Exhibit 10.5


 


REGISTRATION
RIGHTS AGREEMENT (TREE.COM)


 


REGISTRATION RIGHTS
AGREEMENT (this “Agreement”), dated as of August 20,
2008, is entered into by and among LIBERTY MEDIA CORPORATION, a Delaware
corporation (“Liberty”), the
LIBERTY PARTIES (as defined below) and TREE.COM, INC., a Delaware corporation
(the “Issuer”).


 


RECITALS:


 


WHEREAS, Liberty, IAC
(as defined below) and the other parties named therein have entered into the
Settlement Agreement (as defined below), pursuant to which, among other things,
IAC  has agreed to cause the Issuer to
enter into this Agreement in connection with the Single-Tier Spinoff (as
defined in the Settlement Agreement) of the Issuer; and


 


WHEREAS, IAC,  Liberty USA Holdings, LLC, a Delaware limited
liability company, and Liberty have entered into that certain Affiliate and
Assignment Agreement, dated as of August 20, 2008, pursuant to which
Liberty Sub assumed all of the rights, benefits, liabilities and obligations of
each Liberty Party (as defined in the Settlement Agreement) signatory to the
Spinco Agreement under the Settlement Agreement other than Liberty.


 


NOW, THEREFORE in
consideration of the mutual promises and covenants set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


ARTICLE I




DEFINITIONS


 


Section 1.01.  Certain Defined Terms. 
As used in the Agreement, the following terms shall have the meanings set forth below:


 


“1933 Act”
means the Securities Act of 1933, as amended, or any similar successor federal
statute and the rules and regulations promulgated thereunder, as the same
shall be in effect from time to time.


 


“1934 Act” means
the Securities Exchange Act of 1934, as amended, or any similar successor
federal statute and the rules and regulations promulgated thereunder, as
the same shall be in effect from time to time.


 


“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such first Person.  For purposes of this definition, the term
“control” (including its correlative meanings, the terms “controlling”,
“controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by 


 

















 


contract or otherwise.  For
purposes of this definition, (i) natural persons shall not be deemed to be
Affiliates of each other, (ii) none of IAC, Barry Diller or any of their
respective Affiliates shall be deemed to be an Affiliate of Liberty, any
Liberty Party or any of their respective Affiliates and (iii) none of the
Spincos shall be deemed to be an Affiliate of Liberty, any Liberty Party or any
of their respective Affiliates.


 


“ASRS” means an
“automatic shelf registration statement” as defined in Rule 405
promulgated under the 1933 Act.


 


“ASRS Eligible”
means the Issuer meets or is deemed to meet the eligibility requirements to
file an ASRS as set forth in General Instruction I.D. to Form S-3.


 


“beneficially own”
has the meaning set forth in Rule 13d-3 under the 1934 Act, as such Rule is
in effect on the date hereof.


 


“Blackout Notice”
has the meaning set forth in Section 2.05(a).


 


“Blackout Period”
has the meaning set forth in Section 2.05(a).


 


“Board of Directors”
means the Board of Directors of the Issuer or an authorized committee thereof.


 


“Business Day”
means any day other than a Saturday, a Sunday or a day on which banks in New
York City are authorized or obligated by law or executive order to close.


 


“Common Stock”
means Common Stock, par value $.01 per shares, of the Issuer.


 


“Consolidated Action”
means the actions consolidated under the caption IN RE IAC/INTERACTIVECORP.,
C.A. No. 3468-VCL, in the Court of Chancery, New Castle County, State of
Delaware.


 


“Demand Registration
Statement” has the meaning set forth in Section 2.01.


 


“Demand Request”
has the meaning set forth in Section 2.01.


 


“Disadvantageous Condition”
has the meaning set forth in Section 2.05(a).


 


“Effective Time”
has the meaning set forth in Section 2.01.


 


“Effectiveness End Date”
has the meaning set forth in Section 2.01.


 


“Effectiveness Period”
has the meaning set forth in Section 2.01.


 


“Free Writing Prospectus”
means each “free writing prospectus” within the meaning of Rule 405
promulgated under the 1933 Act.


 


“Hedging Counterparty”
means a broker-dealer registered under Section 15(b) of the 1934 Act
or an Affiliate thereof or any other financial institution that routinely
engages in Hedging Transactions in the
ordinary course of its business.


 


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“Hedging Transaction”
means any transaction involving a security linked to the Registrable Shares or
any security that would be deemed to be a “derivative security” (as defined in Rule 16a-1(c) under
the 1934 Act) with respect to the Registrable Shares or any transaction (even
if not a security) which would (were it a security) be considered such a
derivative security, or which transfers some or all of the economic risk of
ownership of the Registrable Shares, including any forward contract, equity
swap, put or call, put or call equivalent position, collar, non-recourse loan,
sale of exchangeable security or similar transaction.  For the avoidance of doubt, the following
transactions shall be deemed to be Hedging Transactions:


 


(a)      transactions by a Holder in which a Hedging Counterparty
engages in short sales of Common Stock pursuant to a prospectus and may use
Registrable Shares to close out its short position;


 


(b)      transactions pursuant to which a Holder
sells short Common Stock pursuant to a prospectus and delivers Registrable
Shares to close out its short position;


 


(c)      transactions by a Holder in which the
Holder delivers, in a transaction exempt from registration under the 1933 Act,
Registrable Shares to a Hedging Counterparty who may then publicly resell or
otherwise transfer such Registrable Shares pursuant to a prospectus or an
exemption from registration under the 1933 Act; and


 


(d)      a loan or pledge of Registrable Shares to
a Hedging Counterparty who may then become a Permitted Transferee and sell the
loaned shares or, in an event of default in the case of a pledge, then sell the
pledged shares, in each case, in a public transaction pursuant to a prospectus.


 


“Holder” means
Liberty, each of the Liberty Parties and each Permitted Transferee, for so long
as such Person beneficially owns Registrable Shares.


 


“IAC” means
IAC/InterActiveCorp, a Delaware corporation.


 


“Indemnified Party”
has the meaning set forth in Section 4.03.


 


“Indemnifying Party”
has the meaning set forth in Section 4.03.


 


“Inspectors” has
the meaning set forth in Section 3.01(j).


 


“Lead Holder”
means, until such time as the Liberty Parties effect a Permitted Restricted
Transfer, Liberty, and, thereafter, shall mean the Restricted Transferee in
such Permitted Restricted Transfer.


 


“Liability” has
the meaning set forth in Section 4.01.


 


“Liberty
Parties” means Liberty USA Holdings, LLC, a Delaware limited
liability company (and any successor or assign or acquirer of a Liberty Party
(whether by merger, consolidation, sale of assets or otherwise) provided that such Liberty Party shall have caused such
successor, assign or acquirer to enter into an agreement, in writing in form
and substance 


 


3

















 


reasonably satisfactory to the Issuer, to be bound by the terms and
provisions of this Agreement as a condition of any such transaction.


 


“Litigation” has
the meaning set forth in Section 6.12.


 


“Lock-up Agreements”
has the meaning set forth in Article IV.


 


“Market Value”
of a share of Common Stock on any Trading Day means the last reported sale
price, regular way, of a share of such stock on such Trading Day or, in case
there is no last reported sale price on such Trading Day, the average of the
reported closing bid and asked prices regular way of a share of such stock on
such Trading Day, in either case on the principal stock exchange on which
shares of such stock are traded.  The
Market Value of a share of Common Stock on any day which is not a Trading Day
shall be deemed to be the Market Value of a share of Common Stock on the
immediately preceding Trading Day.


 


“Maximum Number of Shares” means, with respect to any
underwritten offering, the maximum number of shares of Common Stock (including
Registrable Shares) that the co-managing underwriters advise the Issuer can be
included in such offering without having an adverse effect on such offering,
including the price at which the shares can be sold.


 


“Offering Confidential Information” has the meaning set forth in
Section 2.10(e)(i).


 


“Original Amount”
means the number of shares of Common Stock constituting Registrable Shares on
the date hereof (as such number shall be appropriately adjusted to give effect
to any of the events described in Section 6.01).


 


“Other Shares”
means shares of Common Stock, other than Spinoff Shares, acquired by the
Liberty Parties consistent with the Spinco Agreement, including such shares as
may be transferred to a Holder which transfer is, at the time of such transfer,
permitted by the Spinco Agreement.


 


“Other Shareholders” means holders of Common
Stock that have obtained registration rights from the Issuer (other than the
Holders).


 


“Permitted Restricted
Transfer” has the meaning given such term in the Spinco Agreement.


 


“Permitted Transferee” has the meaning set forth in
Section 2.09.


 


“Person” means
any individual, partnership, joint venture, corporation, limited liability
company, trust, unincorporated organization, government or department or agency
of a government.


 


“Piggyback Notice”
has the meaning set forth in Section 2.10.


 


“Piggyback Registration”
has the meaning set forth in Section 2.10.


 


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“prospectus”
means the prospectus related to any Registration Statement (including a
prospectus that discloses information previously omitted from a prospectus
filed as part of an effective Registration Statement in reliance on Rule 415),
as amended or supplemented by any amendment (including post-effective
amendments), pricing term sheet, Free Writing Prospectus or prospectus
supplement, and all documents and materials incorporated by reference in such
prospectus.


 


“Records” has
the meaning set forth in Section 3.01(j).


 


“Registrable Shares”
means, at any time, the Spinoff Shares and the Other Shares that are
beneficially owned by any of the Holders; provided
that any particular shares will cease to be Registrable Shares: (i) if and
when such shares shall have been disposed of pursuant to an effective
Registration Statement; (ii) if and when such shares shall have been sold
pursuant to Rule 144 under the 1933 Act; (iii) if and when such
shares shall have been otherwise transferred and new certificates for them not
bearing a legend or instructions restricting further transfer shall have been
delivered; and (iv) if and when such shares shall have ceased to be
outstanding (for the avoidance of doubt, any shares held in the treasury of the
Issuer or by a subsidiary of the Issuer shall not be considered
outstanding).  Spinoff Shares and Other
Shares which are Registrable Shares shall also cease to be Registrable Shares
if and when such shares may be disposed of by the holder thereof without volume,
holding period or manner of sale restrictions.


 


“Registration Expenses”
means the following expenses incurred in connection with any registration of
Registrable Shares or, in the case of a Hedging Counterparty, if applicable,
other shares of Common Stock, pursuant to this Agreement: (i) the fees,
disbursements and expenses of the Issuer’s counsel and accountants; (ii) all
filing fees in connection with the filing of any Registration Statement, any
prospectus, any other offering documents and any amendments and supplements
thereto; (iii) all expenses in connection with the qualification of the
Registrable Shares or other shares of Common Stock to be disposed of for
offering and sale or distribution under state securities laws (other than those
contemplated in clause (C) to the proviso below); (iv) the filing
fees incident to securing any required review by the Financial Industry
Regulatory Authority of the terms of the sale or distribution of the
Registrable Shares or other shares of Common Stock to be disposed of; (v) all
security engraving and security printing expenses; and (vi) all expenses
in connection with the listing of the Registrable Shares on the principal stock
exchange on which other shares of Common Stock are listed; provided, however,
that the term “Registration Expenses” shall not include (A) the fees,
disbursements and expenses of Special Counsel or any other counsel for the
Holders; (B) all expenses incurred in connection with the printing,
mailing and delivering of copies of any Registration Statement, any prospectus,
any other offering documents and any amendments and supplements thereto to any
underwriters and dealers; (C) the cost of preparing, printing or producing
any agreements among underwriters, underwriting agreements, and blue sky or
legal investment memoranda, any selling agreements and any other similar
documents in connection with the offering, sale, distribution or delivery of
the Registrable Shares or other shares of Common Stock to be disposed of,
including any fees of counsel for any underwriters in connection with the
qualification of the Registrable Shares or other shares of Common Stock to be
disposed of for offering and sale or distribution under state securities laws; (D) any
broker’s commissions or underwriter’s discount, fee or commission relating to
the sale of Registrable Shares or other shares of Common Stock and any other
fees 


 


5

















 


and disbursements of underwriters; and (E) costs and expenses of
the Issuer relating to analyst or investor presentations.


 


“Registration Statement”
means a Demand Registration Statement or a Section 2.10 Registration
Statement, as the context requires.


 


“Restricted Transferee”
has the meaning given such term in the Spinco Agreement.


 


“Rule 144”
means Rule 144 as promulgated by the SEC under the 1933 Act, as such Rule may
be amended from time to time, or any similar successor rule promulgated by
the SEC.


 


“Rule 405”
means Rule 405 as promulgated by the SEC under the 1933 Act, as such Rule may
be amended from time to time, or any similar successor rule promulgated by
the SEC


 


“Rule 415”
means Rule 415 as promulgated by the SEC under the 1933 Act, as such Rule may
be amended from time to time, or any similar successor rule promulgated by
the SEC.


 


“S-3 Eligible”
means the Issuer meets or is deemed to meet the eligibility requirements to
file on Form S-3 as set forth in General Instruction I.A. to Form S-3.


 


“SEC” means the
Securities and Exchange Commission.


 


“Section 2.10
Registration Statement” has the meaning set forth in Section 2.10.


 


“Settlement Agreement”
means the Agreement, dated as of May 13, 2008, among Liberty, the Liberty
Parties and IAC entered into in connection with the settlement of the
Consolidated Action.


 


“Special Counsel”
means Baker Botts LLP, or such other law firm of national reputation as may be
selected by the Lead Holder (or any other Holder who (together with its
Affiliates), at the time of such selection, beneficially owns the highest
percentage of the  Registrable Shares)
and notified in writing to the Issuer.


 


“Spinco Agreement”
means the Settlement Agreement, as assumed by and assigned to the Issuer
pursuant to Section 9(b) thereof.


 


“Spinoff Shares”
means the shares of Common Stock issued to the Liberty Parties as a result of
the Single-Tier Spinoff (as defined in the Spinco Agreement) of the Issuer,
including such shares as may be transferred to a Holder which transfer is, at
the time of such transfer, permitted by the Spinco Agreement.


 


“Total Registrable Amount”
means the Original Amount on the date hereof plus the number of Other Shares
acquired after the date hereof, in each case appropriately adjusted, but only
with respect to the number of Registrable Shares on the date of such event, to
give effect to any of the events described in Section 6.01.


 


“Trading Day”
means a day on which shares of the Common Stock are traded on the principal
United States securities exchange on which such shares are listed.


 


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ARTICLE II




REGISTRATION RIGHTS


 


Section 2.01. 
Registration Upon Demand. 
At any time after the date hereof and for so long as there are any
Registrable Shares, upon the written request of the Lead Holder acting on
behalf of Holders holding an amount of Registrable Shares equal to at least ten
percent (10%) of the Original Amount (a “Demand Request”),
the Issuer shall prepare a registration statement (a “Demand
Registration Statement”) on (i) if the Issuer is then S-3
Eligible, a Form S-3 or (ii) if the Issuer is not then S-3 Eligible,
any other appropriate form under the 1933 Act, for the type of offering
contemplated by the Demand Request (which may include an offering to be made on
a delayed or continuous basis under Rule 415); provided,
that the aggregate offering price applicable to any Demand Registration
Statement so requested to be filed shall not be less than $75 million
(determined by multiplying the number of Registrable Shares to be included in
such Demand Registration Statement by the Market Value on the day on which such
Demand Request is received by the Issuer). 
The Demand Request shall specify, for each Holder, the number of
Registrable Shares to be included in such Demand Registration Statement for
such Holder’s account.  If the Issuer is
ASRS Eligible at the time any Demand Request is received for a shelf
registration statement, the Issuer shall use commercially reasonable efforts to
cause the Demand Registration Statement to be an ASRS.  Subject to Section 2.05, the Issuer
shall use its commercially reasonable efforts to cause the Demand Registration
Statement (i) to be filed with the SEC as promptly as reasonably
practicable following the receipt of the Demand Request, (ii) to become
effective as promptly as reasonably practicable after filing, and (iii) to
remain continuously effective during the time period (the “Effectiveness
Period”) commencing on the date such Demand Registration Statement
is declared effective (the “Effective Time”)
and ending on (A) the date that there are no longer any Registrable Shares
covered by such Demand Registration Statement or (B) if earlier, the 30th
day (90th day if the Demand Registration Statement is on Form S-3) after
the Demand Registration Statement is initially declared effective (the ending
date specified in this clause (iii), the “Effectiveness End Date”).  No more than three (3) Demand Requests
may be made.  In no event shall the
Issuer be required to include a Holder’s Registrable Shares in a Demand
Registration Statement if such Holder included in any Section 2.10
Registration Statement declared effective within the 60 calendar days preceding
the Demand Request relating to such Demand Registration Statement all of the
Registrable Shares such Holder sought to be included in such Section 2.10
Registration Statement, and such 2.10 Registration Statement remained effective
until at least the Effectiveness End Date thereof (or is then still effective)
(substituting for this purpose only the term “2.10 Registration Statement” for
“Demand Registration Statement” in the definition of Effectiveness End Date).


 


Section 2.02. 
Revocation of Demand Request. 
Any Demand Request may be revoked by notice from the Lead Holder to the
Issuer prior to the effective date of the corresponding Demand Registration
Statement; provided, that such revoked Demand
Request shall count as one of the three Demand Requests referred to in the last
sentence of Section 2.01 unless the Issuer as promptly as reasonably
practicable is reimbursed for all out-of-pocket expenses (including fees of outside
counsel and accountants and other Registration Expenses) incurred by the Issuer
relating to the registration requested pursuant to such revoked Demand
Request.  A Demand Request may not be
made for a minimum of 90 calendar days after the revocation of an earlier
Demand Request.


 


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Section 2.03. 
Selection of Underwriters and Underwriter’s Counsel.  The Holders may effect one or more
underwritten public offerings with respect to the Registrable Shares included
in a Demand Registration Statement; provided, that
no underwritten public offering shall be effected in which the gross proceeds
to the selling Holders are not expected to exceed $75 million.  The Holder(s) effecting any such public
offering, acting through the Lead Holder, and the Issuer shall mutually select
the managing underwriter or co-managing underwriters for such public
offering.  The Issuer shall be entitled
to designate counsel for such underwriter or underwriters, provided
that such designated underwriters’ counsel shall be a firm of national
reputation representing underwriters in capital markets transactions.


 


Section 2.04. 
Registration In Connection With Hedging Transactions.


 


(a)      The Issuer acknowledges that from time to
time a Holder may seek to enter into one or more Hedging Transactions with a
Hedging Counterparty.  The Issuer agrees
that, in connection with any proposed Hedging Transaction then permitted by the
Spinco Agreement, if, in the reasonable judgment of counsel to such Holder
(after good faith consultation with counsel to the Issuer), it is necessary or
desirable to register under the 1933 Act sales or transfers (whether short or
long and whether by the Holder or by the Hedging Counterparty) of Registrable
Shares or (by the Hedging Counterparty) other shares of Common Stock in
connection therewith, then a Registration Statement covering Registrable Shares
or such other shares of Common Stock may be used in a manner otherwise in
accordance with the terms and conditions of this Agreement to register such
such sales or transfers under the 1933 Act. 
Notwithstanding anything in this Agreement to the contrary, the Issuer
shall not be required to register, and shall not be required to pay Registration
Expenses in connection with the registration of, an aggregate number of sales
or transfers of Registrable Shares or other shares of Common Stock in excess of
the Total Registrable Amount, it being understood that a sale or transfer of a
Registrable Share or other share of Common Stock shall be considered to have
been registered for purposes of this Section 2.04 and Section 6.15
when (1) a Registration Statement covering such Registrable Share or other
share of Common Stock shall have been declared effective or, following a
request pursuant to Section 2.04(b), an effective shelf Registration
Statement is available to cover the sale or transfer of the Registrable Share
or other share of Common Stock requested to be covered and (2) in the case
of a Demand Registration Statement, such Demand Registration Statement shall
have remained effective until (A) such sale or transfer of such
Registrable Share or other Share of Common Stock shall have occurred or
(B) if earlier, the Effectiveness End Date thereof.


 


(b)      If, in the circumstances contemplated by
Section 2.04(a), a Holder seeks to register sales or transfers of
Registrable Shares (or the sale or transfer by a Hedging Counterparty of other
shares of Common Stock) in connection with a Hedging Transaction at a time when
a shelf Registration Statement covering Registrable Shares is effective, upon
receipt of written notice thereof from the Lead Holder, the Issuer shall use
commercially reasonable efforts to take such actions as may reasonably be
required to permit such sales or transfers in connection with such Hedging
Transaction to be covered by such effective Registration Statement in a manner
otherwise in accordance with the terms and conditions of this Agreement, which
may include, among other things, the filing of a prospectus supplement or
post-effective amendment including a description of such Hedging Transaction,
the name of the Hedging Counterparty, identification of the Hedging
Counterparty or its Affiliates as 


 


8

















 


underwriters or potential
underwriters, if applicable, and any change to the plan of distribution
contained in the prospectus; provided that, in the case of a shelf Demand
Registration Statement, in no event shall the foregoing require the Issuer to
extend the Effectiveness Period of the Registration Statement beyond the
Effectiveness End Date.


 


(c)      Any information regarding a Hedging
Transaction included in a Registration Statement pursuant to this
Section 2.04 shall be deemed to be information provided by the Holder
selling or tranferring Registrable Shares or shares of Common Stock pursuant to
such Registration Statement for purposes of Article V of this Agreement.


 


(d)      If, with respect to a Hedging Transaction
in connection with which a registration is contemplated by Section 2.04(a),
a Hedging Counterparty or any Affiliate thereof is (or may be considered) an
underwriter or selling securityholder, then, as a condition to including in any
Registration Statement any sales or transfers of Registrable Shares or other
shares of Common Stock by such Hedging Counterparty in connection with such
Hedging Transaction, it and the Issuer shall be required to enter into an
agreement with the other (x) providing for indemnification rights
substantially similar to those provided under Article V and
(y) pursuant to which such Hedging Counterparty and/or Affiliate thereof,
to the extent registering shares of Common Stock that are not Registrable
Shares, agrees to be bound by the obligations applicable to a Holder hereunder
as if such other shares were Registrable Shares .


 


Section 2.05. 
Blackout Periods.


 


(a)      With respect to any Registration
Statement, or amendment or supplement thereto, whether filed or to be filed
pursuant to this Agreement, if the General Counsel of the Issuer shall determine,
in his or her good faith judgment, that to maintain the effectiveness of such
Registration Statement or file an amendment or supplement thereto (or, if no
Registration Statement has yet been filed, to file such a Registration
Statement) would (i) require the public disclosure of material non-public
information concerning any transaction or negotiations involving the Issuer or
any of its consolidated subsidiaries that would materially interfere with such
transaction or negotiations, (ii) require the public disclosure of
material non-public information concerning the Issuer at a time when its
directors and executive officers are restricted from trading in the Issuer’s
securities or (iii) otherwise materially interfere with financing plans,
acquisition activities or business activities of the Issuer (a “Disadvantageous Condition”), the Issuer may, for the
shortest period reasonably practicable (a “Blackout Period”),
and in any event for not more than 60 consecutive days, notify the Lead Holder
and the other Holders whose sales of Registrable Securities are covered (or to
be covered) by such Registration Statement (a “Blackout
Notice”) that such Registration Statement is unavailable for use (or
will not be filed as requested).  Upon
the receipt of any such Blackout Notice, the Holders shall forthwith
discontinue use of the prospectus contained in any effective Registration
Statement; provided, that, if at the time of
receipt of such Blackout Notice any Holder shall have sold its Registrable
Shares (or have signed a firm commitment underwriting agreement with respect to
the purchase of such shares) and the Disadvantageous Condition is not of a
nature that would require a post-effective amendment to the Registration
Statement, then the Issuer shall use its commercially reasonable efforts to
take such action as to eliminate any restriction imposed by federal securities
laws on the timely delivery of such shares. 
When any Disadvantageous Condition as to which a Blackout Notice has
been previously delivered 


 


9

















 


shall cease to exist, the
Issuer shall as promptly as reasonably practicable notify the Lead Holder and
such other Holders and take such actions in respect of such Registration
Statement as are otherwise required by this Agreement.  If a Blackout Period occurs during the
Effectiveness Period of any Demand Registration Statement, the Effectiveness
End Date in respect of such Registration Statement shall be extended for a number
of days equal to the total number of days during which the distribution of
Registrable Shares included in such Registration Statement was suspended under
this Section 2.05(a).  The Issuer
shall not impose, in any 360 calender day period, Blackout Periods lasting, in
the aggregate, in excess of 120 calendar days.


 


(b)      If the Issuer declares a Blackout Period
with respect to a Demand Registration Statement that has not yet been declared
effective, (i) the Lead Holder may by notice to the Issuer withdraw the
related Demand Request without such Demand Request counting against the three
Demand Requests permitted to be made under Section 2.01 and
(ii) neither the Lead Holder nor any other Holder will be responsible for
the Issuer’s related Registration Expenses.


 


Section 2.06. 
SEC Orders Suspending Effectiveness.  The Issuer shall notify the Lead Holder and
all other Holders that have Registrable Shares included in a Registration
Statement of any stop order threatened or issued by the SEC (to the extent
known to the Issuer) with respect to such Registration Statement and, as to
threatened orders, shall use commercially reasonable efforts to prevent the
entry of such stop order.  If the
effectiveness of a Registration Statement is suspended by a stop order issued
by the SEC at any time during the Effectiveness Period, the Issuer shall use
commercially reasonable efforts to obtain the prompt withdrawal of such order
and to amend the Registration Statement in a manner reasonably expected by the
Issuer to obtain the withdrawal of such order.


 


Section 2.07. 
Plan of Distribution.  The
“plan of distribution” section of each prospectus included in a Demand
Registration Statement with respect to an offering to be made on a delayed or
continuous basis under Rule 415 shall be substantially in the form of Annex A
hereto or in a form otherwise appropriate, subject to the comments of the SEC
and the inclusion of such other information as is required by applicable SEC
regulations or to conform with applicable SEC practice.  Each Holder agrees to dispose of its Registrable
Shares under a Registration Statement in accordance with the “plan of
distribution” section of the prospectus.


 


Section 2.08. 
Expenses.  Subject to
Section 2.02, the Issuer shall pay all Registration Expenses, and each
Holder shall (i) pay all other expenses incurred by it and
(ii) reimburse the Issuer for any other out-of-pocket expenses reasonably
incurred by the Issuer, in each case in connection with any registration of its
Registrable Shares pursuant to this Agreement.


 


Section 2.09. 
Transfer of Registration Rights. 
Each Holder shall have the right to transfer, by written agreement, any
or all of its rights granted under this Agreement to any direct or indirect
transferee of such Holder’s Registrable Shares (each Person to whom rights to
register shares shall have been so transferred hereunder a “Permitted Transferee”); provided,
(i) such transferee is Liberty, a Liberty Party, or an Affiliate of
Liberty or a Liberty Party, or (ii) such transferee is an “accredited
investor” as such term is defined in Rule 501 of Regulation D
promulgated under the 1933 Act, and in either such case (x) such
transferee agrees, in writing in form and substance reasonably satisfactory to
the Issuer, to be bound by the terms and provisions


 


10
















 


of this Agreement (it being specifically understood that any sale of
Registrable Shares by a Permitted Transferee shall be in accordance with the
“plan of distribution” section of the applicable prospectus); and (y) such
transfer of Registrable Shares shall be effected in accordance with applicable
securities laws, the Spinco Agreement (if the transferring Holder is a party
thereto or has agreed to be bound thereby) and any other agreements between the
Issuer and such Holder.  Following any
transfer or assignment made pursuant to this Section 2.09 in connection
with the transfer by a Holder of a portion of its Registrable Shares, such
Holder shall retain all rights under this Agreement with respect to the
remaining portion of its Registrable Shares. 
Notwithstanding the foregoing, unless Liberty and the Liberty Parties
shall have effected a Permitted Restricted Transfer to a Restricted Transferee
(in which case the Restricted Transferee shall be substituted for Liberty in
all respects hereunder as the Lead Holder), the Issuer shall have no obligation
to deliver any notices under this Agreement to or otherwise interact with any
Holder other than the Lead Holder for any purpose under this Agreement (other
than in accordance with Sections 2.05(a), 2.06, 2.10(e)(ii), 3.01(f), 3.01(h),
3.02(d), 6.01, 6.02 and 6.13 and Article V hereof.)


 


Section 2.10. 
Incidental Registration.


 


(a)      If the Issuer at any time proposes to
register the offer and sale of shares of Common Stock under the 1933 Act (other
than on Form S-8 or Form S-4 or a registration statement on
Form S-1 or Form S-3 covering solely an employee benefit or dividend
reinvestment plan) (any such registration statement covering sales or transfers
of Registrable Shares, a “Section 2.10
Registration Statement”) for its own account or for the account of
any Other Shareholders, in a manner which would permit registration of
Registrable Shares for sale to the public under the 1933 Act (a “Piggyback Registration”), the Issuer will as promptly as
reasonably practicable give written notice (a “Piggyback
Notice”) to the Lead Holder (which shall give notice to all other
Holders) of its intention to do so, but in any event at least 10 Business Days
prior to the anticipated filing date of the Section 2.10 Registration
Statement.  The Piggyback Notice shall
offer all Holders the opportunity to include in such Section 2.10
Registration Statement such number of Registrable Shares as each Holder may
request, acting through the Lead Holder, subject to Section 2.10(d); provided, however, that any Holder who has included
Registrable Shares on a Demand Registration Statement that was declared
effective within the 60 calendar days immediately preceding the receipt of such
Piggyback Notice shall not be permitted to request the inclusion of any
Registrable Shares in such Section 2.10 Registration Statement.  Subject to the proviso to the immediately
preceding sentence and to Section 2.10(d), the Issuer will use its
commercially reasonable efforts to include in the Section 2.10 Registration
Statement the number of Registrable Shares of each Holder sought to be included
therein and so specified in a written notice delivered to the Issuer by the
Lead Holder on behalf of such Holder within 5 Business Days after such Lead
Holder’s receipt of the related Piggyback Notice.  A Holder, acting through the Lead Holder,
may, at least two Business Days prior to the effective date of a
Section 2.10 Registration Statement, withdraw any Registrable Shares that it
had sought to have included therein, whereupon such Holder shall as promptly as
reasonably practicable pay to the Issuer all Registration Expenses incurred by
the Issuer in connection with the registration of such withdrawn Registrable
Shares under the 1933 Act or the 1934 Act and the inclusion of such shares in
the Section 2.10 Registration Statement.


 


11

















 


(b)      If a Piggyback Registration involves an
underwritten offering, then all Holders whose Registrable Shares are included
in the Section 2.10 Registration Statement must sell such shares in such
underwitten offering and agree to the same terms and conditions as those agreed
to by the Issuer or, if the Section 2.10 Registration Statement is for the
benefit of Other Shareholders, such Other Shareholders.


 


(c)      In connection with any Piggyback
Registration, each Holder shall notify the Issuer in writing 24 hours prior to
effecting any transaction in reliance on any Section 2.10 Registration
Statement, or amendment or supplement thereto, whether filed or to be filed
pursuant to this Agreement.  In the case
of a transaction by a Hedging Counterparty covered by such Section 2.10
Registration Statement, such notice may specify a period of time, not to exceed
five Business Days, during which such sales or transfers may be effected.  If (and only if) the Issuer does not give
such Holder or Hedging Counterparty a Blackout Notice within 24 hours of the
Issuer’s receipt of such Holder’s notice, such Holder or Hedging Counterparty
may engage in the transaction referenced in the notice in accordance with the
terms of this Agreement.


 


(d)      The Issuer may elect, in its sole
discretion, to terminate a Section 2.10 Registration Statement at any time
prior to the effective date thereof. 
Upon giving written notice of such election to the Lead Holder, the
Issuer shall be relieved of its obligation to register any Registrable Shares
(or, in the case of a Hedging Counterparty, if applicable, other shares of
Common Stock) in connection with such registration (without prejudice, however,
to the rights of Holders under Section 2.01 hereof).


 


(e)      If a Piggyback Registration involves an
underwritten offering and the co-managing underwriters advise the Issuer (and,
if applicable, the Other Shareholders) that the number of shares of Common
Stock requested to be included in the Piggyback Registration exceeds the
Maximum Number of Shares, the following rules shall apply:


 


(i)            If the Section 2.10
Registration Statement was originated by the Issuer for a primary offering,
then there will be included in such Registration Statement: (i) first, all
of the shares of Common Stock that the Issuer proposes to sell for its own
account; and (ii) second, to the extent that the number of shares of
Common Stock included by the Issuer for its own account is less than the
Maximum Number of Shares, the shares of Common Stock proposed to be included by
the Other Shareholders and the Registrable Shares (or, in the case of a Hedging Counterparty, if
applicable, other shares of Common Stock) proposed to be included by Holders (or
Hedging Counterparties ), allocated pro rata among
such Persons on the basis of the number of shares each such Person has
requested to be included in such Registration Statement (up to the Maxium
Number of Shares).


 


(ii)           If
the Section 2.10 Registration Statement was originated by Other
Shareholders for a secondary offering, then there will be included in such
Registration Statement: (i) first, all of the shares of Common Stock that
such Other Shareholders propose to sell for their own account; and (ii) second,
to the extent that the number of shares of Common Stock included by the Other
Shareholders is less than the Maximum Number of Shares, the Registrable Shares
(or, in the case of a Hedging Counterparty, if 


 


12

















 


applicable, other shares of Common
Stock) proposed to be included by Holders (or Hedging Counterparties),
allocated pro rata among such Holders on the basis
of the number of shares that each such Person has requested to be included in
such Registration Statement (up to the Maxium Number of Shares).


 


(f)            (i) 
The following shall be deemed to be “Offering Confidential
Information” in respect of a Piggyback Registration: (x) the
Issuer’s plan to file the relevant Registration Statement and engage in the
offering so registered, (y) any information regarding the offering being
registered (including, without limitation, the potential timing, price, number
of shares, underwriters or other counterparties, selling stockholders or plan of
distribution) and (z) any other information (including information
contained in draft supplements or amendments to offering materials) provided to
the Lead Holder or the Holders (or Hedging Counterparties) by the Issuer (or by
third parties) in connection with the Piggyback Registration.  Offering Confidential Information shall not
include information that (1) was or becomes generally available to the
public (including as a result of the filing of the relevant Registration
Statement) other than as a result of a disclosure by any Holder (or Hedging
Counterparty), (2) was or becomes available to any Holder (or Hedging
Counterparty) from a source not bound by any confidentiality agreement with the
Issuer or (3) was otherwise in such Holder’s (or Hedging Counterparty’s)
possession prior to it being furnished to such Holder (or Hedging Counterparty)
by the Lead Holder or by the Issuer or on the Issuer’s behalf.


 


(ii)  After a Holder
has been notified of its opportunity to include Registrable Shares in a
Piggyback Registration, such Holder (or Hedging Counterparty) shall treat the
Offering Confidential Information as confidential information and shall not use
the Offering Confidential Information for any purpose other than to evaluate
whether to include its Registrable Shares (or other shares of Common Stock) in
such Piggyback Registration and agrees not to disclose the Offering
Confidential Information to any Person other than such of its agents,
employees, advisors and counsel as have a need to know such Offering
Confidential Information and to cause such agents, employees, advisors and
counsel to comply with the requirements of this Section 2.10(e), provided, that such Holder (or Hedging Counterparty) may
disclose Offering Confidential Information if such disclosure is required by
legal process, but such Holder (or Hedging Counterparty) shall cooperate with
the Issuer to limit the extent of such disclosure through protective order or
otherwise, and to seek confidential treatment of the Offering Confidential Information.


 


ARTICLE III




REGISTRATION PROCEDURES


 


Section 3.01. 
Registration Procedures. 
In connection with any registration of Registrable Shares contemplated
by this Agreement:


 


13

















 


(a)      The Issuer shall, at least three Business
Days prior to the initial filing of the Registration Statement with the SEC,
furnish to Special Counsel a copy of such Registration Statement as proposed to
be filed (including documents to be incorporated by reference therein, to the extent
not then available via the SEC’s EDGAR system, but only to the extent they
expressly relate to any offering to be effected thereunder), which will be
subject to the reasonable review and comments of Special Counsel during such
three-Business-Day period, and the Issuer will not file the Registration
Statement (or any such documents incorporated by reference) containing any
statements with respect to any Holder or the plan of distribution to which
Special Counsel shall reasonably object in writing.  After the filing of the Registration
Statement, the Issuer will as promptly as reasonably practicable notify Special
Counsel of: (i) if the SEC has determined to not review the Registration
Statement, the effectiveness thereof; (ii) if the Registration Statement
is an ASRS, the filing thereof; or (iii) if the SEC has determined to
review the Registration Statement, such determination.  If a Registration Statement is subject to
review by the SEC: (A) the Issuer will as promptly as reasonably
practicable provide the Special Counsel with a copy of each comment letter
issued in respect of such Registration Statement and a copy of the Issuer’s
draft responses thereto (it being understood that preliminary drafts shall not
be required to be provided); (B) the Issuer shall further provide Special
Counsel with a copy of any proposed amendment to be filed with the SEC no less
than three Business Days prior to the Issuer’s proposed filing date, and each
such amendment will be subject to the reasonable review and comments of Special
Counsel during such three-Business-Day period; (C) the Issuer will not
file any such amendment containing any statements with respect to any Holder or
the plan of distribution to which Special Counsel shall reasonably object in
writing; and (D) once the Registration Statement is cleared from review,
the Issuer will as promptly as reasonably practicable inform Special Counsel of
the effectiveness thereof.


 


(b)      After the initial Effective Time of a
Registration Statement, the Issuer shall, at least two Business Days prior to
the filing of a post-effective amendment to the Registration Statement or a
prospectus (including a prospectus supplement, a Free Writing Prospectus and
any documents to be incorporated by reference in the prospectus but only to the
extent they expressly relate to an offering or a Hedging Transaction under the
Registration Statement), furnish a copy of such proposed filing to Special
Counsel (who will furnish such copy to any Hedging Counterparty (if such filing
relates to a Hedging Transaction) and any underwriter (if such filing relates
to an underwritten offering)), which will be subject to the reasonable review
and comments of Special Counsel during such two-Business-Day period, and the
Issuer will not file any such post-effective amendment or prospectus that
contains any statements with respect to any Holder, Hedging Counterparty or
underwriter or the plan of distribution to which Special Counsel (on behalf of
any Holder, any such Hedging Counterparty or any underwriter) shall reasonably
object in writing.


 


(c)      The Issuer shall as promptly as reasonably
practicable furnish to Special Counsel copies of any and all transmittal
letters and other correspondence with the SEC and all correspondence (including
comment letters, such as those contemplated by Section 3.01(a)) from the
SEC to the Issuer relating to the Registration Statement or any prospectus or
any amendment or supplement thereto.


 


14

















 


(d)      After a Registration Statement is declared
effective, and in connection with any underwritten offering or Hedging
Transaction under the Registration Statement, the Issuer will furnish to the
Lead Holder (for distribution to the Holders whose Registrable Shares are
included in such Registration Statement and to any Hedging Counterparties and
underwriters) such number of copies of the Registration Statement, each
amendment and supplement thereto (in each case including all exhibits thereto
but excluding documents (x) incorporated by reference therein other than
those that expressly relate to the offering, Hedging Transaction or
underwritten offering or (y) that are available via the SEC’s EDGAR
system), the prospectus included in such Registration Statement (including any
prospectus supplements) and such other documents as any such Holders, Hedging
Counterparties or underwriters may reasonably request through the Lead Holder
in order to facilitate the disposition of the Registrable Shares included in
the Registration Statement.


 


(e)      The Issuer will use commercially
reasonable efforts (i) to register or qualify the Registrable Shares under
such other securities or blue sky laws of such jurisdictions in the United
States (in the event an exemption is not available) as any Holder of Registrable
Shares covered by a Registration Statement, acting through the Lead Holder,
reasonably (in the light of such Holder’s intended plan of distribution)
requests and (ii) to cause such Registrable Shares to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Issuer and do any and
all other acts and things that may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in such jurisdictions of the
Registrable Shares owned by such Holder; provided that
the Issuer will not be required to (w) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this paragraph (f), (x) conform its capitalization or the composition of
its assets at the time to the securities or blue sky laws of any such
jurisdiction, (y) subject itself to taxation in any such jurisdiction or
(z) consent to general service of process in any such jurisdiction.


 


(f)       The Issuer will as promptly as reasonably
practicable notify the Lead Holder and each other Holder of Registrable Shares
covered by the Registration Statement, at any time when a prospectus relating
thereto is required to be delivered (or deemed delivered) under the 1933 Act,
of the occurrence of an event of which the Issuer has knowledge requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered (or deemed delivered) to the purchasers of such
Registrable Shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading, and, subject to Section 2.05,
the Issuer will as promptly as reasonably practicable prepare and furnish to
the Lead Holder a supplement to or an amendment of such prospectus so that, as
thereafter delivered (or deemed delivered) to the purchasers of such Registrable
Shares, such prospectus will not contain any untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading.


 


(g)      The Issuer will use commercially
reasonable efforts to enter into reasonable and customary agreements (including
an underwriting, registration or similar agreement in reasonable and customary
form for the Issuer containing customary indemnification and 


 


15

















 


contribution provisions)
and use commercially reasonable efforts to take such other actions as are
reasonably required or requested by a Holder, underwriter or Hedging
Counterparty, acting through the Lead Holder, in order to expedite or
facilitate the disposition of any Registrable Shares in a manner permitted by
this Agreement and the Spinco Agreement; provided, that
(i) any legal opinion that the Issuer is required to use commercially
reasonable efforts to obtain pursuant to the foregoing may be rendered by the
Issuer’s General Counsel (or another appropriate in-house lawyer), unless the
Person to whom such opinion is to be delivered will not accept a
“10b-5-opinion” from such counsel, in which case the Issuer shall use
commercially reasonable efforts to obtain such legal opinion from the Issuer’s
outside counsel; and (ii) in no event shall the Issuer be required to
obtain more than two comfort letters from the Issuer’s public accountants in
connection with any Registration Statement.


 


(h)      Upon execution of a customary
confidentiality agreement, the Issuer will make available for inspection by any
Holder of Registrable Shares covered by a Registration Statement, any Hedging
Counterparty in connection with any Hedging Transaction, any underwriter
participating in an underwritten offering pursuant to the Registration
Statement, Special Counsel, and any attorney, accountant or other professional
retained by any such Holder, Hedging Counterparty or underwriter (collectively,
the “Inspectors”), all financial and other
records, pertinent corporate documents and properties of the Issuer
(collectively, the “Records”) and
cause the Issuer’s and its significant subsidiaries’ officers, directors and
employees to, and shall use commercially reasonable efforts to cause the
Issuer’s independent accountants to, as promptly as reasonably practicable,
supply all information reasonably requested by any Inspector in connection with
such Registration Statement, Hedging Transaction or underwritten offering, in
each case, to the extent reasonably necessary to establish the applicable
Person’s due diligence defense under U.S. securities laws; provided
that in no event shall the Issuer be required to make available to the Holders
any information which the Board of Directors in its good faith judgment
believes is competitively sensitive or otherwise is confidential.  The Inspectors shall coordinate with one
another so that the inspection permitted hereunder will not unnecessarily
interfere with the Issuer’s conduct of business.  In any event, Records which the Issuer
determines, in good faith, to be confidential and which it notifies or
otherwise identifies in writing to the Inspectors are confidential shall not be
disclosed by the Inspectors unless (and only to the extent that) (i) the
disclosure of such Records is necessary to permit a Holder to enforce its
rights under this Agreement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction.  Each Holder agrees that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market transactions
in the securities of the Issuer or its Affiliates unless and until such is made
generally available to the public by the Issuer or such Affiliate or for any
reason not related to the registration of Registrable Securities.  Each Holder further agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, cause the Lead Holder to give notice to the Issuer and allow the
Issuer, at its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential.


 


(i)       The Issuer will otherwise use
commercially reasonable efforts (i) to comply with all applicable
rules and regulations of the SEC to the extent necessary to permit it to
lawfully fulfill its obligations under this Agreement, and (ii) to make
available to its security holders, as promptly as reasonably practicable, an
earnings statement covering a period of 12 months,


 


16

















 


beginning upon the first
disposition of Registrable Shares pursuant to a Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the 1933 Act.


 


(j)       The Issuer will use its commercially
reasonable efforts to cause all Registrable Shares to be listed on each
securities exchange on which the Common Stock is listed.


 


(k)      The Issuer will prepare and file with the
SEC, as promptly as reasonably practicable upon the request of any Holder,
acting through the Lead Holder, any amendments or supplements to a Registration
Statement or prospectus which, in the reasonable opinion of Special Counsel, is
required under the 1933 Act in connection with the distribution of the
Registrable Shares contemplated by the Registration Statement or prospectus.


 


(l)       The Issuer will use commercially
reasonable efforts to timely file the reports and materials required to be
filed by it under the 1933 Act and the 1934 Act to enable the Holders to sell
Registrable Shares without registration under the 1933 Act within the
limitation of the exemption provided by Rule 144.   As promptly as reasonably practicable
following its receipt of the request of the Lead Holder (acting on behalf of a
Holder), the Issuer will deliver to the Lead Holder (which shall deliver to
such Holder) a written statement as to whether it has complied with such requirements,
and shall use commercially reasonable efforts to provide such assurances as any
broker or dealer facilitating a sale of Registrable Shares under Rule 144
may reasonably request.


 


(m)     The Issuer shall reasonably cooperate with
each Holder, acting through the Lead Holder, in the disposition (provided such
disposition is permitted by the Spinco Agreement) of such Holder’s Registrable
Shares in accordance with the terms of this Agreement.  Such cooperation shall include the
endorsement and transfer of any certificates representing Registrable Shares
(or a book-entry transfer to similar effect) transferred in accordance with
this Agreement.


 


Section 3.02. 
Holder Responsibilities.


 


(a)      The Issuer may require each Holder of
Registrable Shares included in a Registration Statement and each Hedging
Counterparty in respect of a Hedging Transaction as promptly as reasonably
practicable to furnish in writing to the Issuer, through the Lead Holder, such
information regarding such Holder, the Hedging Counterparty or the distribution
of the Registrable Shares as the Issuer may from time to time reasonably
request and such other information as may be legally required in connection
with such registration.  If a Holder or
Hedging Counterparty fails to provide the requested information after being
given 15 Business Days’ written notice of such request and the requested
information is required by applicable law to be included in the Registration
Statement, the Issuer shall be entitled to refuse to include for registration
such Holder’s Registrable Shares or other shares of Common Stock in connection
with such Hedging Counterparty’s Hedging Transaction, as the case may be.


 


(b)      In connection with any disposition of
Registrable Shares pursuant to a Registration Statement, each Holder agrees
that it will not use any Free Writing Prospectus 


 


17

















 


without the prior consent
of the Issuer, which consent will not be unreasonably withheld or delayed.


 


(c)      Each Holder agrees that, upon receipt of
any written notice from the Lead Holder or the Issuer of the happening of any
event of the kind described in Section 3.01(f), such Holder will forthwith
discontinue the disposition of such Holder’s Registrable Shares pursuant to the
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3.01(f).  If the Issuer shall give such notice with
regards to any Demand Registration Statement, the Effectiveness End Date in
respect of such Registration Statement shall be extended by the number of days
during the period from and including the date such notice was given by the
Issuer to the date when the Issuer shall have made available to the Lead Holder
a prospectus or prospectus supplement that conforms with the requirements of
Section 3.01(f).


 


(d)      Each Holder will as promptly as reasonably
practicable notify the Issuer and the Lead Holder, at any time when a
prospectus relating thereto is required to be delivered (or deemed delivered)
under the 1933 Act, of the occurrence of an event, of which such Holder has
knowledge, relating to such Holder or its disposition of Registrable Shares
thereunder requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered (or deemed delivered) to the
purchasers of such Registrable Shares, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading.


 


ARTICLE IV


 


LOCK-UP AGREEMENTS


 


If requested by the managing underwriters in
connection with an underwritten offering of Registrable Shares under a
Registration Statement, each of the Holders and the Issuer shall execute and
deliver agreements (“Lock-up Agreements”)
containing customary restrictions on their ability to sell, offer to sell, or
otherwise dispose of any shares of Common Stock or any securities convertible
into or exercisable for such stock (or enter into any hedging or similar
transaction with an economic effect similar to any of the foregoing); provided that such restrictions shall be the same for all
such Persons and shall not have a duration in excess of the shortest period
required by the managing underwriters and in any event not more than 180 days
after the completion of such offering. 
Any Lock-up Agreements executed by the Holders shall contain provisions
naming the Issuer as an intended third-party beneficiary thereof and requiring
the prior written consent of the Issuer for any amendments thereto or waivers
thereof.  Any Lock-up Agreements executed
by the Issuer shall contain provisions naming the Holders as intended
third-party beneficiary thereof and requiring the prior written consent of the
Holders for any amendments thereto or waivers thereof.


 


18

















 


ARTICLE V


 


INDEMNIFICATION


 


Section 5.01. 
Indemnification By the Issuer. 
The Issuer agrees to indemnify and hold harmless to the fullest extent
permitted by law each Holder whose Registrable Shares are covered by the
Registration Statement, its officers, directors and each Person, if any, who
controls such Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, from and against any and all losses, claims,
damages, liabilities, and expenses, or any action or proceeding in respect
thereof (each, a “Liability” and
collectively, “Liabilities”) (including
reimbursement of such Holder for any legal or any other expenses reasonably
incurred by it in investigating or defending such Liabilities) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any prospectus relating to such
Registrable Shares (or in any amendment or supplement thereto), or arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such Liabilities arise out of or are based
upon any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Issuer by such
Holder or on such Holder’s behalf, in either such case expressly for use
therein; provided, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any prospectus, the indemnity agreement contained in this
paragraph shall not apply to the extent that any such Liability results from
(a) the fact that a current copy of the prospectus was not sent or given
to the Person asserting any such Liability at or prior to the written
confirmation of the sale of the Registrable Shares concerned to such Person if
it is determined that the Issuer has provided such prospectus and it was the
responsibility of such Holder or its agents to provide such Person with a
current copy of the prospectus and such current copy of the prospectus would
have cured the defect giving rise to such Liability, (b) the use of any
prospectus by or on behalf of any Holder after the Issuer has notified such
Person (i) that such prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (ii) that a stop order has
been issued by the SEC with respect to the Registration Statement or (iii) that
a Disadvantageous Condition exists or (c) the use of any prospectus by or
on behalf of any Holder with respect to any Registrable Shares after such time
as the Issuer’s obligation to keep the Registration Statement effective in
respect of such Registrable Shares has expired.


 


Section 5.02. 
Indemnification By Holders of Registrable Shares. Each Holder whose Registrable
Shares are included in the Registration Statement agrees, severally and not
jointly, to indemnify and hold harmless to the fullest extent permitted by law
(including reimbursement of the Issuer for any legal or any other expenses
reasonably incurred by it in investigating or defending such Liabilities) the
Issuer, its officers, directors, agents, and each Person, if any, who controls
the Issuer within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act, to the same extent as the foregoing indemnity
from the Issuer to such Holder in Section 5.01, but only (i) to the
extent such Liabilities arise out of or are based upon information furnished in
writing by such Holder or on such Holder’s behalf, in either case expressly for
use in the Registration Statement, prospectus or in any amendment or supplement
thereto relating to such Holder’s Registrable Shares or (ii) to the extent
that any Liability described in this Section 


 


19

















 


5.02 results from (a) the fact that a current copy of the
prospectus was not sent or given to the Person asserting any such Liability at
or prior to the written confirmation of the sale of the Registrable Shares
concerned to such Person if it is determined that it was the responsibility of
such Holder or its agent to provide such Person with a current copy of the
prospectus and such current copy of the prospectus would have cured the defect
giving rise to such loss, claim, damage, liability or expense, (b) the use
of any prospectus by or on behalf of any Holder after the Issuer has notified
such Person (x) that such prospectus contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (y) that the SEC has issued a
stop order with respect to the Registration Statement or (z) that a
Disadvantageous Condition exists or (c) the use of any prospectus by or on
behalf of any Holder after such time as the obligation of the Issuer to keep
the related Registration Statement in respect of such Holder’s Registrable
Shares effective has expired.


 


Section 5.03. 
Conduct Of Indemnification Proceeding.  After receipt by
any Person (an “Indemnified Party”) of any notice
of the commencement of any action, suit, proceeding or investigation or threat
thereof in respect of which indemnity may be sought pursuant to
Section 5.01 or 5.02, such Indemnified Party shall as promptly as
reasonably practicable notify the Person against whom such indemnity may be
sought (the “Indemnifying Party”) in
writing.  Following notice of
commencement of any such action given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to
the extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
reasonably satisfactory to such Indemnified Party.  In any such proceeding so assumed by the
Indemnifying Party, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or (ii) representation of both parties by the same counsel would be
inappropriate due to actual or potential differing or conflicting interests
between them.  It is understood that the
Indemnifying Party, in connection with any proceeding or related proceedings in
the same jurisdiction, shall be liable only for the reasonable fees and
expenses of one firm of attorneys (in addition to any necessary local counsel)
at any time for all such Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred upon submission of reasonably
itemized invoices that comply with the Issuer’s standard billing policies for
outside counsel.  In the case of any such
separate firm for Holders who are entitled to indemnity pursuant to
Section 5.01, such firm shall be designated in writing by the Indemnified
Party who had the largest number of Registrable Shares included in the
Registration Statement at issue.  The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent, or if there be a final judgment for
the plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment.  No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Party is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such
proceeding.


 


20
















 


Section 5.04.  Contribution.


 


(a)      If the indemnification provided for hereunder shall for any
reason be held by a court of competent jurisdiction to be unavailable to an
Indemnified Party in respect of any Liability referred to herein, then each
such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Liabilities between the Issuer on the one hand and each Holder whose
Registrable Shares are covered by the Registration Statement in issue on the
other, in such proportion as is appropriate to reflect the relative fault of
the Issuer and of each such Holder in connection with any untrue statement of a
material fact contained in the Registration Statement, any prospectus or any
amendment or supplement thereto or caused by any omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which resulted in such Liabilities, as well as any
other relevant equitable considerations. 
The relative fault of the Issuer on the one hand and of each such Holder
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.


 


(b)      The Issuer and the Holders (including each Permitted
Transferee) agree that it would not be just and equitable if contribution
pursuant to this Section 5.04 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph.  The amount paid or payable by
an Indemnified Party as a result of the Liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim.  Notwithstanding the provisions
of this Article V, no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable Shares
sold by it under the Registration Statement exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.  No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1934
Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.


 


ARTICLE
VI


 


MISCELLANEOUS
PROVISIONS


 


Section 6.01.  Recapitalization,
Exchanges, etc.  The provisions of
this Agreement shall apply to the full extent set forth herein with respect to
any and all securities into which any of the Registrable Shares are converted,
exchanged or substituted in any recapitalization or other capital
reorganization involving the Issuer and any and all securities of the Issuer or
any successor or assign or acquirer of the Issuer (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, such Registrable
Shares and shall be appropriately adjusted for any dividends of Common 


 


21

















 


Stock in respect of the
Common Stock, stock splits, reverse splits, combinations, recapitalizations and
the like occurring after the date hereof. 
The Issuer shall cause any successor or assign or acquiror (whether by
merger, consolidation, sale of assets or otherwise) to enter into a new
registration rights agreement with the Holders on terms no less favorable to
such parties than the terms provided under this Agreement as a condition of any
such transaction.


 


Section 6.02.  Notices.  All notices, requests, claims and demands and
other communications hereunder shall be in writing and shall be deemed duly
delivered and received (i) three Business Days after the same are sent by
certified or registered mail, postage prepaid, return receipt requested,
(ii) when delivered by hand or transmitted by telecopy (answer back
received), if received prior to 5 p.m. on a Business Day, otherwise on the
next Business Day or (iii) one Business Day after the same are sent by a
reliable overnight courier service, with acknowledgment of receipt requested,
in each case to the intended recipient as set forth below:


 


If to Liberty or any Liberty
Party, to:


 


Liberty
Media Corporation


12300
Liberty Boulevard


Englewood,
Colorado 80112


Attention:
General Counsel


Fax:
(720) 875-5382


 


with a copy to:


 


Baker
Botts L.L.P.


30
Rockefeller Plaza


New
York, New York  10112


Attention:  Frederick H. McGrath


Fax:
(212) 259-2530


 


If to the Issuer, to:


 


Tree.com, Inc.


11115 Rushmore Drive


Charlotte, NC 28277


Attention: General Counsel


Fax:  (949)
255-5139


 


Any
party to this Agreement may give any notice or other communication hereunder
using any other means (including personal delivery, messenger service, telecopy
or ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it actually is received by the office of
the party for whom it is intended during business hours on a Business Day in
the place of receipt.  Any party to this
Agreement may change the address to which notices and other communications
hereunder are to be delivered by giving the other parties to this Agreement
notice in the manner herein set forth. 
Each Person (other than Liberty or a Liberty Party) upon becoming a
Holder hereunder shall concurrently provide notice to the other parties hereto
of such Holder’s address.  The Issuer
shall have no obligation to deliver any 


 


22

















 


notices
under this Agreement to or otherwise interact with any purported Holder that
has not provided notice to the Issuer pursuant to the preceding sentence, and
no such Person shall have any rights under this Agreement unless and until such
Person delivers such notice.


 


Section 6.03.  Entire
Agreement; No Inconsistent Agreements.


 


(a)      This Agreement, together with the Spinco Agreement, constitutes
the entire agreement among the parties hereto and supersedes any prior
understandings, agreements or representations by or among the parties hereto,
or any of them, written or oral, with respect to the subject matter hereof.


 


(b)      The Issuer shall not hereafter enter into or amend any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders of Registrable Shares in this Agreement or otherwise
conflicts with the provisions hereof in a manner adverse to the Holders.


 


(c)      Prior to the date hereof and except for any agreement to which
Liberty is a party, the Issuer has not granted any “piggyback” or other
registration rights to any Person that would entitle any Person (other than the
Holders) to participate in any registration contemplated by this Agreement.


 


(d)      The Issuer will not grant any “piggyback” or other registration
rights to any Person that would entitle that Person (other than the Holders) to
participate in any Demand Registration Statement except on terms that are no
less favorable to the Holders than those applicable to Other Shareholders as
set forth in Section 2.10(e)(ii).


 


Section 6.04.  Further
Assurances.  Each of the parties
shall execute such documents and perform such further acts as may be reasonably
required or desirable to carry out or perform the provisions of this Agreement.


 


Section 6.05.  No
Third-Party Beneficiaries.  Except as
provided in Sections 2.09, 5.01, and 5.02, this Agreement is not intended, and
shall not be deemed, to confer any rights or remedies upon any Person other
than the parties hereto and their respective successors and permitted assigns
or to otherwise create any third-party beneficiary hereto.


 


Section 6.06.  Assignment.  This Agreement shall be binding upon, shall
inure to the benefit of, and shall be enforceable by the parties hereto and
their respective successors and permitted assigns and, with respect to each
Holder, any Permitted Transferee.  No
assignment (other than in accordance with Section 6.01) or transfer shall
be effective hereunder unless and until the purported transferee executes and
delivers an agreement, in form and substance reasonably acceptable to the
parties, agreeing to be bound by the terms hereof.  Notwithstanding anything to the contrary in
this Agreement, other than an assignment contemplated by Section 6.01, the
Issuer may not assign its obligations hereunder.


 


Section 6.07.  Amendments
and Waivers.  Except as otherwise
provided herein, the provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless, following the approval of a majority of the
Qualified Directors (as defined in the Spinco Agreement) of the 


 


23

















 


Issuer, consented to in
writing by the Issuer and Holders of at least 50% of the Registrable Shares
held by all Holders of Registrable Shares as of such date.


 


Section 6.08.  Nominees
for Beneficial Owners.  If any
Registrable Shares are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Issuer through the Lead Holder, be treated as the Holder of such Registrable
Shares for purposes of any request, consent, waiver or other action by any
Holder or Holders of Registrable Shares pursuant to this Agreement or any
determination of any number or percentage of Registrable Shares held by any
Holder or Holders of Registrable Shares contemplated by this Agreement.  If the beneficial owner of any Registrable
Shares makes the election provided in this Section 6.08, the Issuer may
require assurances reasonably satisfactory to it of such owner’s beneficial
ownership of such Registrable Shares.


 


Section 6.09.  Severability.  Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity of the offending term or provision in any other
situation or in any other jurisdiction. 
If the final judgment of a court of competent jurisdiction declares that
any term or provision hereof is invalid or unenforceable, the parties hereto
agree that the court making such determination shall have the power to limit
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provisions that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.  In the event
such court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that shall achieve, to the
extent possible, the economic, business and other purposes of such invalid or
unenforceable term.


 


Section 6.10.  Counterparts
and Signature.  This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each of the
parties hereto and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. 
This Agreement may be executed and delivered by facsimile transmission.


 


Section 6.11.  Interpretation.  When reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement, unless
otherwise indicated.  The headings
contained in this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.  The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any
party.  Whenever the context may require,
any pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.  Any
reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. 
Whenever the words “include”, “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without
limitation.”


 


24

















 


Section 6.12.  Governing
Law; Consent To Jurisdiction.  This
Agreement shall be construed in accordance with and governed by the internal
laws of the State of Delaware, without giving effect to the principles of
conflicts of laws.  Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of Delaware, for any action,
proceeding or investigation in any court or before any governmental authority
(“Litigation”) arising out of or
relating to this Agreement and the transactions contemplated hereby and further
agrees that service of any process, summons, notice or document by U.S. mail to
its respective address set forth in this Agreement shall be effective service
of process for any Litigation brought against it in any such court.  Each of the parties hereto hereby irrevocably
and unconditionally waives any objection to the laying of venue of any
Litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of Delaware, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such Litigation brought in any such court has been brought in an
inconvenient forum.  Each of the parties
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any and all rights to trial by jury in connection with any Litigation
arising out of or relating to this Agreement or the transactions contemplated
hereby.


 


Section 6.13.  Remedies;
Limitation on Liability.  (a) 
Except as otherwise provided herein, any and all remedies herein expressly
conferred upon a party shall be deemed cumulative with and not exclusive of any
other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy shall not preclude the exercise of any
other remedy.  The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached.   It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which the parties are entitled at law or in equity.


 


(b) 
In no event shall the Issuer have any liability to any Holder or other Person
under this Agreement for any act or failure to act by the Lead Holder in
accordance with the terms hereof, each of which Holder agrees that its sole
remedy, whether at equity or in law, in any such case shall be against the Lead
Holder, and further agrees not to bring any action against the Issuer or any of
Affiliates in connection with any such act or failure to act by the Lead
Holder.  Except in respect of the
Issuer’s indemnification obligations under Article V of this Agreement,
each Holder (other than the Lead Holder) hereby assigns to the Lead Holder such
Holder’s right under this Agreement to bring any action or to pursue any remedy
against the Issuer or any of its Affiliates for any breach or violation, or any
alleged or threatened breach or violation, by the Issuer of its obligations
under this Agreement, and each such Holder (other than the Lead Holder) hereby
agrees not to directly bring any such action or to pursue any such remedy
against the Issuer or any of its Affiliates therefor.  The Issuer agrees not to challenge the
standing of the Lead Holder to bring any such claim or cause of action or
pursue any remedy in the name of the Lead Holder on behalf of a Holder.  Any Holder and the Lead Holder may execute
such  instruments,
including an assignment of any claims, as may be necessary to permit the Leader
Holder to validly pursue any action or remedy on behalf of a Holder pursuant to
this Section 6.13 and to preserve any injured Holder’s right to receive
any recovery obtained by the Lead Holder on behalf of such Holder.


 


25

















 


Section 6.14.  Confidentiality.  Each Holder agrees not to (and to cause any
Hedging Counterparty to a Hedging Transaction with such Holder not to) disclose
without the prior written consent of the Issuer any information
(i) regarding the Issuer’s exercise of any of its rights under
Section 2.05 or Section 3.01(f) or (ii) obtained pursuant
to this Agreement which the Issuer identifies to be proprietary to the Issuer
or otherwise confidential. Notwithstanding the foregoing, each Holder or
Hedging Counterparty may disclose such information to such of its agents,
employees, advisors and counsel as have a need to know such information
provided that such Holder shall cause such agents, employees, advisors and
counsel to comply with the requirements of this Section 6.14, provided, that such Holder or Hedging Counterparty may disclose such
information if (and only to the extent that) (A) such disclosure is
necessary to permit a Holder to enforce its rights under this Agreement or
(B) such disclosure is required by legal process, but such Holder or
Hedging Counterparty shall cooperate with the Issuer to limit the extent of
such disclosure through protective order or otherwise, and to seek confidential
treatment of such information. Each Holder further acknowledges, understands
and agrees (and shall cause any such Hedging Counterparty to agree) that any
confidential information will not be utilized in connection with purchases
and/or sales of the Issuer’s securities except in compliance with applicable
state and federal antifraud statutes.


 


Section 6.15.  Termination.  This Agreement (other than Article V and
Article VI) shall terminate and be of no further force and effect at the
first such time as there are no Registrable Shares or, if earlier, at such time
as the Issuer has registered pursuant to this Agreement an aggregate number of
sales or transfers of Registrable Shares or other shares of Common Stock equal
to the Total Registrable Amount (it being specified, for the avoidance of
doubt, that a sale or transfer of a Registrable Share or other share of Common
Stock shall be considered to have been registered for purposes of this
Section 6.15 in the circumstances specified in the last sentence of
Section 2.04(a)); provided, that any such termination
shall not relieve any party of any liability for any breach of this Agreement
prior to such termination.


 


26

















 


IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the date
first written above.


 


	
  Liberty Media Corporation,

  	
   

  	
  TREE.COM, INC., a Delaware corporation

  
	
  a Delaware corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Craig Troyer

  	
   

  	
  /s/ Joanne Hawkins

  
	
  Name:

  	
  Craig Troyer

  	
   

  	
  Name:

  	
  Joanne Hawkins

  
	
  Title:

  	
  Vice President

  	
   

  	
  Title:

  	
  Vice President and Assistant Secretary

  



 


 


	
  Liberty
  USA Holdings, LLC

  	
   

  
	
  a
  Delaware limited liability company

  	
   

  
	
   

  	
   

  
	
  By:
  Liberty Programming Company LLC, its 

  	
   

  
	
  sole
  member and manager

  	
   

  
	
   

  	
   

  
	
  By:
  LMC Capital LLC, its sole member and

  	
   

  
	
  manager

  	
   

  
	
   

  	
   

  
	
  /s/
  Craig Troyer

  	
   

  
	
  Name:

  	
  Craig
  Troyer

  	
   

  
	
  Title:

  	
  Vice
  President

  	
   

  



 


[Signature Page to Tree
Registration Rights Agreement (Liberty)]


 

















 


ANNEX
A


 


PLAN OF DISTRIBUTION


 


Each of the selling stockholders, including certain
transferees who may later hold its interest in the shares covered by this
prospectus and who are otherwise entitled to resell the shares using this
prospectus, may sell the shares covered by this prospectus from time to time in
any legal manner selected by the selling stockholder, including directly to
purchasers or through underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholder or the purchasers. 
These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.  The
selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of each sale of the shares covered by
this prospectus.


 


Each selling stockholder has advised us that its
shares may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at prices related to the prevailing market
prices, at varying prices determined at the time of sale and/or at negotiated
prices. These sales may be effected in one or more transactions, including:


 


·                  on the New York Stock Exchange or the Nasdaq
Stock Market;


 


·                  in the over-the-counter market;


 


·                  in transactions otherwise than on the New
York Stock Exchange or the Nasdaq Stock Market or in the over-the-counter
market; or


 


·                  any combination of the foregoing.


 


In addition, the selling stockholders may also enter
into hedging and/or monetization transactions. For example, a selling
stockholder may:


 


·                  enter into transactions with a broker-dealer
or affiliate of a broker-dealer or other third party in connection with which
that other party will become a selling stockholder and engage in short sales of
shares under this prospectus, in which case the other party may use shares
received from the selling stockholder to close out any short positions;


 


·                  itself sell short the shares under this
prospectus and use the securities held by it to close out any  short position;


 


·                  enter into options, forwards or other
transactions that require the selling stockholder to deliver, in a transaction
exempt from registration under the Securities Act, the securities to a
broker-dealer or an affiliate of a broker-dealer or other third party who may
then become a selling stockholder and publicly resell or otherwise transfer the
securities under this prospectus; or


 


·                  loan or pledge the securities to a
broker-dealer or affiliate of a broker-dealer or other third party who may
then  become a selling stockholder and
sell the loaned securities 


 


A-1

















 


or, in an event of default in the case of a pledge,
become a selling stockholder and sell the pledged securities, under this
prospectus.


 


Each selling stockholder has advised us that it has
not entered into any agreements, arrangements or understandings with any
underwriter, broker-dealer or agent regarding the sale of its shares. However,
we are required, under a registration rights agreement relating to the shares
being sold under this prospectus, to enter into customary underwriting and
other agreements in connection with the distribution of the securities under
this prospectus.  The specific terms of
any such underwriting or other agreement will be disclosed in a supplement to
this prospectus filed with the SEC under Rule 424(b) under the
Securities Act, or, if appropriate, a post-effective amendment to the
registration statement of which this prospectus forms a part.  Each selling stockholder may sell any or all
of the shares offered by it pursuant to this prospectus.  In addition, there can be no assurance that
any selling stockholder will not transfer, devise or gift its shares by other
means not described in this prospectus.


 


There can be no assurance that a selling stockholder
will sell any or all of its shares pursuant to this prospectus. In addition,
any shares covered by this prospectus that qualify for sale pursuant to Rule 144
of the Securities Act may be sold under Rule 144 rather than pursuant to
this prospectus.


 


The aggregate proceeds to a selling stockholder from
the sale of the shares offered by it will be the purchase price of the shares
less discounts and commissions, if any. If the shares are sold through
underwriters or broker-dealers, the selling stockholder will be responsible for
underwriting discounts and commissions and/or agent’s commissions. We will not
receive any of the proceeds from the sale of the shares covered by this
prospectus.


 


In order to comply with the securities laws of some
states, if applicable, the shares may be sold in these jurisdictions only
through registered or licensed brokers or dealers. In addition, in some states
the shares may not be sold unless they have been registered or qualified for
sale or an exemption from registration or qualification requirements is
available and is complied with.


 


Any underwriters, broker-dealers or agents that
participate in the sale of the securities may be deemed to be “underwriters” within
the meaning of Section 2(11) of the Securities Act.  As a result, any profits on the sale of the
shares by the selling stockholder and any discounts, commissions or concessions
received by any such broker-dealers or agents may be deemed to be underwriting
discounts and commissions under the Securities Act.


 


To the extent required, the shares to be sold, the
names of the selling stockholders, the respective purchase prices and public
offering prices, the names of any agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement of which this prospectus
is a part.


 


We have agreed to indemnify each selling stockholder
and its directors, officers and controlling Persons against certain
liabilities, including specified liabilities under the Securities Act, or to
contribute with respect to payments which the selling stockholder may be
required to make in respect of such liabilities. The selling stockholder has
agreed to indemnify us for 


 


A-2

















 


liabilities arising under the Securities Act with respect to written
information furnished to us by it or to contribute with respect to payments in
connection with such liabilities.


 


We have agreed to pay certain costs, fees and
expenses incident to our registration of the resale of the selling stockholder’s
shares, excluding legal fees of the selling stockholders, commissions, fees and
discounts of underwriters, brokers, dealers and agents and certain other
expenses.


 


Under our registration rights agreement with the
selling stockholders, we will use our commercially reasonable efforts to keep
the registration statement of which this prospectus is a part continuously
effective, subject to customary suspension periods, until the earlier of (i) the
30th day (or, if such registration statement is on Form S-3, the 90th day)
after such registration statement is initially declared effective, and (ii) the
date that there are no longer any securities covered by such registration
statement.


 


Our obligation to keep the registration statement to
which this prospectus relates effective is subject to specified, permitted
exceptions. In these cases, we may suspend offers and sales of the shares
pursuant to the registration statement to which this prospectus relates.


 


A-3