EXHIBIT 10.23
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") is dated as of January
1, 2004, 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 Incentive Plan Committee
of the Board (the "Committee") has determined that it would be in the interest
of the Company and its stockholders to award to the Executive the benefits
provided herein to provide the Executive with additional remuneration for
services rendered, to encourage the Executive to remain in the employ of the
Company or its Affiliates and to increase the Executive's personal interest in
the continued success and progress of the Company and its Affiliates.
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:
"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.
"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.
"Account" means the account established and maintained by the Company for
the Executive pursuant to Section 2 of this Agreement.
"Committee" has the meaning specified in the recitals to this Agreement.
"Company" has the meaning specified in the preamble to this Agreement.
"Deferred Amount" means U.S. $50,000 per annum.
"Determination Date" means the last day of the calendar year in which the
Termination Date occurs.
"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.
"Person" means a human being or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
"Termination Date" means the date on which the Executive ceases to be a
"covered employee" within the meaning of Section 162(m) of the Internal Revenue
Code of 1986, as amended.
2. ACCOUNT. The Company will establish and maintain, in the name of the
Executive, an account (the "Account") to which the Company will credit (i) the
Deferred Amount in quarterly installments of U.S. $12,500 at the end of each
calendar quarter beginning on March 31, 2004 and continuing until the date
specified in Section 3, and (ii) the Investment Return for each calendar
quarter. 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. TERMINATION. No installments of the Deferred Amount will be credited to
the Account subsequent to the Termination Date, but the Executive will be
entitled to a credit for a partial installment for the period from the most
recent calendar quarter-end preceding the Termination Date to the Termination
Date. In any event, the Investment Return will be credited to the Account
through the Determination Date. Within 30 days following the Determination Date,
the Company will deliver to the Executive cash equal to the balance in the
Account as of the Determination Date, 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.
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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 benefit hereunder or 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
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
Facsimile: 720-875-5382
If to Executive:
Xxxxxx X. Xxxxxxx
xxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxx
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.
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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.
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. 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.
14. 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.
15. 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 only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision of this
Agreement.
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16. 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:
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Xxxxxxx X. Xxxxxx
Senior Vice President
ACCEPTED:
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Xxxxxx X. Xxxxxxx
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