Exhibit 10.2
LIBERTY GLOBAL, INC.
2005 NONEMPLOYEE DIRECTOR INCENTIVE PLAN
ARTICLE I
Purpose of
Plan
1.1
Purpose . The purpose of the Plan is to provide a method
whereby eligible Nonemployee Directors of the Company may be
awarded additional remuneration for services rendered and
encouraged to invest in capital stock of the Company, thereby
increasing their proprietary interest in the Company’s
businesses and increasing their personal interest in the continued
success and progress of the Company. The Plan is also intended to
aid in attracting Persons of exceptional ability to become
Nonemployee Directors of the Company.
1.2
Effective Date . The Plan was originally effective
May 11, 2004 (the “Effective Date”). The Plan, as
amended and restated, became effective as of April 1, 2005,
with respect to Awards made after that date.
ARTICLE II
Definitions
2.1
Certain Defined Terms . Capitalized terms not defined
elsewhere in the Plan shall have the following meanings (whether
used in the singular or plural):
“Affiliate”
of the Company means any corporation, partnership or other business
association that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with the Company.
“Agreement”
means a stock option agreement, stock appreciation rights
agreement, restricted shares agreement, stock units agreement or an
agreement evidencing more than one type of Award, specified in
Section 10.5, as any such Agreement may be supplemented or
amended from time to time.
“Approved
Transaction” means any transaction in which the Board (or, if
approval of the Board is not required as a matter of law, the
stockholders of the Company) shall approve (i) any consolidation or
merger of the Company, or binding share exchange, pursuant to which
shares of Common Stock of the Company would be changed or converted
into or exchanged for cash, securities or other property, other
than any such transaction in which the common stockholders of the
Company immediately prior to such transaction have the same
proportionate ownership of the Common Stock of, and voting power
with respect to, the surviving corporation immediately after such
transaction, (ii) any merger, consolidation or binding share
exchange to which the
Company is a party as a result of which the
Persons who are common stockholders of the Company immediately
prior thereto have less than a majority of the combined voting
power of the outstanding capital stock of the Company ordinarily
(and apart from the rights accruing under special circumstances)
having the right to vote in the election of directors immediately
following such merger, consolidation or binding share exchange,
(iii) the adoption of any plan or proposal for the liquidation
or dissolution of the Company, or (iv) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company.
“Award”
means a grant of Options, SARs, Restricted Shares, Stock Units
and/or cash under the Plan.
“Board”
means the Board of Directors of the Company.
“Board
Change” means, during any period of two consecutive years,
individuals who at the beginning of such period constituted the
entire Board cease for any reason to constitute a majority thereof
unless the election, or the nomination for election, of each new
director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of the period.
“Code”
means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute or statutes thereto. Reference to
any specific Code section shall include any successor
section.
“Common
Stock” means each or any (as the context may require) series
of the Company ’ s common stock.
“Company”
means Liberty Global, Inc., a Delaware corporation.
“Control
Purchase” means any transaction (or series of related
transactions) in which (i) any person (as such term is defined
in Sections 13(d)(3) and 14(d)(2) of the Exchange Act),
corporation or other entity (other than the Company, any Subsidiary
of the Company or any employee benefit plan sponsored by the
Company or any Subsidiary of the Company) shall purchase any Common
Stock of the Company (or securities convertible into Common Stock
of the Company) for cash, securities or any other consideration
pursuant to a tender offer or exchange offer, without the prior
consent of the Board, or (ii) any person (as such term is so
defined), corporation or other entity (other than the Company, any
Subsidiary of the Company, any employee benefit plan sponsored by
the Company or any Subsidiary of the Company or any Exempt Person
(as defined below)) shall become the “beneficial owner”
(as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the then
outstanding securities of the Company ordinarily (and apart from
the rights accruing under special circumstances) having the right
to vote in the election of directors (calculated as provided in
Rule 13d-3(d) under the Exchange Act in the case of rights to
acquire the Company’s securities), other than in a
transaction (or series of related transactions) approved by
the
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Board. For purposes of this definition,
“Exempt Person” means each of (a) the Chairman of
the Board, the President and each of the directors of Liberty Media
International, Inc. as of the Distribution Date, and (b) the
respective family members, estates, and heirs of each of the
Persons referred to in clause (a) above and any trust or other
investment vehicle for the primary benefit of any of such Persons
or their respective family members or heirs. As used with respect
to any Person, the term “family member” means the
spouse, siblings and lineal descendants of such Person.
“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.
“Distribution
Date” means the date on which Liberty Media International,
Inc. ceased to be a wholly owned subsidiary of Liberty Media
Corporation, a Delaware corporation.
“Dividend
Equivalents” means, with respect to Restricted Shares to be
issued at the end of the Restriction Period, to the extent
specified by the Board only, an amount equal to all dividends and
other distributions (or the economic equivalent thereof) which are
payable to stockholders of record during the Restriction Period on
a like number and kind of shares of Common Stock.
“Domestic
Relations Order” means a domestic relations order as defined
by the Code or Title I of the Employee Retirement Income Security
Act, or the rules thereunder.
“Effective
Date” has the meaning ascribed thereto in
Section 1.2.
“Equity
Security” shall have the meaning ascribed to such term in
Section 3(a)(11) of the Exchange Act, and an equity security
of an issuer shall have the meaning ascribed thereto in
Rule 16a-1 promulgated under the Exchange Act, or any
successor Rule.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute or statutes thereto.
Reference to any specific Exchange Act section shall include any
successor section.
“Fair Market
Value” of a share of any series of Common Stock on any day
means the last sale price (or, if no last sale price is reported,
the average of the high bid and low asked prices) for a share of
such series of Common Stock on such day (or, if such day is not a
trading day, on the next preceding trading day) as reported on the
consolidated transaction reporting system for the principal
national securities exchange on which shares of such series of
Common Stock are listed on such day or if such shares are not then
listed on a national securities exchange, then as reported on
Nasdaq. If for any day the Fair Market Value of a share of the
applicable series of Common Stock is not determinable by any of the
foregoing means, then the Fair Market Value for such day
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shall
be determined in good faith by the Board on the basis of such
quotations and other considerations as the Board deems
appropriate.
“Free
Standing SAR” has the meaning ascribed thereto in
Section 7.1.
“Holder”
means a Person who has received an Award under the Plan.
“Nasdaq”
means The Nasdaq Stock Market.
“Nonemployee
Director” means an individual who is a member of the Board
and who is not an employee of the Company or any
Subsidiary.
“Nonqualified
Stock Option” means a stock option granted under
Article VI.
“Option”
means a Nonqualified Stock Option.
“Person”
means an individual, corporation, limited liability company,
partnership, trust, incorporated or unincorporated association,
joint venture or other entity of any kind.
“Plan”
means this Liberty Global, Inc. 2005 Nonemployee Director Incentive
Plan.
“Restricted
Shares” means shares of any series of Common Stock or the
right to receive shares of any specified series of Common Stock, as
the case may be, awarded pursuant to Article VIII.
“Restriction
Period” means a period of time beginning on the date of each
Award of Restricted Shares and ending on the Vesting Date with
respect to such Award.
“Retained
Distribution” has the meaning ascribed thereto in
Section 8.3.
“SARs”
means stock appreciation rights, awarded pursuant to
Article VII, with respect to shares of any specified series of
Common Stock.
“Stock Unit
Awards” has the meaning ascribed thereto in
Section 9.1.
“Subsidiary”
of a Person means any present or future subsidiary (as defined in
Section 424(f) of the Code) of such Person or any business entity
in which such Person owns, directly or indirectly, 50% or more of
the voting, capital or profits interests. An entity shall be deemed
a subsidiary of a Person for purposes of this definition only for
such periods as the requisite ownership or control relationship is
maintained.
“Tandem
SARs” has the meaning ascribed thereto in
Section 7.1.
“Vesting
Date,” with respect to any Restricted Shares awarded
hereunder, means the date on which such Restricted Shares cease to
be subject to a risk of forfeiture, as
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designated in or determined in accordance with
the Agreement with respect to such Award of Restricted Shares
pursuant to Article VIII. If more than one Vesting Date is
designated for an Award of Restricted Shares, reference in the Plan
to a Vesting Date in respect of such Award shall be deemed to refer
to each part of such Award and the Vesting Date for such
part.
ARTICLE III
Administration
3.1
Administration . The Plan shall be administered by the
Board, provided that it may delegate to employees of the Company
certain administrative or ministerial duties in carrying out the
purposes of the Plan.
3.2
Powers . The Board shall have full power and authority to
grant to eligible Persons Options under Article VI of the
Plan, SARs under Article VII of the Plan, Restricted Shares
under Article VIII of the Plan and/or Stock Units under
Article IX of the Plan, to determine the terms and conditions
(which need not be identical) of all Awards so granted, to
interpret the provisions of the Plan and any Agreements relating to
Awards granted under the Plan and to supervise the administration
of the Plan. The Board in making an Award may provide for the
granting or issuance of additional, replacement or alternative
Awards upon the occurrence of specified events, including the
exercise of the original Award. The Board shall have sole authority
in the selection of Persons to whom Awards may be granted under the
Plan and in the determination of the timing, pricing, and amount of
any such Award, subject only to the express provisions of the Plan.
In making determinations hereunder, the Board may take into account
such factors as the Board in its discretion deems
relevant.
3.3
Interpretation . The Board is authorized, subject to the
provisions of the Plan, to establish, amend and rescind such rules
and regulations as it deems necessary or advisable for the proper
administration of the Plan and to take such other action in
connection with or in relation to the Plan as it deems necessary or
advisable. Each action and determination made or taken pursuant to
the Plan by the Board, including any interpretation or construction
of the Plan, shall be final and conclusive for all purposes and
upon all Persons. No member of the Board shall be liable for any
action or determination made or taken by him or the Board in good
faith with respect to the Plan.
ARTICLE IV
Shares Subject to the
Plan
4.1
Number of Shares . Subject to the provisions of this
Article IV, the maximum number of shares of Common Stock with
respect to which Awards may be granted during the term of the Plan
shall be 5 million shares. Shares of Common Stock will be made
available from the authorized but unissued shares of the Company or
from shares reacquired by the Company, including shares purchased
in the open market. The shares of Common Stock subject to
(a) any Award granted under the Plan that shall expire,
terminate or be annulled for any reason without
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having been exercised (or
considered to have been exercised as provided in Section 7.2),
(b) any Award of any SARs granted under the Plan that shall be
exercised for cash, and (c) any Award of Restricted Shares or
Stock Units that shall be forfeited prior to becoming vested
(provided that the Holder received no benefits of ownership of such
Restricted Shares or Stock Units other than voting rights and the
accumulation of Retained Distributions and unpaid Dividend
Equivalents that are likewise forfeited) shall again be available
for purposes of the Plan.
4.2
Adjustments . If the Company subdivides its outstanding
shares of any series of Common Stock into a greater number of
shares of such series of Common Stock (by stock dividend, stock
split, reclassification, or otherwise) or combines its outstanding
shares of any series of Common Stock into a smaller number of
shares of such series of Common Stock (by reverse stock split,
reclassification, or otherwise) or if the Board determines that any
stock dividend, extraordinary cash dividend, reclassification,
recapitalization, reorganization, split-up, spin-off, combination,
exchange of shares, warrants or rights offering to purchase such
series of Common Stock or other similar corporate event (including
mergers or consolidations other than those which constitute
Approved Transactions, adjustments with respect to which shall be
governed by Section 10.1(b)) affects any series of Common
Stock so that an adjustment is required to preserve the benefits or
potential benefits intended to be made available under the Plan,
then the Board, in its sole discretion and in such manner as the
Board may deem equitable and appropriate, may make such adjustments
to any or all of (a) the number and kind of shares of stock
which thereafter may be awarded, optioned, or otherwise made
subject to the benefits contemplated by the Plan, (b) the
number and kind of shares of stock subject to outstanding Awards,
and (c) the purchase or exercise price and the relevant
appreciation base with respect to any of the foregoing,
provided, however, that the number of shares subject to any
Award shall always be a whole number. Notwithstanding the
foregoing, if all shares of any series of Common Stock are
redeemed, then each outstanding Award shall be adjusted to
substitute for the shares of such series of Common Stock subject
thereto the kind and amount of cash, securities or other assets
issued or paid in the redemption of the equivalent number of shares
of such series of Common Stock and otherwise the terms of such
Award, including, in the case of Options or similar rights, the
aggregate exercise price, and, in the case of Free Standing SARs,
the aggregate base price, shall remain constant before and after
the substitution (unless otherwise determined by the Board and
provided in the applicable Agreement). The Board may, if deemed
appropriate, provide for a cash payment to any Holder of an Award
in connection with any adjustment made pursuant to this
Section 4.2.
ARTICLE V
Eligibility
5.1
General . The Persons who shall be eligible to participate
in the Plan and to receive Awards under the Plan shall, subject to
Section 5.2, be such Persons who are Nonemployee Directors as
the Board shall select. Awards may be made to Nonemployee Directors
who hold or have held Awards under the Plan or any similar or other
awards under any other plan of the Company or any of its
Affiliates.
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5.2
Ineligibility . No Person who is not a Nonemployee Director
shall be eligible to receive an Award.
ARTICLE VI
Stock
Options
6.1
Grant of Options . Subject to the limitations of the Plan,
the Board shall designate from time to time those eligible Persons
to be granted Options, the time when each Option shall be granted
to such eligible Persons, the series and number of shares of Common
Stock subject to such Option, and, subject to Section 6.2, the
purchase price of the shares of Common Stock subject to such
Option.
6.2
Option Price. The price at which shares may be purchased
upon exercise of an Option shall be fixed by the Board and may be
no less than the Fair Market Value of the shares of the applicable
series of Common Stock subject to the Option as of the date the
Option is granted.
6.3
Term of Options. Subject to the provisions of the Plan with
respect to death, retirement and termination of service, the term
of each Option shall be for such period as the Board shall
determine as set forth in the applicable Agreement.
6.4
Exercise of Options . An Option granted under the Plan shall
become (and remain) exercisable during the term of the Option to
the extent provided in the applicable Agreement and the Plan and,
unless the Agreement otherwise provides, may be exercised to the
extent exercisable, in whole or in part, at any time and from time
to time during such term; provided, however, that subsequent
to the grant of an Option, the Board, at any time before complete
termination of such Option, may accelerate the time or times at
which such Option may be exercised in whole or in part (without
reducing the term of such Option).
6.5
Manner of Exercise .
(a) Form of
Payment. An Option shall be exercised by written notice to the
Company upon such terms and conditions as the Agreement may provide
and in accordance with such other procedures for the exercise of
Options as the Board may establish from time to time. The method or
methods of payment of the purchase price for the shares to be
purchased upon exercise of an Option and of any amounts required by
Section 10.9 shall be determined by the Board and may consist
of (i) cash, (ii) check, (iii) whole shares of any
series of Common Stock, (iv) the withholding of shares of the
applicable series of Common Stock issuable upon such exercise of
the Option, (v) the delivery, together with a properly
executed exercise notice, of irrevocable instructions to a broker
to deliver promptly to the Company the amount of sale or loan
proceeds required to pay the purchase price, or (vi) any
combination of the foregoing methods of payment, or such other
consideration and method of payment as may be permitted for the
issuance of shares under the Delaware General Corporation Law. The
permitted method or methods of payment of the amounts payable upon
exercise of an Option, if other than in
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cash,
shall be set forth in the applicable Agreement and may be subject
to such conditions as the Board deems appropriate.
(b) Value of
Shares . Unless otherwise determined by the Board and provided
in the applicable Agreement, shares of any series of Common Stock
delivered in payment of all or any part of the amounts payable in
connection with the exercise of an Option, and shares of any series
of Common Stock withheld for such payment, shall be valued for such
purpose at their Fair Market Value as of the exercise
date.
(c) Issuance of
Shares . The Company shall effect the transfer of the shares of
Common Stock purchased under the Option as soon as practicable
after the exercise thereof and payment in full of the purchase
price therefor and of any amounts required by Section 10.9,
and within a reasonable time thereafter, such transfer shall be
evidenced on the books of the Company. Unless otherwise determined
by the Board and provided in the applicable Agreement, (i) no
Holder or other Person exercising an Option shall have any of the
rights of a stockholder of the Company with respect to shares of
Common Stock subject to an Option granted under the Plan until due
exercise and full payment has been made, and (ii) no
adjustment shall be made for cash dividends or other rights for
which the record date is prior to the date of such due exercise and
full payment.
6.6
Nontransferability . Unless otherwise determined by the
Board and provided in the applicable Agreement, Options shall not
be transferable other than by will or the laws of descent and
distribution or pursuant to a Domestic Relations Order, and, except
as otherwise required pursuant to a Domestic Relations Order,
Options may be exercised during the lifetime
