EXHIBIT 99.2
AMENDED AND RESTATED DEFERRED COMPENSATION AGREEMENT
THIS AMENDED AND RESTATED DEFERRED COMPENSATION AGREEMENT ("Agreement") is
made as of December 28, 2005, by and between LIBERTY MEDIA CORPORATION, a
Delaware corporation ("the Company"), and Xxxxxx X. Xxxxxxx (the "Executive").
RECITALS
The Executive is an employee of the Company. The Company and the Executive
entered into a deferred compensation agreement dated January 1, 2004 (the
"Original Agreement") pursuant to which the Company provided to the Executive
certain additional remuneration for services rendered by the Executive to the
Company. The Company and the Executive desire to amend and restate the Original
Agreement to cause it to comply with the provisions of the AJCA (as defined
below).
AGREEMENT
In consideration of the mutual promises and covenants contained in this
Agreement, and intending to be legally bound, the Company and the Executive
agree as follows:
1. DEFINITIONS. In addition to the terms defined above, the following
terms, when used in this Agreement, have the following meanings:
"Account" means the account established and maintained by the Company
for the Executive pursuant to Section 2 of this Agreement.
"Affiliate" means, with respect to any Person, any Person that
directly or indirectly Controls, is Controlled by, or is under common Control
with such Person, and "Control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" has the meaning specified in the preamble to this
Agreement.
"AJCA" has the meaning specified in Section 13 of this Agreement.
"Board" means the board of directors of the Company.
"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.
"Committee" means the Incentive Plan Committee of the Board.
"Company" has the meaning specified in the preamble to this Agreement.
"Deferred Amount" means U.S. $50,000 per annum.
"Executive" has the meaning specified in the preamble to this
Agreement.
"Investment Return" means, as to the daily balance in the Account, 8%
per annum, compounded quarterly as of the end of each calendar quarter.
"Original Agreement" has the meaning specified in the recitals to this
Agreement.
"Person" means a human being or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
2. ACCOUNT. The Company has established and will maintain, in the name of
the Executive, an account (the "Account") to which the Company has credited or
will credit (i) the Deferred Amount in quarterly installments of U.S. $12,500 at
the end of each calendar quarter beginning with the calendar quarter ending on
March 31, 2004 and continuing through the calendar quarter ending on March 31,
2006, and (ii) the Investment Return for each calendar quarter beginning on or
after April 1, 2004 and ending on or before March 31, 2008. Within 30 days after
the end of each calendar year during the term of this Agreement, the Company
will provide to the Executive a statement setting forth all credits to the
Account during such calendar year and the balance in the Account as of the end
of such calendar year.
3. PAYMENT. Within ten Business Days following March 31, 2008, the
Company will deliver to the Executive or his legal representative cash equal to
the balance in the Account as of March 31, 2008, less the amount of all federal,
state and other governmental withholding tax requirements imposed upon the
Company.
4. BENEFITS PAYABLE FROM GENERAL ASSETS. Amounts payable hereunder will
be paid exclusively from the general assets of the Company, and the Executive
will not have any claim, right, security interest, or other interest in any
fund, trust, account, insurance contract, or asset of the Company from which
payments may be made. The Company's liability for the payment of benefits
hereunder will be evidenced only by this Agreement.
5. NO TRUST. Nothing contained in this Agreement and no action taken
pursuant to the provisions of this Agreement will create or be construed to
create a trust of any kind, or a fiduciary relationship between Executive and
the Company. Notwithstanding the foregoing, the Company may elect to establish a
separate trust to accumulate funds to discharge its obligations hereunder, but
the Executive will have no rights, title or interest in any such trust. However,
payments from any such trust will be deemed to be payments by the Company under
this Agreement.
6. ALIENATION. No right or benefit under this Agreement will be subject
to anticipation, alienation, sale, assignment, pledge, encumbrance, or charge,
and any attempt to anticipate, alienate, sell, assign, pledge, encumber, or
charge the same will be void. No right or
2
benefit under this Agreement will in any manner be liable for or subject to the
debts, contracts, liabilities, or torts of the Person entitled to such benefit.
7. ADMINISTRATION; CLAIMS PROCEDURE. The administration, construction and
interpretation of this Agreement will be vested in the Committee. The Executive
or his legal representative will submit any claim under this Agreement in
writing to the Committee.
8. NOTICE. Any notice or other communication with respect to this
Agreement, including any Allocation Election, will be in writing and will be
addressed as follows:
If to the Company:
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: 720-875-5382
If to the Executive:
Xxxxxx X. Xxxxxxx
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
Facsimile: XXXXXXXXXXXXXX
Any notice or other communication will be deemed to have been given (a) on the
date of receipt if personally delivered, (b) the date of receipt, if sent by
registered or certified U.S. mail, postage prepaid, or five days after being
sent by U.S. mail, postage prepaid, (c) one Business Day after receipt, if sent
by confirmed facsimile or telecopier transmission or (d) one Business Day after
having been sent by a nationally recognized courier service. In computing time
periods, the day of the notice will be included.
9. AMENDMENT. This Agreement may be amended from time to time only by a
written instrument signed by the Company and the Executive.
10. EXECUTIVE'S EMPLOYMENT. Nothing contained in this Agreement, and no
action of the Company, the Committee or the Board with respect hereto, will
confer or be construed to confer on the Executive any right to continue in the
employ of the Company or any of its Affiliates or interfere in any way with the
right of the Company or any employing Affiliate to terminate the Executive's
employment at any time, with or without cause, subject to the provisions of any
employment agreement between the Executive and the Company or any employing
Affiliate.
3
11. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of Colorado. Each party hereby
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 such party may
have based on inconvenience of the forum.
12. CONSTRUCTION. References in this Agreement to "this Agreement" and the
words "herein," "hereof," "hereunder" and similar terms include all Exhibits
appended hereto. The word "include" and all variations thereof are used in an
illustrative sense and not in a limiting sense. 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.
13. EFFECT OF AMERICAN JOBS CREATION ACT OF 2004. As of the date of this
Agreement, the American Jobs Creation Act of 2004 (the "AJCA") is in effect.
Various provisions of the AJCA impose requirements with respect to the deferral
of income recognition under nonqualified deferred compensation plans. The
Internal Revenue Service has issued, and is expected in the future to issue,
regulations, rulings or other pronouncements under, or interpretations of, the
AJCA. The parties believe that the terms of the deferred compensation
arrangement established by this Agreement comply with the requirements of the
AJCA. If, however, either of the parties determines in good faith that the
deferred compensation agreement established by this Agreement does not comply
with those requirements, the Company and the Executive will cooperate in
amending this Agreement in the manner and to the extent necessary to cause it to
comply with the provisions of the AJCA while preserving, to the maximum extent
possible, the economic arrangement established by this Agreement.
14. DUPLICATE ORIGINALS. The Company and the Executive 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.
15. 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 Executive regarding the subject matter hereof. The Executive 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 deferred compensation arrangement described
herein and replaces and makes null and void any prior agreements between the
Executive and the Company regarding such deferred compensation arrangement. This
Agreement will be binding upon, and inure to the benefit of, the parties and
their respective heirs, successors and assigns.
16. SEVERABILITY. Whenever possible each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement will be prohibited or invalid under such
law, such provision will be ineffective
4
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision of this Agreement.
17. EXECUTIVE'S ACCEPTANCE. The Executive 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.
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
ACCEPTED:
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
5
