EXHIBIT 10.6
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RESTATED AND AMENDED EMPLOYMENT AGREEMENT
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RESTATED AND AMENDED EMPLOYMENT AGREEMENT dated as of November 1, 1992
between TELE-COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and
Xxxx X. Xxxxxx, who resides at 00000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000
("Executive").
WHEREAS, the Company and Executive are parties to that certain
Employment Agreement dated as of January 1, 1982, as heretofore amended (the
"Existing Agreement"); and
WHEREAS, the Company and Executive desire to amend the Existing
Agreement to provide for an increase in Executive's annual compensation, to
eliminate certain provisions of the Existing Agreement that have ceased by their
terms to be effective and to make certain other changes, and to restate the
Existing Agreement as so amended in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants and agreement
herein contained and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, do hereby agree as follows:
1. Term and Termination.
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(a) Term. The term of Executive's employment (the "Employment
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Term") under the Existing Agreement initially commenced on January 1, 1982 and
ended on December 31, 1986 and, pursuant to the Existing Agreement, has been
and, pursuant to and subject to the terms and conditions of this Agreement, will
continue to be extended daily so that the remainder of the Employment Term shall
at all times on and prior to the effective date of the termination of
Executive's employment as provided herein be five (5) years. During the
Employment Term, the Company agrees to employ Executive and Executive agrees to
serve the Company upon and subject to the terms and conditions set forth in this
Agreement.
(b) Termination by the Company. Executive's employment by the
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Company may be terminated by the Company only as provided in clauses (i), (ii)
and (iii) below.
(i) Upon the death of Executive.
(ii) Effective as of December 31 of any year, upon giving
written notice of such termination to Executive six (6) months
prior to the effective date thereof and by paying to Executive in
a lump sum upon such termination all remaining compensation
(other than compensation the payment of which was deferred by
Executive prior to such termination) that would have been payable
under Section 4 hereof if this Agreement remained in full force
and effect for the full five-year balance of the Employment Term.
(iii) At any time for "cause", which for purposes of this
Agreement shall be deemed to have occurred only on the happening of
any of the following:
(A) the plea of guilty to, or conviction for, the
commission of a felony offense by Executive; provided,
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however, that after indictment, the Company may suspend
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Executive from the rendition of services but without
limiting or modifying in any other way the Company's
obligations under this Agreement;
(B) a material breach by Executive of a material
fiduciary duty owed to the Company;
(C) a material breach by Executive of the covenants
made by him in Sections 9, 10 and 11 hereof; or
(D) the willful and gross neglect by Executive of the
material duties specifically and expressly required by this
Agreement;
provided, however, that any claim that "cause", within the meaning of
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clause (B), (C) or (D) 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; provided, further, that during the period of twelve
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(12) 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 (A) above; and provided,
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further, that the term "material" as used in clauses (B), (C) and (D)
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above and in Section 13 hereof 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: (x)
Xxx Xxxxxxx, members of his family or representatives thereof, or (y)
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 vehicle for the primary
benefit of such named person or members of his family and the term
"representatives" includes executors and trustees.
(c) Effect of Termination by the Company. If Executive's
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employment by the Company is terminated by the Company pursuant to Section 1(b)
hereof, all compensation under Section 4 of this Agreement (other than
compensation the payment of which was deferred by Executive prior to such
termination) that has accrued in favor of Executive as of the date of such
termination, to the extent unpaid or delivered, shall be paid or delivered to
Executive on the date of termination. Upon such termination of Executive's
employment and payment of such amount (and, if applicable, the full amount
payable pursuant to clause (ii) of Section 1(b)), the Company's obligations
under this Agreement shall terminate, except as provided in Section 4 (as it
relates to compensation the payment of which was deferred by Executive prior to
such termination), Section 5, Section 6 (as it relates to expenses incurred
prior to such termination) and Section 8 of this Agreement. Executive
acknowledges that his obligations under Sections 9, 10, 11 and 12 hereof will
survive any such termination.
(d) Termination by Executive. Executive shall have the right
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to terminate his employment by the Company, and be relieved of any obligation to
render or provide any further services hereunder, as provided in clauses (i) and
(ii) below:
(i) Upon six (6) months prior written notice to the
Company of the effective date of such termination.
(ii) Immediately upon the giving of notice of termination
by Executive to the Company following a change in control of the
Company (as defined in Section 1(b) above).
If Executive's employment by the Company is terminated by Executive
pursuant to this Section 1(d), all compensation under Section 4 of this
Agreement (other than compensation the payment of which was deferred by
Executive prior to such termination) that has accrued in favor of Executive as
of the date of such
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termination, to the extent unpaid or undelivered, and, if Executive terminates
his employment pursuant to clause (ii) above, all remaining compensation (other
than compensation the payment of which Executive elected prior to such
termination to defer) that would have been payable under Section 4 hereof if
this Agreement remained in full force and effect for the full five-year balance
of the Employment Term, shall be paid or delivered to Executive in a lump sum on
the date of termination. Upon such termination of Executive's employment and
payment of such amounts, Executive and the Company shall each be relieved of any
further obligations under this Agreement, except (in the case of Executive) as
provided in Sections 9, 10, 11 and 12 of this Agreement, and except (in the case
of the Company) as provided in Section 4 (as it relates to compensation the
payment of which was deferred by Executive prior to such termination), Section
5, Section 6 (as it relates to expenses incurred prior to such termination) and
Section 8 of this Agreement.
2. Services to be Rendered by Executive. Executive Agrees to
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serve the Company as President and Chief Executive Officer of the Company. In
such capacity, Executive shall perform all reasonable acts customarily
associated with such positions, or necessary or desirable to protect and advance
the best interests of the Company. Executive shall perform such acts and carry
out such duties, and shall in all other respects serve the Company faithfully
and to the best of his ability. If Executive is elected a director or an officer
of any of the Company's subsidiaries during the Employment Term, Executive will
serve in any such capacities without further compensation except as may be
decided by the Company at the Company's sole election. The Company agrees that
shall, during the Employment Term, be based at the Company's principal executive
office, which shall be located in the Denver area, with the understanding that
Executive will travel as reasonably required in the performance of his duties
hereunder.
3. Time to be Devoted by Executive. Executive agrees to devote
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eighty percent (80%) of all of his business time, attention, efforts and
abilities to the business of the Company and to use his best efforts to promote
the interests of the Company.
4. Compensation Payable to Executive.
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(a) Commencing on the date of this Agreement and thereafter
during the Employment Term, the Company shall pay to Executive a salary at the
rate of $800,000 per annum. The Board of Directors shall review Executive's
compensation annually to determine, in its sole discretion, whether any increase
in Executive's salary is appropriate.
(b) Executive's annual compensation shall be paid to Executive
in accordance with the Company's regular policy but not less frequently than
once a month. With respect to the employment year commencing January 1, 1993,
Executive shall defer 40% of each monthly payment of Executive's annual
compensation for such year and, with respect to each employment year thereafter,
Executive shall be entitled to elect, by written notice to the Company received
no later than 30 days prior to the commencement of such employment year, to
defer such percentage (not in excess of 40%) as Executive may specify in such
notice, of each monthly payment of Executive's annual compensation for such year
(in each case, the "monthly deferred amount"). Each such monthly deferred amount
shall bear interest, compounded annually, at the rate of 8% per annum, from the
first day of the month of deferral to, but not including, the Determination
Date. As used herein, "Determination Date" shall mean the first business day of
the first full calendar month following the termination of Executive's
employment with the Company.
(c) The sum of the monthly deferred amounts pursuant to Section
4(b) above plus all interest accrued thereon to the Determination Date (the
"total deferred amount") shall be calculated as of the Determination Date and
shall be paid to Executive in substantially equal monthly payments over a 240-
month period commencing on the Determination Date and continuing on the first
day of each calendar month thereafter until paid in full. Each monthly payment
of the total deferred amount shall be accompanied by a payment of interest
thereon computed at the rate of 8% per annum, compounded annually, from and
including the Determination Date to the date of such payment. The Company and
Executive acknowledge that the payment of
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40% of each monthly payment of Executive's annual compensation during the
calendar year 1983 and $12,500 of each monthly payment of Executive's annual
compensation thereafter through the end of calendar year 1992 has been (and, in
the case of the December 1992 payment, will be) deferred pursuant to and as
required by the terms of Section 4 of the Existing Agreement (the "previously
deferred compensation"). The provisions of said Section 4 of the Existing
Agreement shall continue to govern with respect to the calculation of, accrual
of interest on, and payment of all such previously deferred compensation, and
such provisions as they relate to such previously deferred compensation shall
survive the execution and delivery of this Agreement unaffected hereby.
(d) If Executive dies while he is a full-time employee of the
Company or before the expiration of the period during which such deferred
payments are to be paid to him, the remaining deferred payments shall be paid
forthwith in a lump sum to Executive's designated beneficiary or beneficiaries.
The phrase "designated beneficiary or beneficiaries" shall mean Executive's
spouse, if she shall survive Executive, or such other person or persons named
from time to time by Executive in a signed instrument filed with the Company. If
the designation made in any such signed instrument shall for any reason be
ineffective, the phrase "designated beneficiary or beneficiaries" shall mean
Executive's estate.
(e) The amount of deferred compensation payable hereunder
(together with the interest applicable thereto) shall not in any way be reserved
or held in trust by the Company. Neither Executive nor any designated
beneficiary or personal representative shall have any rights against the Company
in respect of such deferred payments other than the rights of any unsecured
creditor of the Company. Deferred payments provided for herein shall not be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and shall not in any manner be liable or subject
to the debts, contracts, liabilities, engagements or torts of Executive, nor of
any designated beneficiary or personal representative. The payment to Executive
of such deferred payments shall be subject to the further condition that
Executive shall comply with the provisions of Section 10 of this Agreement
during the entire payment period and Executive shall comply with the provisions
of Sections 9 and 12 of this Agreement, if said provisions are applicable by
their terms, for the first two (2) years of the payment period.
5. Salary Continuation Plan.
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(a) At such time as Executive's employment with the Company
shall terminate, Executive shall be entitled to receive from the Company 240
consecutive monthly payments of $15,000, the first payment of which shall be
payable on the first day of the month succeeding the termination of Executive's
employment. The amount of the monthly payments provided for in the immediately
preceding sentence shall be increased at the rate of 12% per annum, compounded
annually from January 1, 1998 to the date that the first payment thereof
commences. The foregoing is referred to in this Agreement as the "Benefit."
(b) Upon the death of Executive, the payments provided for in
Section 5(a) above (or, if Executive dies after termination of his employment
and during the payment period contemplated by Section 5(a), any remaining such
payments) shall be made to Executive's designated beneficiary or beneficiaries.
The phrase "designated beneficiary or beneficiaries" shall mean Executive's
spouse, if she shall survive Executive, or such other person or persons named
from time to time by Executive in a signed instrument filed with the Company. If
the designation made in any such signed instrument shall for any reason be
ineffective, the phrase "designated beneficiary or beneficiaries" shall mean
Executive's estate.
(c) The payment to Executive of the Benefit shall be subject to
the condition that Executive shall comply with the provisions of Section 10 of
this Agreement during the entire payment period and Executive shall comply with
the provisions of Sections 9 and 12 of this Agreement, if said provisions are
applicable by their terms, during the first two (2) years of the payment period.
(d) The Benefit payable under this Agreement shall not in any
way be reserved or held in trust by the Company. Neither Executive nor any
designated beneficiary or personal representative shall
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have any rights against the Company in respect of such Benefit other than the
rights of an unsecured general creditor of the Company. Payments of the Benefit
shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and shall not in any manner be liable
or subject to the debts, contracts, liabilities, engagements or torts of
Executive, nor of any designated beneficiary or personal representative. The
Company shall not be obligated under any circumstances to fund its obligations
under this Section 5, but it may, however, at its sole option elect to fund such
obligations in whole or in part in any manner whatsoever including, but not
limited to, the purchase of life insurance on the life of the Executive, in any
amounts the Company deems appropriate. Any such funding shall remain a general
unrestricted asset of the Company and in no way security for the Company's
performance under this Section 5. Executive agrees to cooperate with the
Company, if so requested, in its obtaining such insurance.
(e) The Benefit provided for in this Section 5 is intended by
the parties to be in substitution for, and not in addition to, the "Benefit" as
defined in and contemplated by Section 16 of the Existing Agreement, the terms
and provisions of which Section 16 are superseded in their entirety by the terms
and provisions of this Section 5.
6. Expenses. The Company shall reimburse Executive for the
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reasonable amount of dining, hotel, traveling, entertainment and other expenses
necessarily incurred by Executive in the discharge of his duties hereunder.
7. Executive Benefit Plans; Use of Company Aircraft.
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(a) During the Employment Term, Executive shall be entitled to
participate in and to be accorded all rights and benefits under all formal
incentive compensation plans, stock incentive plans, employee stock purchase
plans, retirements plans, disability insurance, life insurance, health and major
medical insurance policy or policies, and other plans or benefits (including,
without limitation, any insurance covering Officers or Directors against errors
or omissions) now in existence or that may hereafter be adopted by the Company
for the benefit of its executive officers or key employees generally or for the
benefit of its employees generally, provided that Executive is eligible by the
terms thereof to participate therein.
(b) While he is employed by the Company pursuant to this
Agreement, Executive will be permitted by the Company to make use of the
Company's aircraft and flight crew from time to time for personal trips (each an
"Executive Flight"), subject to the conditions hereinafter set forth and
provided that the Executive Flights shall be limited to an aggregate Value (as
defined below) of $35,000 per year. The Company will bear the expense of each
Executive Flight permitted hereby and the Value of each Executive Flight shall
be treated as additional compensation to Executive. For purposes of the
foregoing, the Value of each Executive Flight shall be determined in accordance
with Treasury Regulation Section 1.61-21(g) (or any successor regulation
promulgated under the Internal Revenue Code of 1986, as amended) as from time to
time in effect. Executive will give the Company at least 48 hours notice of any
desired Executive Flight, stating the proposed schedule, the points of
origination and destination of the flight and, if so required by the Company,
such information about the general purpose of the Executive Flight as shall be
sufficient for the Company to determine that such flight does not violate any
requirement of applicable law. The Company will promptly thereafter inform
Executive of the availability of the aircraft and its flight crew. The Company
shall have no obligation to provide the aircraft and a flight crew for any
Executive Flight at any time when (i) a requested Executive Flight would
conflict with any actual or planned use of the aircraft by the Company, (ii) the
aircraft is undergoing any scheduled maintenance or repairs or is otherwise not
in a condition to be operated, or (iii) a qualified flight crew is unavailable
to operate the aircraft for a requested Executive Flight. In addition, the
Company will have no obligation hereunder to make the aircraft and its flight
crew available for any use or purpose, and Executive agrees not to use the same
for any use or purpose, which, in the opinion of the Company, is in violation of
or not permitted by applicable law as applied to either the Company or
Executive, or is not permitted under or stipulated in the insurance policies
maintained by the Company. The proposed schedule and points of origination and
destination of each Executive Flight will be subject to the approval of the
captain of the flight crew, who shall at all times be in charge and control of
the aircraft, and in no
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event shall the aircraft be operated beyond the geographical limits prescribed
in the insurance policies maintained by the Company.
8. Indemnification. The Company will indemnify and hold harmless
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Executive, to the fullest extent permitted by applicable law, in respect of any
liability, damage, cost or expense (including reasonable counsel fees) incurred
in connection with the defense of any claim, action, suit or proceeding to which
he is a party, or threat thereof, by reason of his being or having been an
officer or director of the Company or any subsidiary of the Company, or his
serving or having served at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, business organization, enterprise or other entity, including service with
respect to employee benefit plans. Without limiting the generality of the
foregoing, the Company will pay the expenses (including reasonable counsel fees)
of defending any such claim, action, suit or proceeding in advance of its final
disposition, upon receipt of an undertaking by Executive to repay all amounts
advanced if it should ultimately be determined that Executive is not entitled to
be indemnified under this Section.
9. Non-Competition. Executive agrees that while in the employ of
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the Company and for a period of two (2) years following the effective date of
the termination of his employment with the Company, unless such termination
results from a change in control of the Company (as defined in Section 1(b)
hereof), he will not, directly or indirectly, as principal or agent, or in any
other capacity, own, manage, operate, participate in or be employed by or
otherwise be interested in, or connected in any manner with, any person, firm,
corporation or other enterprise which directly competes in a material respect
with the business of the Company or any of its majority-owned subsidiaries as it
is conducted while Executive is employed by the Company; provided, however, that
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Executive may serve as Chairman of the Board of Liberty Media Corporation, a
Delaware corporation ("Liberty"), and own securities of Liberty without regard
to the foregoing or to the percentage limitation in the following sentence.
Nothing herein contained shall be construed as denying Executive the right to
own securities of any such corporation which is listed on a national securities
exchange or quoted in the NASDAQ System to the extent of an aggregate of 5% of
the amount of such securities outstanding.
10. Confidentiality. Executive agrees that while in the employ of
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the Company (otherwise than in the performance of his duties hereunder) and
thereafter, not to, directly or indirectly, make use of, or divulge to any
person, firm, corporation, entity or business organization and he shall use his
best efforts to prevent the publication or disclosure of, any confidential or
proprietary information concerning the business, accounts or finances of, or any
of the methods of doing business used by the Company or of the dealings,
transactions or affairs of the Company or any of its customers which have or
which may have come to his knowledge during his employment with the Company, but
this Section 10 shall not prevent Executive from responding to any subpoena,
court order or threat of other legal duress, provided Executive notifies the
Company thereof with reasonable promptness so that the Company may seek a
protective order or other appropriate relief.
11. Delivery of Materials. Executive agrees that upon the
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termination of his employment he will deliver to the Company all documents,
papers, materials and other property of the Company relating to its affairs,
which may then be in his possession or under his control.
12. Non-Interference. Executive agrees that he will not, while in
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the employ of the Company and for a period of two (2) years following the
effective date of the termination of his employment with the Company, unless
such termination results from a change in control of the Company (as defined in
Section 1(b) hereof), solicit the employment of any employee of the Company on
behalf of any other person, firm, corporation, entity or business organization,
or otherwise interfere with the employment relationship between any employee or
officer of the Company and the Company.
13. Remedies of the Company. Executive agrees that, in the event of
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a material breach by Executive of this Agreement, in addition to any other
rights that the Company may have pursuant to this Agreement, the Company shall
be entitled, if it so elects, to institute and prosecute proceedings at law or
in equity to obtain damages with respect to such breach or to enforce the
specific performance of this Agreement by Executive or to
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enjoin Executive from engaging in any activity in violation hereof. Executive
agrees that because Executive's services to the Company are of such a unique and
extraordinary character, a suit at law may be an inadequate remedy with respect
to a breach by Executive of Sections 9, 10, 11 and 12 hereof, and that upon any
such breach or threatened breach by him of such Sections the Company shall be
entitled, in addition to any other lawful remedies that may be available to it,
to injunctive relief.
14. Notices. All notices to be given hereunder shall be deemed duly
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given when delivered personally in writing or mailed, certified mail, return
receipt requested, postage prepaid and addressed, as follows:
(a) If to be given to the Company:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Chairman of the Board
with a copy similarly addressed
and marked to the attention of
the Legal Department
(b) If to be given to Executive:
Xx. Xxxx X. Xxxxxx
00000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
or to such other address as a party may request by notice given in accordance
with this Section 14.
15. Miscellaneous. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and replaces and
supersedes as of the date hereof any and all prior agreements and understandings
with respect to Executive's employment by the Company, whether oral or written,
between the parties hereto, including, without limitation, except to the extent
provided in Section 4(c) hereof, the Existing Agreement. This Agreement may not
be changed nor may nay provision hereof be waived except by an instrument in
writing duly signed by the party to be charged. This Agreement shall be
interpreted, governed and controlled by the law of the State of Colorado,
without reference to principles of conflict of laws.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
TELE-COMMUNICATIONS, INC.
By:/s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Authorized Officer
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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AMENDMENT TO EMPLOYMENT AGREEMENT
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This Amendment to Employment Agreement (this "Amendment"), effective
as of March 9, 1999, is between Liberty Media Corporation, a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxx ("Executive").
Recitals
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Executive and Tele-Communications, Inc. ("TCI") are parties to a
Restated and Amended Employment Agreement (the "Employment Agreement") dated as
of November 1, 1992, setting forth various terms applicable to Executive's
employment by TCI. A copy of the Employment Agreement is attached as Appendix A
to this Amendment. In connection with the acquisition of TCI by AT&T Corp. on
March 9, 1999, the Company assumed the obligations of TCI under the Employment
Agreement.
The Company and Executive desire to amend the Employment Agreement in
various respects.
Agreement
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In consideration of the mutual covenants set forth in this Amendment
and the Employment Agreement, the parties, intending to be legally bound, agree
as follows:
1. Definitions. As used in this Amendment, all terms with initial
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capital letters that are not defined in this Amendment will have the meaning
ascribed to them in the Employment Agreement.
2. Services to be Rendered by Executive. The first sentence of
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Section 2 of the Employment Agreement is amended in its entirety to read as
follows:
"Executive agrees to serve the Company as the Chairman of the
Company's Board of Directors."
3. Time to be Devoted by Executive. Section 3 of the Employment
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Agreement is amended in its entirety to read as follows:
"Executive will use his best efforts to promote the interests of the
Company and will devote such of his business time, attention, efforts
and abilities as reasonably may be required to perform the duties
contemplated hereby."
4. Compensation Payable to Executive. The first sentence of
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Section 4(a) of the Employment Agreement is amended in its entirety to read as
follows:
"Effective as of March 1, 1999, and thereafter during the Employment
Term, the Company will pay to Executive a salary at the rate of $2,600
per annum."
5. Executive Benefit Plans; Use of Company Aircraft.
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(a) The first sentence of Section 7(b) of the Employment
Agreement is amended by changing the reference in that sentence to "$35,000 per
year" to "$200,000 per year."
(b) The following will be added as subsection (c) to Section 7
of the Employment Agreement:
"(c) The Company will pay, or will reimburse Executive for, all fees
and other costs for professional services reasonably incurred by
Executive in obtaining estate or tax planning advice or services, up
to a maximum amount of $50,000 per year."
6. Notices. The address for notices to Executive set forth in
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Section 14 of the Employment Agreement is amended to read as follows:
Xx. Xxxx X. Xxxxxx
00000 Xxxx Xxxxx
Xxxxxx, XX 00000
This Agreement has been signed on June 30, 1999, but will be effective
as of the date first written above.
LIBERTY MEDIA CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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