BE
TAKEN ALL ACTIONS NECESSARY TO REMOVE THE DIRECTOR DESIGNATED BY LIBERTY AND TO
ELECT ANY REPLACEMENT DIRECTOR DESIGNATED BY LIBERTY AS PROVIDED IN THE FIRST
SENTENCE OF THIS SECTION 2.01(D).
THE PARTIES HERETO HEREBY ACKNOWLEDGE THAT AS
OF THE DATE OF THIS AGREEMENT THERE EXIST TWO VACANCIES WITH RESPECT TO WHICH
LIBERTY HAS THE RIGHT TO DESIGNATE LIBERTY DIRECTORS IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT AND THAT, UPON LIBERTY'S DESIGNATION OF LIBERTY
DIRECTORS TO FILL SUCH VACANCIES, THE COMPANY WILL USE ITS BEST EFFORTS TO CAUSE
SUCH VACANCIES TO BE FILLED WITHIN A REASONABLE PERIOD OF TIME BY SUCH LIBERTY
DIRECTORS SO DESIGNATED.
SECTION 2.02.
MANAGEMENT OF THE BUSINESS.
EXCEPT AS
INDICATED IN SECTION 2.03 BELOW OR AS REQUIRED BY DELAWARE LAW OR THE
CERTIFICATE OF INCORPORATION OF THE COMPANY AND THE BY-LAWS AND THE AGREEMENTS
CONTEMPLATED THEREBY, MR. DILLER, SO LONG AS HE IS CEO AND HAS NOT BECOME
DISABLED, WILL CONTINUE TO HAVE FULL AUTHORITY TO OPERATE THE DAY-TO-DAY
BUSINESS AFFAIRS OF THE COMPANY TO THE SAME EXTENT AS PRIOR TO THE DATE HEREOF.
THE COMPANY SHALL USE ITS REASONABLE BEST EFFORTS TO CAUSE ONE LIBERTY DIRECTOR
DESIGNATED BY LIBERTY FOR SUCH PURPOSE TO BE APPOINTED AS A MEMBER OF A
COMMITTEE OF THE BOARD OF DIRECTORS AND, TO THE EXTENT SUCH PERSON QUALIFIES
UNDER APPLICABLE LAW (INCLUDING STOCK EXCHANGE OR NASDAQ REQUIREMENTS, AS
APPLICABLE, AND TAX LAWS) AND SECTION 16(B) UNDER THE EXCHANGE ACT OR OTHER
SIMILAR REQUIREMENTS, ALL COMMITTEES AND SUBCOMMITTEES OF THE BOARD OF DIRECTORS
THAT MAKE DETERMINATIONS RELATING TO THE COMPENSATION OF EXECUTIVES OF THE
COMPANY.
SECTION 2.03.
CONTINGENT MATTERS.
SO LONG AS
LIBERTY OR MR. DILLER BENEFICIALLY OWNS, IN THE CASE OF LIBERTY, AT LEAST
29,912,856 EQUITY SECURITIES (INCLUDING ALL EQUITY SECURITIES HELD BY THE BDTV
ENTITIES) (SO LONG AS SUCH OWNERSHIP PERCENTAGE EQUALS AT LEAST 5% OF THE TOTAL
EQUITY SECURITIES), OR, IN THE CASE OF MR. DILLER, AT LEAST FIVE MILLION COMPANY
COMMON SHARES WITH RESPECT TO WHICH HE HAS A PECUNIARY INTEREST AND THE CEO
TERMINATION DATE (AS DEFINED IN THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AND NOT AS DEFINED IN THIS AGREEMENT) HAS NOT OCCURRED AND MR. DILLER HAS NOT
BECOME DISABLED, NEITHER THE COMPANY NOR ANY SUBSIDIARY
2
SHALL TAKE ANY OF THE FOLLOWING ACTIONS (ANY SUCH ACTION, A "CONTINGENT MATTER")
WITHOUT THE PRIOR APPROVAL OF MR. DILLER AND/OR LIBERTY, WHICHEVER (OR BOTH)
SATISFY THE FOREGOING BENEFICIAL OWNERSHIP REQUIREMENTS:
(A)
ANY TRANSACTION NOT IN THE ORDINARY COURSE
OF BUSINESS, LAUNCHING NEW OR ADDITIONAL CHANNELS OR ENGAGING IN ANY NEW FIELD
OF BUSINESS, IN ANY CASE, THAT WILL RESULT IN, OR WILL HAVE A REASONABLE
LIKELIHOOD OF RESULTING IN, LIBERTY OR MR. DILLER OR ANY AFFILIATE THEREOF BEING
REQUIRED UNDER LAW TO DIVEST ITSELF OF ALL OR ANY PART OF ITS BENEFICIAL
OWNERSHIP OF COMPANY COMMON SHARES, OR INTERESTS THEREIN, OR ANY OTHER MATERIAL
ASSETS OF SUCH PERSON, OR THAT WILL RENDER SUCH PERSON'S CONTINUED OWNERSHIP OF
SUCH SECURITIES, SHARES, INTERESTS OR ASSETS ILLEGAL OR