BY LIBERTY EXCEPT UPON THE WRITTEN REQUEST OF LIBERTY.
(D)
LIBERTY WILL NOT BE DEEMED TO BE IN
VIOLATION OF PARAGRAPHS (A), (B) OR (C) OF THIS SECTION 3.1 AS A RESULT OF ANY
ACTION BY DILLER (INCLUDING ACTIONS TAKEN BY A BDTV ENTITY AS A RESULT OF AN
ACTION BY DILLER) THAT IS NOT WITHIN LIBERTY'S CONTROL.
SECTION 3.2.
RESTRICTIONS ON OTHER AGREEMENTS.
NO STOCKHOLDER OR ANY OF ITS OR
HIS PERMITTED TRANSFEREES SHALL ENTER INTO OR AGREE TO BE BOUND BY ANY
STOCKHOLDER AGREEMENTS OR ARRANGEMENTS OF ANY KIND WITH ANY PERSON WITH RESPECT
TO ANY EQUITY (INCLUDING, WITHOUT LIMITATION, THE DEPOSIT OF ANY COMMON SHARES
IN A VOTING TRUST OR FORMING, JOINING OR IN ANY WAY PARTICIPATING IN OR
ASSISTING IN THE FORMATION OF A GROUP WITH RESPECT TO ANY COMMON SHARES, OTHER
THAN ANY SUCH GROUP CONSISTING EXCLUSIVELY OF LIBERTY AND DILLER AND ANY OF
THEIR RESPECTIVE AFFILIATES, PERMITTED DESIGNEES AND PERMITTED TRANSFEREES AND,
TO THE EXTENT CONTEMPLATED BY SECTION 4.5, ANY THIRD PARTY TRANSFEREE) AND NO
STOCKHOLDER (OTHER THAN LIBERTY OR ANY OF ITS PERMITTED TRANSFEREES) OR ANY OF
ITS OR HIS PERMITTED TRANSFEREES SHALL ENTER INTO OR AGREE TO BE BOUND BY ANY
AGREEMENTS OR ARRANGEMENTS OF ANY KIND WITH ANY PERSON TO INCUR INDEBTEDNESS FOR
PURPOSES OF PURCHASING EQUITY (OTHER THAN TO EXERCISE OPTIONS OR TO PURCHASE
COMMON SHARES PURSUANT TO SECTION 4.3 OF THIS AGREEMENT), EXCEPT (I) FOR SUCH
AGREEMENTS OR ARRANGEMENTS AS ARE NOW IN EFFECT, (II) IN CONNECTION WITH A
PROPOSED SALE OF BDTV ENTITY SECURITIES OR COMMON SHARES OTHERWISE PERMITTED
HEREUNDER, (III) FOR SUCH AGREEMENTS OR ARRANGEMENTS WITH A PERMITTED DESIGNEE
AS ARE REASONABLY ACCEPTABLE TO THE OTHER STOCKHOLDER AND NOT INCONSISTENT WITH
OR FOR THE PURPOSE OF EVADING THE TERMS OF THIS AGREEMENT, (IV) AGREEMENTS
BETWEEN A STOCKHOLDER AND ITS PERMITTED TRANSFEREE THAT ARE REASONABLY
ACCEPTABLE TO THE OTHER STOCKHOLDER AND NOT INCONSISTENT WITH THIS AGREEMENT OR
(IV) FOR HEDGING TRANSACTIONS AS CONTEMPLATED BY SECTION 4.2(E).
8
SECTION 3.3.
IRREVOCABLE PROXY OF LIBERTY.
(A)
SUBJECT TO PARAGRAPHS (B) AND
(C) BELOW, UNTIL THE EARLIER OF THE DATE THAT (X) DILLER IS NO LONGER CEO OR
(Y) DILLER IS DISABLED, DILLER SHALL BE ENTITLED TO EXERCISE VOTING AUTHORITY
AND AUTHORITY TO ACT BY WRITTEN CONSENT OVER ALL COMMON SHARES BENEFICIALLY
OWNED BY EACH MEMBER OF THE LIBERTY STOCKHOLDER GROUP (THE "LIBERTY PROXY
SHARES"), ON ALL MATTERS SUBMITTED TO A VOTE OF THE COMPANY'S STOCKHOLDERS OR BY
WHICH THE COMPANY'S STOCKHOLDERS MAY ACT BY WRITTEN CONSENT, PURSUANT TO A
CONDITIONAL PROXY (WHICH PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST FOR
PURPOSES OF SECTION 212 OF THE DELAWARE GENERAL CORPORATION LAW) (THE "LIBERTY
PROXY"); PROVIDED, THAT IN THE EVENT THAT DILLER IS REMOVED BY THE BOARD AS CEO
FOR ANY REASON OTHER THAN CAUSE, DILLER SHALL BE DEEMED TO CONTINUE TO BE CEO
FOR PURPOSES OF THIS AGREEMENT AND SHALL BE ENTITLED TO THE LIBERTY PROXY SET
FORTH HEREIN UNTIL THE EARLIER OF (A) SUCH TIME AS HE HAS