DEEMED
TO BE THE BENEFICIAL OWNER OF ANY EQUITY SECURITIES WHICH MAY BE ACQUIRED BY
SUCH PERSON
6
(DISREGARDING ANY LEGAL IMPEDIMENTS TO SUCH BENEFICIAL OWNERSHIP), WHETHER
WITHIN 60 DAYS OR THEREAFTER, UPON THE CONVERSION, EXCHANGE OR EXERCISE OF ANY
WARRANTS, OPTIONS (WHICH OPTIONS HELD BY MR. DILLER SHALL BE DEEMED TO BE
EXERCISABLE), RIGHTS OR OTHER SECURITIES ISSUED BY THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) NO PERSON SHALL BE DEEMED TO BENEFICIALLY OWN ANY EQUITY SECURITIES
SOLELY AS A RESULT OF SUCH PERSON'S EXECUTION OF THIS AGREEMENT (INCLUDING BY
VIRTUE OF HOLDING A PROXY WITH RESPECT TO ANY EQUITY SECURITIES), OR THE AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT, OR WITH RESPECT TO WHICH SUCH PERSON DOES
NOT HAVE A PECUNIARY INTEREST, AND (C) LIBERTY SHALL BE DEEMED TO BE THE
BENEFICIAL OWNER OF ALL OF THE COMPANY COMMON SHARES HELD BY EACH BDTV ENTITY.
SECTION 5.06.
"CEO" SHALL MEAN THE CHIEF EXECUTIVE
OFFICER OF THE COMPANY OR ANY SUCCESSOR ENTITY.
SECTION 5.07.
"CEO TERMINATION DATE"
SHALL MEAN THE
DATE THAT MR. DILLER NO LONGER SERVES AS CEO.
SECTION 5.08.
"COMMISSION" SHALL MEAN THE SECURITIES
AND EXCHANGE COMMISSION.
SECTION 5.09.
"COMPANY" SHALL HAVE THE MEANING SET
FORTH IN THE RECITALS TO THIS AGREEMENT.
SECTION 5.10.
"COMPANY COMMON SHARES" SHALL MEAN
SHARES OF COMPANY COMMON STOCK AND COMPANY CLASS B STOCK.
SECTION 5.11.
"COMPANY CLASS B STOCK" SHALL MEAN
CLASS B COMMON STOCK, $0.001 PAR VALUE PER SHARE, OF THE COMPANY.
SECTION 5.12.
"COMPANY COMMON STOCK" SHALL MEAN
COMMON STOCK, $0.001 PAR VALUE PER SHARE, OF THE COMPANY.
SECTION 5.13.
"CONSENTING PARTY" SHALL HAVE THE
MEANING SET FORTH IN SECTION 2.03 OF THIS AGREEMENT.
SECTION 5.14.
"DEMAND REGISTRATION" SHALL HAVE THE
MEANING SET FORTH IN SECTION 6.07(B) OF THIS AGREEMENT.
SECTION 5.15.
"DISABLED" SHALL MEAN THE DISABILITY
OF MR. DILLER AFTER THE EXPIRATION OF MORE THAN 180 CONSECUTIVE DAYS AFTER ITS
COMMENCEMENT WHICH IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN
SELECTED BY LIBERTY AND REASONABLY ACCEPTABLE TO MR. DILLER, HIS SPOUSE OR A
PERSONAL REPRESENTATIVE DESIGNATED BY MR. DILLER; PROVIDED THAT MR. DILLER SHALL
BE DEEMED TO BE DISABLED ONLY FOLLOWING THE EXPIRATION OF 90 DAYS FOLLOWING
RECEIPT OF A WRITTEN NOTICE FROM THE COMPANY AND SUCH PHYSICIAN SPECIFYING THAT
A DISABILITY HAS OCCURRED IF WITHIN SUCH 90-DAY PERIOD HE FAILS TO RETURN TO
MANAGING THE BUSINESS AFFAIRS OF THE COMPANY.
TOTAL DISABILITY SHALL MEAN
MENTAL OR PHYSICAL INCAPACITY THAT PREVENTS MR. DILLER FROM MANAGING THE
BUSINESS AFFAIRS OF THE COMPANY.
SECTION 5.16.
"EBITDA" SHALL MEAN, FOR ANY PERIOD,
FOR THE COMPANY AND ITS SUBSIDIARIES, ON A COMBINED CONSOLIDATED BASIS: NET
INCOME PLUS (TO THE EXTENT REFLECTED IN THE
7
DETERMINATION OF NET INCOME) (I) PROVISION FOR INCOME TAXES, (II) MINORITY
INTEREST, (III) INTEREST INCOME AND EXPENSE, (IV) DEPRECIATION AND AMORTIZATION,
(V) AMORTIZATION OF CABLE DISTRIBUTION FEES, AND (VI) AMORTIZATION OF NON-CASH
DISTRIBUTION AND MARKETING EXPENSE AND NON-CASH COMPENSATION EXPENSE.
SECTION 5.17.
"EQUITY SECURITIES" SHALL MEAN THE
EQUITY SECURITIES OF THE COMPANY CALCULATED ON A COMPANY