Exhibit
4.6


 


Execution
Version


 


NONCOMPETITION AND NONSOLICITATION AGREEMENT


 


THIS NONCOMPETITION AND NONSOLICITATION AGREEMENT
(this “Agreement”) by and between Liberty Media Corporation, a Delaware
corporation (“Liberty”), and Mark L. Schneider (“Executive”),
dated as of December 19, 2003.


 


W I T N E S S E T H:


 


WHEREAS, Executive is currently employed as an
executive of UnitedGlobalCom, Inc., a Delaware corporation (“United”),
and/or one or more of its subsidiaries; and


 


WHEREAS, pursuant to the terms and subject to the
conditions of a Share Exchange Agreement between Liberty and certain
stockholders of United, dated August 18, 2003 (together with any
amendments or modifications thereto, the “Share Exchange Agreement”),
Liberty is acquiring all of the outstanding shares of Class B common stock, par
value $0.01 per share, of United in exchange (the “Exchange”) for shares
of Series A common stock, par value $0.01 per share, of Liberty (“Liberty A
Stock”) and cash as set forth therein; and


 


WHEREAS, Liberty desires that Executive be bound by
certain noncompetition, noncompetition and confidentiality covenants as set
forth herein in connection with the consummation of the transactions
contemplated by the Share Exchange Agreement, including the Exchange (the “Closing”);
and


 


WHEREAS, in consideration of the noncompetition,
nonsolicitation and confidentiality agreements of the Executive set forth
herein, Liberty desires to issue and deliver to Executive shares of Liberty A
Stock as set forth herein at, and subject to the consummation of, the Closing;
and


 


WHEREAS, the Company and Executive desire to enter
into this Agreement upon the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:


 


1.                                       Noncompetition
and Nonsolicitation.  During the
Noncompetition Period (as defined below), except for the performance of
Executive’s duties as an employee of United or any of its subsidiaries,
Executive shall not, without the consent of Liberty, (a) Participate In (as
defined below) any entity or organization in the business of providing
broadband communications services (which term shall include, without
limitation, any one or more of video programming and/or distribution,
interactive television, telephone and Internet access services) in competition
with Liberty or any of its subsidiaries in the respective specific geographic
areas outside the United States where Liberty or its subsidiaries conduct such
businesses (but


 


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excluding any specific geographic areas in which
Liberty and its subsidiaries first conduct such business after the date of
termination of Executive’s employment) (“Restricted Business”) or (b)
directly or indirectly solicit or interfere with, or endeavor to entice away
from Liberty or its subsidiaries any of their respective suppliers, customers
or employees.  The employment by
Executive or a business that Executive Participates In of a person employed or
formerly employed by Liberty shall not be prohibited by the foregoing provision
if such person sought out employment on his own initiative without initial
encouragement, direct or indirect, by Executive.  As used herein, the term “Participate In” shall mean to
directly or indirectly, for Executive’s own benefit or for, with or through any
other person, entity or organization, own, manage, operate, or participate in
the ownership, management, operation or control of, or be connected as a
director, officer, employee, partner, member, consultant, advisor, agent,
independent contractor, creditor, guarantor, financial backer, stockholder,
investor or otherwise with, or acquiesce in the use of Executive’s name
in.  Notwithstanding the foregoing,
Executive shall not be deemed to Participate In a Restricted Business merely
because Executive (i) owns not more than 10% of the outstanding equity of an
entity, or (ii) Participates In (but only as an employee, consultant, advisor,
agent or independent contractor) the business of an entity or organization that
is not related directly or indirectly to the Restricted Business of such entity
or organization.  As used herein, the
term “Noncompetition Period” means the period during which Executive is
employed by United and/or its subsidiaries and twenty-four months after the
date that Executive ceases to be employed by any of United or any of its
subsidiaries, provided that the Noncompetition Period will in any event
terminate on the fifth anniversary of the date of the Closing.  The termination of the Noncompetition Period
under this Agreement shall not be construed to result in a termination of, or
otherwise affect or limit Executive’s obligations or Liberty’s or any of its
subsidiaries’ rights under, any other agreement, including, without limitation,
any other noncompetition agreement, between Executive and Liberty or any
Liberty subsidiary.


 


2.                                       Confidential
Information.  Executive agrees at
all times during the Noncompetition Period and thereafter to hold in strictest
confidence, and not to use, except for the exclusive benefit of Liberty or its
subsidiaries, or to disclose to any person or entity without written
authorization of the Board of Directors of Liberty, any Confidential
Information.  Liberty and Executive
agree and acknowledge that these provisions regarding Confidential Information
are not contingent on Executive’s continued employment with Liberty, United or
any of their respective subsidiaries.  “Confidential
Information” means any Liberty or subsidiary (including United and its
subsidiaries) proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans, products,
services, customer lists and customers, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances or other business
information disclosed to Executive by Liberty or a subsidiary either directly
or indirectly in writing or orally. 
Confidential Information does not include any of the foregoing items
that has become publicly known and made generally available through no wrongful
act of Executive or of others who were under confidentiality obligations as to
such matter.


 


3.                                       Issuance
of Liberty Stock.  In consideration
of the noncompetition, nonsolicitation and confidentiality covenants made by
Executive in this Agreement, Liberty shall issue at the Closing 228,750 shares
of Liberty Stock to Executive (the “Noncompetition Payment”).  Liberty’s obligation to make the
Noncompetition Payment at the Closing is conditioned upon (a)


 


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the consummation of the Closing and (b) the
Executive’s compliance with the terms of this Agreement prior to the Closing.


 


4.                                       Provisions
Reasonable; Remedies. Executive agrees that the provisions set forth in
this Agreement are necessary and reasonable to protect Liberty in the conduct
of its business.  If Executive threatens
to commit or commits a material breach of any of such provisions, Liberty shall
be entitled to have such provisions specifically enforced by any court having
equity jurisdiction as well as any other legal remedies, specifically including
(a) if the breach or threatened breach occurs while Executive is employed by
any of United or any of its subsidiaries, repayment by Executive to Liberty of
all of the Noncompetition Payment, or (b) if the breach or threatened breach
occurs following such time that Executive ceases to be employed by any of
United or any of its subsidiaries, repayment by Executive to Liberty of a pro
rata portion of the Noncompetition Payment determined by multiplying the
Noncompetition Payment by a fraction, the numerator of which is the number of
months remaining in the Noncompetition Period from the date of such breach or
threatened breach and the denominator of which is 24; provided that, in
lieu of returning such pro rata portion of the Noncompetition Payment,
Executive may make to Liberty a cash payment equal to the per share closing
price of Liberty A Stock on the date of the Closing multiplied by the number of
shares represented by the Noncompetition Payment that would be required to be
repaid to Liberty pursuant to this Section 4.  In the event of any breach or threatened breach is alleged by
Liberty to have occurred, Liberty shall not require the Executive to return a
pro rata portion of the Noncompetition Payment until (x) Executive has received
notice from Liberty specifying in reasonable detail the action that is alleged
to constitute such breach or threatened breach and (y) Executive shall have
failed for 30 days after such notice to correct such alleged breach or
threatened breach.  Executive
acknowledges and agrees that the time, geographic area and scope limitations of
Executive’s obligations under this Agreement are reasonable and do not impose a
greater restraint than is necessary to protect the good will or other business
interests of Liberty.  Executive further
acknowledges that he will not be precluded from gainful employment if Executive
is obligated not to Participate In Restricted Businesses as set forth herein.
The covenants contained in Section 1 above shall be construed as a series
of separate covenants, one for each geographic area.  Except for geographic coverage, each such separate covenant shall
be deemed identical in terms to the covenant contained in Section 1
above.  If, in any judicial proceeding,
a court refuses to enforce any of such separate covenants (or any part
thereof), then such unenforceable covenant (or such part) shall be eliminated
from this Agreement to the extent necessary to permit the remaining separate
covenants (or portions thereof) to be enforced.  If any restriction contained in Section 1 above shall be
deemed to be invalid, illegal or unenforceable by reason of the extent,
duration, geographical scope or other provision hereof, then the extent,
duration, geographical scope or other provision hereof as applicable shall be
deemed to be reduced so that, in its reduced form such restriction shall then
be enforceable in the manner contemplated hereby.


 


5.                                       Representations
and Warranties of Executive.


 


(a)                                  Executive
has all requisite legal capacity to execute and deliver this Agreement and to
perform his or her obligations hereunder and thereunder.  All action required on Executive’s part for
the execution and delivery of this Agreement have been effectively taken.  This Agreement has been duly executed and
delivered by Executive.  This Agreement
is the legal, valid and binding obligation of Executive enforceable in 


 


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accordance with
its terms, except to the extent that general principles of equity restrict the
availability of equitable remedies.


 


(b)                                 Executive
understands that the Liberty A Stock being issued pursuant to this Agreement
has not been registered under the Securities Act or under any securities law of
any state or other jurisdiction. 
Executive also understands that the Liberty A Stock is being offered and
sold pursuant to an exemption from registration based in part on such
Executive’s representations contained in this Agreement.


 


(c)                                  Executive
has substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to Liberty and is capable of
evaluating the merits and risks of its investment in Liberty.  Executive understands that he or she must
bear the economic risk of this investment indefinitely unless the Liberty
Shares are registered pursuant to the Securities Act of 1933, as amended (the “Securities
Act”), or an exemption from registration is available, and that Liberty has
no present intention of registering such shares of Liberty Stock, except as
provided in the Registration Rights Agreement, dated December 19, 2003,
among Liberty and certain other persons and entities (the “Registration
Rights Agreement”).  Executive also
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow Executive to transfer all or any portion of the shares
of Liberty A Stock under the circumstances, in the amounts or at the times
Executive might propose.


 


(d)                                 Executive
is acquiring shares of Liberty A Stock for his or her own account for
investment only, and not with a view towards their distribution.


 


(e)                                  By
reason of Executive’s business or financial experience, Executive has the
capacity to protect his or her own interests in connection with the
transactions contemplated by this Agreement.


 


(f)                                    Executive
has had an opportunity to discuss Liberty’s business, management and financial
affairs with Liberty’s management, and has had the opportunity to ask questions
of and receive answers from Liberty and its management regarding the terms and
conditions of this investment.


 


(g)                                 Executive
is familiar with Regulation D promulgated under the Securities Act and has
concluded in consultation with legal counsel, that Executive is an “accredited
investor” as that term is defined in Rule 501(a) promulgated under the
Securities Act.  Without limiting the
generality of the foregoing, Executive: (i) has an individual net worth, or
joint net worth with Executive’s spouse, which on the date hereof exceeds
$1,000,000; and/or (ii) had an individual income in excess of $200,000 in each
of the two most recent years or joint income with Executive’s spouse in excess
of $300,000 in each of those years and has a reasonable expectation of reaching
the same income level in the current year.


 


(h)                                 Executive
is aware of the provisions of Rule 144 promulgated under the Securities Act as
in effect from time to time, which permits limited resale of shares 


 


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purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things:  the availability of
certain current public information about Liberty, the resale occurring
following the required holding period under Rule 144 and the number of shares
being sold during any three-month period not exceeding specified limitations.


 


(i)                                     Executive
acknowledges that the certificate(s) for the shares of Liberty A Stock issued
to Executive may bear restrictive legends as appropriate to comply with
applicable securities laws.


 


(j)                                     Executive
resides in the State of Colorado.


 


6.                                       Representations
and Warranties of Liberty.


 


(a)                                  Liberty
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware.


 


(b)                                 Liberty
has all requisite corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.  All action required on Liberty’s part for the execution and
delivery of this Agreement, and the performance by Liberty of its obligations
under this Agreement, have been effectively taken.  This Agreement has been duly executed and delivered by
Liberty.  This Agreement is the legal,
valid and binding obligation of Liberty enforceable in accordance with its
terms, except to the extent that general principles of equity restrict the
availability of equitable remedies.


 


(c)                                  When
issued pursuant to this Agreement, provided that this Agreement is at such time
in full force and effect, the shares of Liberty A Stock included in the
Noncompetition Payment to Executive shall be duly authorized, validly issued,
fully paid and nonassessable.


 


7.                                       Termination.  This Agreement shall terminate and the
transactions contemplated hereby shall be abandoned at any time prior to the
Closing (a) by the mutual consent of Liberty and Executive or (b) automatically
upon the termination of the Share Exchange Agreement.  In the event of termination of this Agreement, this Agreement
shall forthwith become void and there shall be no liability or obligation on
the part of the parties hereto.


 


8.                                       Successors.  This Agreement is personal to Executive and
without the prior written consent of Executive shall not be assignable by
Executive.  This Agreement shall inure
to the benefit of and be binding upon Liberty and its successors and
assigns.  Without limiting the
foregoing, if at any time after the Closing, Liberty assigns this Agreement to
any transferee of substantially all of Liberty’s interests in entities or
organizations providing broadband communications services outside the United
States, then such transferee shall succeed to all of Liberty’s rights hereunder
as fully as if it were named in lieu of Liberty herein.


 


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9.                                       Miscellaneous.


 


(a)                                  This
Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado, without reference to principles of conflict of laws.


 


(b)                                 This
Agreement may not be amended or modified otherwise than by a written instrument
executed by the parties hereto.


 


(c)                                  All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:


 


If to Executive:


 


Mark L. Schneider


4643 S. Ulster Street,
Ste 1300


Denver, Colorado 80237


 


If to Liberty:


 


Liberty Media Corporation


12300 Liberty Boulevard


Englewood, Colorado 80112


Attn: Elizabeth M.
Markowski


 


with a copy (which shall
not constitute sufficient notice) to:


 


Baker Botts L.L.P.


30 Rockefeller Plaza


New York, New York 80112


Attn: Robert W. Murray
Jr.


 


or to such other address as either party shall have
furnished to the other in writing in accordance herewith.  Notice and communications shall be effective
when actually received by the addressee.


 


(d)                                 This
Agreement and the Registration Rights Agreement constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior written or oral agreements or understandings between the parties
relating thereto.


 


(e)                                  Compliance
with the terms and provisions of this Agreement may be waived only by a written
instrument executed by each party entitled to the benefits thereof.  Executive’s or Liberty’s failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right Executive or Liberty may have hereunder, shall not be deemed
to be a waiver of such provision or right or any other provision or right of
this Agreement.


 


(f)                                    The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or 


 


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construction of
any provision of this Agreement.  This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


(g)                                 Each
party will submit to the non-exclusive jurisdiction of any federal or state
court located in the State of Colorado having subject matter jurisdiction in
the event of any dispute arising out of this Agreement. Each party hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in any such federal or state court located in
the State of Colorado and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient
forum.


 


(h)                                 EACH
PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.


 


	
   

  	
  LIBERTY MEDIA CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth M. Markowski

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth M. Markowski

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/ Mark L.
  Schneider

  
	
   

  	
  Name:  Mark
  L. Schneider

  	
   

  
						



 


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SCHEDULE OF
SUBSTANTIALLY IDENTICAL AGREEMENTS


 


Four executives (each an “Executive”) of
UnitedGlobalCom, Inc. entered into substantially identical Noncompetition and
Nonsolicitation Agreements, dated as of December 19, 2003, between such
named Executive and Liberty Media Corporation. 
The terms of such agreements vary with respect to the Executive party to
the agreement and the number of shares of “Liberty Stock” to be issued as the
“Noncompetition Payment” to such Executive under Section 3 of the
applicable agreement.  The table below
sets forth the name of each Executive, other than Mark L. Schneider, who is the
Executive named in the agreement filed with this Exhibit 4.6, and the number of
shares of Liberty Stock to be issued to such Executive under his or her
Noncompetition and Nonsolicitation Agreement.


 


	
  Name of Executive

  	
   

  	
  Number of shares of “Liberty Stock” to

  be issued as “Noncompetition Payment”

  
	
  Michael T. Fries

  	
   

  	
  228,750

  
	
  Ellen P. Spangler

  	
   

  	
  134,935

  
	
  Tina M.Wildes

  	
   

  	
  134,934