restricted Shares for the reasons set forth in this sentence or the prior
sentence, it will substitute a distribution of cash or other property to
compensate for the failure to issue such Restricted Shares. The Board of
Directors of WestMarc may, in connection with any issuance of Restricted Shares
(other than the Initial Shares) pursuant to Section 1(a), require that, as a
condition precedent to such issuance, in whole or in part, Executive make
written representations to the effect set forth in Section 1(f) and also may
impose such other terms and conditions as WestMarc's Board of Directors may
reasonably require in order to cause such issuance to comply with all
applicable laws.
(i) Executive will make appropriate arrangements with the Company and
WestMarc for any taxes which either of them is obligated to collect in
connection with any issuance, payment, distribution, transfer or disposition of
any Restricted Shares or Restricted Share Distributions, including any federal,
state, or local withholding taxes (but excluding any stock transfer taxes
payable in connection with the transfer by the Company of the Initial Shares to
Executive, which taxes will be paid by the Company), and the Company and
WestMarc, as applicable, will be entitled to withhold from amounts or other
consideration payable or issuable to Executive under this Agreement or
otherwise such amounts as may be required by applicable law.
(j) Subject to Sections 1(b) through (i), Executive will have, with
respect to each type or class of Restricted Shares, all rights of a holder of
Restricted Shares of such type or class, including, without limitation, voting
rights and rights to receive dividends or other distributions with respect to
the Restricted Shares.
(k) WestMarc agrees not to effect the transfer by Executive or any
subsequent holder (except as otherwise expressly contemplated hereby) of any of
the Restricted Shares on its books during any period in which such Restricted
Shares are subject to forfeiture to the Company as set forth in Section 1(b)
hereof. A copy of this Agreement shall be filed with the Secretary of WestMarc.
(l) The Company represents and warrants to Executive that (A) it owns of
record and beneficially, and has good title to, the Initial Shares being
awarded hereby to Executive and (B) it has the right, power and authority to
enter into this Agreement and to transfer and deliver the Initial Shares to
Executive in accordance with and subject to the terms of this Agreement, free
and clear of any liens and encumbrances other than those set forth in or
contemplated by this Agreement.
2. Notices. All notices to be given under this Agreement will be in
writing and will be deemed duly given when delivered personally or mailed,
certified mail, return receipt requested, postage prepaid and addressed as
follows:
(a) If to be given to the Company:
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Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy similarly addressed
and marked to the attention of:
General Counsel
(b) If to be given to WestMarc:
WestMarc Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
with a copy similarly addressed
and marked to the attention of
the Legal Department
(c) If to be given to Executive
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
or to such other address as any part may furnish to the other parties in
writing in accordance with this Section 2.
3. SEVERABILITY. The provisions of this Agreement are severable and if any
such provision or its application to any person or circumstance is held by a
court or governmental authority of competent jurisdiction to be invalid, void
or unenforceable, the remaining provisions of this Agreement, or the
application of such provision to persons or circumstances other than those as
to which it has been held invalid or unenforceable, will remain in full force
and effect and will in no way be affected, impaired or invalidated; provided,
that if any provision or its application is so held to be invalid, void or
unenforceable by a court or governmental authority the Company may substitute a
suitable and equitable provision in order to carry out the intent and purpose
of the invalid, void or unenforceable provision.
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4. Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion will not be considered a waiver of any
breach of that or any other provision of this Agreement.
5. Miscellaneous. This agreement may not be changed nor can any provision
be waived except by an instrument in writing duly signed by the party to be
charged, and this Agreement constitutes the entire agreement among the Company,
WestMarc and Executive with respect to the subject matter (other than, in the
case of the Company and Executive, the Employment Agreement). This Agreement
will be interpreted, governed and controlled by the law of the State of
Colorado, without reference to principles of conflict of laws.
This Agreement has been executed as of the day and year first above
written.
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX XXXXXXXX
TELE-COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
WESTMARC COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman of the Board
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