\n| \n Voting Company Debt<\/p>\n<\/td>\n | \n 2.01(b)(i)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n iv<\/p>\n
\nINVESTMENT AGREEMENT dated as of August 18, 2011 (this “Agreement<\/u>“),
\nbetween Barnes & Noble, Inc., a Delaware corporation (the
\n“Company<\/u>“), and the investor identified on the signature page hereto (the
\n“Investor<\/u>“).<\/p>\n WHEREAS the Company desires to issue, sell and deliver to the Investor, and
\nthe Investor desires to purchase and acquire from the Company, pursuant to the
\nterms and conditions set forth in this Agreement, an aggregate of 204,000 shares
\n(the “Preferred Shares<\/u>“) of the Company153s Senior Convertible Redeemable
\nSeries J Preferred Stock, par value $.001 (the “Series J Preferred
\nStock<\/u>“), having the powers, preferences and rights, and the qualifications,
\nlimitations and restrictions, as specified in the Certificate of Designations in
\nthe form attached hereto as Annex A (the “Certificate of Designations<\/u>“).\n<\/p>\n NOW, THEREFORE, in consideration of the representations, warranties,
\ncovenants and agreements contained in this Agreement, and subject to the
\nconditions set forth herein, the parties hereto, intending to be legally bound,
\nhereby agree as follows:<\/p>\n ARTICLE I<\/p>\n Purchase and Sale; Closing<\/u><\/p>\n SECTION 1.01. Purchase and Sale of the Preferred Shares.<\/u> On the terms
\nand subject to the conditions set forth in this Agreement, at the Closing, the
\nCompany shall issue, sell and deliver to the Investor, and the Investor shall
\npurchase and acquire from the Company, 204,000 Preferred Shares for a purchase
\nprice per Preferred Share equal to $1,000, payable as set forth in Section
\n1.02(b). The purchase and sale of the Preferred Shares is referred to in this
\nAgreement as the “Preferred Share Purchase<\/u>“.<\/p>\n SECTION 1.02. Closing.<\/u><\/p>\n (a) The closing of the Preferred Share Purchase (the “Closing<\/u>“) will
\noccur on the date hereof (the “Closing Date<\/u>“) upon the execution and
\ndelivery of this Agreement at the offices of Cravath, Swaine & Moore LLP,
\nWorldwide Plaza, 825 Eighth Avenue, New York, New York 10019.<\/p>\n (b) At the Closing, (i) the Company shall deliver to the Investor a
\ncertificate representing the Preferred Shares to be sold to such Investor, duly
\nregistered in the name of the Investor, and (ii) the Investor shall pay to the
\nCompany, by wire transfer to a bank account designated in writing by the Company
\nof immediately available funds, $204,000,000.<\/p>\n ARTICLE II<\/p>\n Representations and Warranties<\/u><\/p>\n SECTION 2.01. Representations and Warranties of the Company.<\/u> Except as
\nset forth in the Company Disclosure Letter, the Company represents and warrants
\nas of the date hereof to the Investor as follows:<\/p>\n
\n (a) Organization, Standing and Corporate Power.<\/u> Each of the Company
\nand its Subsidiaries is duly organized and validly existing under the Laws of
\nits jurisdiction of organization and has all requisite corporate or other entity
\npower and authority to own or lease all of its properties and assets and to
\ncarry on its business as presently conducted. Each of the Company and its
\nSubsidiaries is duly qualified or licensed to do business and is in good
\nstanding (where such concept is recognized under applicable Law) in each U.S.
\njurisdiction where the nature of its business or the ownership, leasing or
\noperation of its properties makes such qualification or licensing necessary,
\nother than where the failure to be so qualified, licensed or in good standing
\nwould not, individually or in the aggregate, reasonably be expected to have a
\nmaterial adverse effect on the ability of the Company to consummate the
\ntransactions contemplated by this Agreement. True, correct and complete copies
\nof the Company Certificate of Incorporation (the “Company Certificate of
\nIncorporation<\/u>“) and the Amended and Restated By-Laws of the Company (the
\n“Company By-Laws<\/u>“), in each case, as in effect on the date of this
\nAgreement, have been made available to the Investor.<\/p>\n (b) Capitalization.<\/u><\/p>\n (i) The authorized capital stock of the Company consists of 300,000,000
\nshares of common stock, par value $.001 per share (the “Company Common
\nStock<\/u>“) and 5,000,000 shares of preferred stock, par value $.001 per share
\n(the “Company Preferred Stock<\/u>“), of which 300,000 shares of Company
\nPreferred Stock were designated by the board of directors of the Company (the
\n“Board<\/u>“) as Series I Preferred Stock and are issuable upon exercise of
\nthe rights (the “Company Rights<\/u>“) issued pursuant to the Rights Plan. At
\nthe close of business on July 31, 2011, (i) 60,200,526 shares of Company Common
\nStock (which includes 2,299,919 shares of Company Common Stock granted pursuant
\nto a Company Stock Plan that is subject to vesting or other forfeiture
\nconditions or repurchase by the Company (such shares, the “Company Restricted
\nStock<\/u>“)) were issued and outstanding, (ii) 5,623,642 shares of Company
\nCommon Stock were reserved and available for issuance pursuant to the 2009
\nIncentive Plan of the Company (the “2009 Plan<\/u>“), the 2004 Incentive Plan
\nof the Company, as amended (the “2004 Plan<\/u>“), and the Amended and
\nRestated 1996 Incentive Plan of the Company (the “1996 Plan<\/u>“, and
\ncollectively with the 2009 Plan and the 2004 Plan, the “Company Stock
\nPlans<\/u>“), of which 3,812,294 shares of Company Common Stock were subject to
\noutstanding options to acquire shares of Company Common Stock (such options, the
\n“Company Stock Options<\/u>“), and 581,669 shares of Company Common Stock were
\nsubject to outstanding restricted stock units (such restricted stock units, the
\n“Company RSUs<\/u>“), (iii) 32,740,018 shares of Company Common Stock were
\nowned by the Company as treasury stock, (iv) no shares of Company Preferred
\nStock were outstanding and (v) 300,000,000 shares of Company Preferred Stock
\nwere reserved for issuance in connection with the Company Rights. Except as set
\nforth above, at the close of business on July 31, 2011, no shares of capital
\nstock or other voting securities of or equity interests in the Company were
\nissued, reserved for issuance or outstanding and no securities of the Company or
\nany of its Subsidiaries convertible into or exchangeable or exercisable for
\nshares of capital stock or other voting securities of or equity interests in the
\nCompany were issued or outstanding. Since July 31, 2011, to the date of this
\nAgreement, (x) there have been no issuances by the Company of shares of capital
\nstock or other voting securities of or equity interests in the Company, other
\nthan issuances of shares upon the vesting of Company Restricted Stock pursuant
\nto the Company Stock Plans or shares of Company Common Stock pursuant to Company
\nStock Options, Company RSUs, or the Company153s Amended and Restated Savings Plan
\n(the “Company 401(k) Plan<\/u>“) and (y) there have been no issuances by the
\nCompany of options, warrants, rights, convertible or exchangeable securities,
\nstock-based performance units or other rights to acquire shares of capital stock
\nof, or other equity or voting interests in, the Company or other rights that
\ngive the holder thereof any economic interest of a nature accruing to the
\nholders of Company Common Stock, other than issuances pursuant to the Company
\n401(k) plan in accordance with its terms. All outstanding shares of Company
\nCommon Stock are, and all such shares that may be issued prior to the date
\nhereof will be, when issued, duly authorized, validly issued, fully paid and
\nnonassessable and not subject to preemptive rights. There are no bonds,
\ndebentures, notes or other indebtedness of the Company having the right to vote
\n(or convertible into, or exchangeable for, securities having the right to vote)
\non any matters on which holders of Company Common Stock may vote (“Voting
\nCompany Debt<\/u>“). Except for any obligations pursuant to this Agreement or as
\notherwise set forth above in this Section 2.01(b), as of the date of this
\nAgreement, there are no options, warrants, rights, convertible or exchangeable
\nsecurities, stock-based performance units, Contracts or undertakings of any kind
\nto which the Company or any of its Subsidiaries is a party or by which the
\nCompany is bound (1) obligating the Company or any of its Subsidiaries to issue,
\ndeliver or sell, or cause to be issued, delivered or sold, additional shares of
\ncapital stock or other voting securities of or equity interests in, or any
\nsecurity convertible or exchangeable for any shares of capital stock or other
\nvoting securities of or equity interest in, the Company or any Voting Company
\nDebt, (2) obligating the Company or any of its Subsidiaries to issue, grant or
\nenter into any such option, warrant, right, security, unit, Contract or
\nundertaking or (3) that give any person the right to receive any economic
\ninterest of a nature accruing to the holders of Company Common Stock. There are
\nno outstanding obligations of the Company or any of its Subsidiaries to
\nrepurchase, redeem or otherwise acquire any shares of capital stock or options,
\nwarrants, rights, convertible or exchangeable securities, stock-based
\nperformance units or other rights to acquire shares of capital stock of the
\nCompany, other than pursuant to the Company Stock Plans and the Company 401(k)
\nPlan. A true, correct and complete copy of the Rights Plan as in effect on the
\ndate of this Agreement has been made available to the Investor.<\/p>\n 2<\/p>\n
\n(ii) The Company Common Stock, and the associated Company Rights thereto,
\nconstitute the only outstanding class of securities of the Company or its
\nSubsidiaries registered under the Securities Exchange Act of 1934, as amended
\n(the “Exchange Act<\/u>“).<\/p>\n (c) Authorization; Enforceability.<\/u><\/p>\n (i) The Company has all requisite corporate power and authority to execute
\nand deliver this Agreement and to consummate the transactions contemplated by
\nthis Agreement. The execution and delivery of this Agreement by the Company and
\nthe consummation of the transactions contemplated by, and compliance with the
\nprovisions of, this Agreement by the Company have been duly authorized and
\napproved by all necessary corporate action on the part of the Company. On or
\nprior to the date of this Agreement, the Board has duly adopted resolutions
\napproving this Agreement and the transactions contemplated hereby and adopting
\nthe Certificate of Designations. This Agreement has been duly executed and
\ndelivered by the Company and, assuming the due authorization, execution and
\ndelivery by the Investor, constitutes a legal, valid and binding obligation of
\nthe Company, enforceable against the Company in accordance with its terms,
\nsubject, as to enforceability, to bankruptcy, insolvency and other Laws of
\ngeneral applicability relating to or affecting creditors153 rights and to general
\nequity principles, whether considered in a proceeding at law or in equity.<\/p>\n 3<\/p>\n
\n(ii) No vote of the stockholders of the Company is required under applicable
\nLaw, under the Company Certificate of Incorporation or Company By-Laws, or under
\nany contract between the Company and any stockholder of the Company, to
\nauthorize the issuance of the Series J Preferred Stock in accordance with this
\nAgreement or to authorize the issuance of the Company Common Stock upon
\nconversion of the Series J Preferred Stock in accordance with the Certificate of
\nDesignations, as applicable.<\/p>\n (d) No Conflict.<\/u><\/p>\n (i) The Company is not in violation or default of any provision of the
\nCompany Certificate of Incorporation or the Company By-Laws. The execution and
\ndelivery by the Company of this Agreement do not, and the consummation of the
\ntransactions contemplated by this Agreement and compliance with the provisions
\nof this Agreement will not, conflict with, or result in any violation or breach
\nof, or default (with or without notice or lapse of time, or both) under, or give
\nrise to a right of termination, cancelation or acceleration of any obligation or
\nto the loss of a benefit under, or result in the creation of any Lien upon any
\nof the properties or assets of the Company or any of its Subsidiaries under any
\nprovision of (A) the Company Certificate of Incorporation or the Company By-Laws
\nor (B) (1) any loan or credit agreement, license, contract, lease, sublease,
\nindenture, note, debenture, bond, mortgage or deed of trust or other agreement,
\narrangement or understanding (a “Contract<\/u>“) to which the Company or any
\nof its Subsidiaries is a party or by which any of their respective properties or
\nassets are bound and that is material to the business of the Company and its
\nSubsidiaries, taken as a whole, or (2) any supranational, federal, national,
\nstate, provincial or local statute, law (including common law), ordinance, rule
\nor regulation of any Governmental Authority (“Law<\/u>“) that is material to
\nthe Company and its Subsidiaries, taken as a whole, or any judgment, order or
\ndecree of any Governmental Authority (“Judgment<\/u>“), in each case,
\napplicable to the Company or any of its Subsidiaries or any of their respective
\nproperties or assets, other than, in the case of such clause (B) above, any such
\nconflicts, violations, breaches, defaults, rights, losses or pledges, liens,
\ncharges, mortgages, encumbrances or security interests of any kind or nature
\n(collectively, “Liens<\/u>“) that would not, individually or in the aggregate,
\nreasonably be expected to have a material adverse effect on the ability of the
\nCompany to consummate the transactions contemplated by this Agreement.<\/p>\n (ii) Other than in connection or in compliance with the provisions of the
\nSecurities Act of 1933, as amended (the “Securities Act<\/u>“) and the
\nsecurities or blue sky laws of the various states or the Hart-Scott-Rodino
\nAntitrust Improvements Act of 1976, as amended (the “HSR Act<\/u>“) or any
\napplicable antitrust, merger or competition law, no notice to, registration,
\ndeclaration or filing with, review by, or authorization, consent, order, waiver,
\nauthorization or approval of, any governmental or regulatory (including any
\nstock exchange) authorities, agencies, courts, commissions or other entities,
\nwhether federal, state, local or foreign, or applicable self-regulatory
\norganizations (each, a “Governmental Entity<\/u>“) is necessary for the
\nconsummation by the Company of the transactions contemplated by this Agreement.\n<\/p>\n 4<\/p>\n
\n(e) Authorization of Company Preferred Stock and Company Common Stock.<\/u>
\nAs of the Closing Date, and upon the completion of the actions to be taken at
\nthe Closing, the Preferred Shares (i) will be duly authorized by all necessary
\ncorporate action on the part of the Company, (ii) will be validly issued, fully
\npaid and nonassessable, (iii) will not be subject to preemptive rights or
\nrestrictions on transfer (other than restrictions on transfer under this
\nAgreement and under applicable state and federal securities laws), (iv) will
\nhave the terms and conditions and entitle the holders thereof to the rights set
\nforth in this Agreement and in the Certificate of Designations and (v) will be
\nfree and clear of all pledges, liens, charges, mortgages, encumbrances or
\nsecurity interests of any kind or nature whatsoever (other than those created
\nunder this Agreement). The Company Common Stock issuable upon conversion of the
\nPreferred Stock has been duly and validly reserved for issuance and, upon
\nissuance, will be duly and validly issued, fully paid, and nonassessable, and
\nwill not be subject to preemptive rights or restrictions on transfer (other than
\nrestrictions on transfer under this Agreement and under applicable state and
\nfederal securities laws).<\/p>\n (f) Private Offering.<\/u> None of the Company, its Subsidiaries, their
\nAffiliates and their Representatives have, directly or indirectly, made any
\noffers or sales of the Preferred Shares or solicited any offers to buy the
\nPreferred Shares, under circumstances that would require registration of the
\nPreferred Shares under the Securities Act. None of the Company, its
\nSubsidiaries, their Affiliates and their Representatives have, directly or
\nindirectly, made any offers or sales of any security or solicited any offers to
\nbuy any security under circumstances that would cause this offering of the
\nPreferred Shares to be integrated with prior offerings by the Company for
\npurposes of the Securities Act or any applicable stockholder approval
\nprovisions, including under the rules and regulations of any exchange or
\nautomated quotation system on which any of the securities of the Company are
\nlisted or designated. None of the Company, its Subsidiaries, their Affiliates
\nand their Representatives will take any action or steps referred to in the two
\npreceding sentences that would require registration of any of the Preferred
\nShares under the Securities Act. Assuming the accuracy of the representations
\nmade by the Investor in Section 2.02, the sale and delivery of the Preferred
\nShares hereunder are exempt from the (i) registration and prospectus delivery
\nrequirements of the Securities Act and (ii) the registration and qualification
\nrequirements of all applicable securities laws of the states of the United
\nStates.<\/p>\n (g) Anti-Takeover Provisions Not Applicable.<\/u> The provisions of Section
\n203 of the General Corporation Law of the State of Delaware as they relate to
\nthe Company do not and will not apply to this Agreement or to any of the
\ntransactions contemplated hereby.<\/p>\n 5<\/p>\n
\n(h) SEC Documents; Undisclosed Liabilities; Disclosure Controls and
\nProcedures<\/u>.<\/p>\n (i) The Company has filed all material reports, schedules, forms, statements
\nand other documents with the Securities and Exchange Commission (the
\n“SEC<\/u>“) required to be filed by the Company pursuant to the Securities Act
\nor the Exchange Act since January 31, 2009 (the “SEC Documents<\/u>“). As of
\ntheir respective effective dates (in the case of SEC Documents that are
\nregistration statements filed pursuant to the requirements of the Securities
\nAct) and as of their respective dates of filing (in the case of all other SEC
\nDocuments), the SEC Documents complied in all material respects with the
\nrequirements of the Securities Act or the Exchange Act, as the case may be, and
\nthe rules and regulations of the SEC promulgated thereunder applicable thereto,
\nand except to the extent amended or superseded by a subsequent filing with the
\nSEC prior to the date of this Agreement, as of such respective dates, none of
\nthe SEC Documents contained any untrue statement of a material fact or omitted
\nto state a material fact necessary in order to make the statements therein, in
\nlight of the circumstances under which they were made, not misleading. As of the
\ndate of this Agreement, there are no outstanding or unresolved comment letters
\nreceived from the SEC or its staff. The audited consolidated financial
\nstatements and the unaudited quarterly financial statements (including, in each
\ncase, the notes thereto) of the Company included or incorporated by reference in
\nthe SEC Documents when filed complied in all material respects with the
\npublished rules and regulations of the SEC with respect thereto, have been
\nprepared in all material respects in accordance with generally accepted
\naccounting principles (“GAAP<\/u>“) (except, in the case of unaudited
\nquarterly statements, as permitted by Form 10-Q of the SEC or other rules and
\nregulations of the SEC) applied on a consistent basis during the periods
\ninvolved (except as may be indicated in the notes thereto) and fairly present in
\nall material respects the consolidated financial position of the Company and its
\nconsolidated Subsidiaries as of the dates thereof and the consolidated results
\nof their operations and cash flows for the periods then ended (subject, in the
\ncase of unaudited quarterly statements, to normal year-end adjustments).<\/p>\n (ii) Except for matters reflected or reserved against in the most recent
\nconsolidated balance sheet of the Company (or the notes thereto) included in the
\nSEC Documents, neither the Company nor any of its Subsidiaries has any
\nliabilities (whether absolute, accrued, contingent, fixed or otherwise) of any
\nnature that would be required under GAAP, as in effect on the date of this
\nAgreement, to be reflected on a consolidated balance sheet of the Company
\n(including the notes thereto), except liabilities that (A) were incurred since
\nthe date of such balance sheet in the ordinary course of business, (B) are
\nincurred in connection with the transactions contemplated by this Agreement or
\n(C) would not, individually or in the aggregate, reasonably be expected to have
\na material adverse effect on the business, assets or properties of the Company
\nand its Subsidiaries, taken as a whole. There are no unconsolidated Subsidiaries
\nof the Company or any off-balance sheet arrangements of any type (including any
\noff-balance sheet arrangement required to be disclosed pursuant to Item
\n303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not
\nbeen so described in the SEC Documents nor any obligations to enter into any
\nsuch arrangements.<\/p>\n (iii) The Company has established and maintains disclosure controls and
\nprocedures and a system of internal controls over financial reporting (as such
\nterms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under
\nthe Exchange Act) as required by Rule 13a-15 under the Exchange Act. Since
\nJanuary 31, 2009, neither the Company nor the Company153s independent registered
\npublic accounting firm, has identified or been made aware of “significant
\ndeficiencies” or “material weaknesses” (as defined by the Public Company
\nAccounting Oversight Board) in the design or operation of the Company153s internal
\ncontrols and procedures which would reasonably be expected to adversely affect
\nin any material respect the Company153s ability to record, process, summarize and
\nreport financial data, in each case which has not been subsequently remediated.
\nTo the knowledge of the Company, there is no fraud, whether or not material,
\nthat involves the Company153s management or other employees who have a significant
\nrole in the preparation of financial statements or the internal control over
\nfinancial reporting utilized by the Company and its Subsidiaries.<\/p>\n 6<\/p>\n
\nSECTION 2.02. Representations and Warranties of the Investor<\/u>. The
\nInvestor hereby represents and warrants to the Company that as of the date
\nhereof:<\/p>\n (a) Organization and Authority.<\/u> The Investor is duly organized,
\nvalidly existing and in good standing under the Laws of its jurisdiction of
\norganization and has all requisite corporate power and authority to carry on its
\nbusiness as presently conducted<\/p>\n (b) Authorization; Enforceability.<\/u> The Investor has all requisite
\ncorporate power and authority to execute and deliver this Agreement and to
\nconsummate the transactions contemplated by this Agreement. The execution and
\ndelivery of this Agreement by the Investor and the consummation of the
\ntransactions contemplated by and compliance with the provisions of, this
\nAgreement, by the Investor have been duly authorized by all necessary corporate
\naction on the part of the Investor (and, as of the date of this Agreement, the
\nresolutions giving effect to such corporate actions have not been rescinded,
\nmodified or withdrawn in any way). This Agreement has been duly executed and
\ndelivered by the Investor and, assuming the due authorization, execution and
\ndelivery by the Company, constitutes a legal, valid and binding obligation of
\nthe Investor, enforceable against the Investor in accordance with its terms,
\nsubject, as to enforceability, to bankruptcy, insolvency and other Laws of
\ngeneral applicability relating to or affecting creditors153 rights and to general
\nequity principles.<\/p>\n (c) No Conflict.<\/u> The execution and delivery by the Investor of this
\nAgreement do not, and the transaction contemplated by this Agreement and
\ncompliance with the provisions of this Agreement will not, conflict with, or
\nresult in any violation or breach of, or default (with or without notice or
\nlapse of time, or both) under, or give rise to a right of termination,
\ncancellation or acceleration of any obligation or to the loss of a benefit
\nunder, or result in the creation of any Lien upon any of the properties or
\nassets of the Investor under, the certificate of incorporation or bylaws, or
\nsimilar organizational documents, of the Investor, any provision of any Contract
\nto which the Investor or any of its Subsidiaries is a party or by which any of
\nits properties or assets are bound and that is material to the business of the
\nInvestor and its Subsidiaries, taken as a whole, or any Law that is material to
\nthe Investor and its Subsidiaries, taken as a whole, or Judgment, in each case,
\napplicable to the Investor or any of its Subsidiaries or any of its properties
\nor assets, other than any such conflicts, violations, breaches, defaults,
\nrights, losses or Liens that would not, individually or in the aggregate,
\nreasonably be expected to have a material adverse effect on the Investor153s
\nability to consummate the transactions contemplated by this Agreement.<\/p>\n (d) Consents.<\/u> Other than in connection or in compliance with the
\nprovisions of the Securities Act and the securities or blue sky laws of the
\nvarious states or the HSR Act or any applicable antitrust, merger or competition
\nlaw, no notice to, registration, declaration or filing with, review by, or
\nauthorization, consent, order, waiver, authorization or approval of any
\nGovernmental Entity is necessary for the consummation by the Investor of the
\ntransactions contemplated by this Agreement.<\/p>\n 7<\/p>\n
\n(e) Purchase for Investment.<\/u> The Investor acknowledges that the
\nPreferred Shares have not been registered under the Securities Act or under any
\nstate securities laws. The Investor (i) is acquiring the Preferred Shares
\npursuant to an exemption from registration under the Securities Act solely for
\ninvestment with no present intention or view to distribute any of the Preferred
\nShares to any person in violation of the Securities Act, (ii) will not sell or
\notherwise dispose of any of the Preferred Shares, except in compliance with the
\nregistration requirements or exemption provisions of the Securities Act and any
\nother applicable securities laws, (iii) has such knowledge and experience in
\nfinancial and business matters and in investments of this type that it is
\ncapable of evaluating the merits and risks of its investment in the Preferred
\nShares and of making an informed investment decision, and has conducted an
\nindependent review and analysis of the business and affairs of the Company that
\nit considers sufficient and reasonable for purposes of its making its investment
\nin the Preferred Shares, and (iv) is an “accredited investor” (as such term is
\ndefined in Rule 501 of Regulation D promulgated under the Securities Act.<\/p>\n (f) Ownership<\/u>. Neither the Investor nor any of its Affiliates
\nbeneficially owns (within the meaning of Section 13 of the Exchange Act and the
\nrules and regulations promulgated thereunder) any shares of Company Common
\nStock, or is a party to any Contract (other than this Agreement) for the purpose
\nof acquiring, holding, voting or disposing of, any shares of Company Common
\nStock.<\/p>\n (g) Brokers and Finders.<\/u> There is no investment banker, broker, finder
\nor other intermediary that has been retained by or is authorized to act on
\nbehalf of the Investor or its Affiliates that is entitled to any fee or
\ncommission from the Company or any of its Subsidiaries.<\/p>\n
\n ARTICLE III<\/p>\n Covenants<\/u><\/p>\n SECTION 3.01. Further Assurances.<\/u> (a) Each of the Investor and the
\nCompany will cooperate and consult with the other and use commercially
\nreasonable efforts to prepare and file all necessary documentation, to effect
\nall necessary applications, notices, petitions, filings and other documents, and
\nto obtain all necessary permits, consents, orders, approvals and authorizations
\nof, or any exemption by, all Governmental Entities, and expiration or
\ntermination of any applicable waiting periods, necessary or advisable to
\nconsummate the transactions contemplated by this Agreement (including, for the
\navoidance of doubt, taking such actions as are reasonably necessary to cause any
\ncondition to the effectiveness of the voting rights of the Series J Preferred
\nStock to be satisfied), and to perform the covenants contemplated by this
\nAgreement, it being agreed that each of the Company and the Investor shall make
\nor file any such applications, notices, petitions or filings required to be made
\nby it with Governmental Entities in connection with the transactions
\ncontemplated by this Agreement as promptly as practicable, and in any event not
\nlater than the date that is 15 Business Days, after the date of this Agreement.
\nEach party shall execute and deliver after the Closing such further
\ncertificates, agreements and other documents and take such other actions as the
\nother party may reasonably request to consummate or implement such transactions
\nor to evidence such events or matters. In particular, each party will use its
\ncommercially reasonable efforts to promptly obtain, and will cooperate as may
\nreasonably be requested by the other party and use its commercially reasonable
\nefforts to help the other party promptly obtain or submit, as the case may be,
\nas promptly as practicable, the approvals and authorizations of, filings and
\nregistrations with, and notifications to, or expiration or termination of any
\napplicable waiting period, under the HSR Act or any applicable antitrust, merger
\nor competition law for the Investor to be able to convert the Preferred Shares
\ninto Company Common Stock and to otherwise vote the Preferred Shares on an
\nas-converted basis (collectively, “HSR Clearance<\/u>“). Notwithstanding any
\ncovenants of the parties set forth herein, none of the parties hereto will be
\nrequired to take any action requiring, or enter into any settlement,
\nundertaking, condition, consent decree, stipulation or other agreement with any
\nGovernmental Entity that requires such party or any of its Subsidiaries or
\nAffiliates to (x) hold separate (in trust or otherwise), divest itself or
\notherwise rearrange the composition of any assets, businesses or interests of
\nsuch party or any of its Subsidiaries or Affiliates or imposes any limitations
\non such person153s freedom of action with respect to future acquisitions of assets
\nor with respect to any existing or future business or activities or on the
\nenjoyment of the full rights of ownership, possession and use of any asset now
\nowned or hereafter acquired by any such person (including any securities of the
\nLiberty Parties or of the Company and the voting and other rights related to
\nownership thereof), (y) agree to any other conditions or requirements or to take
\nany other actions that are adverse or burdensome or would reasonably be expected
\nto adversely affect such person, in order to satisfy any objection of any
\nGovernmental Entity or any other person or (z) incur any material financial
\nobligation imposed by any Governmental Entity. The parties agree that prior to
\nthe later to occur of (A) receipt of HSR Clearance and (B) the 2011 Annual
\nMeeting Completion Date, the Investor shall have no right to convert shares of
\nSeries J Preferred Stock owned by it into Company Common Stock. Each of the
\nInvestor and the Company will have the right to review in advance, and to the
\nextent practicable each will consult with the other, in each case subject to
\napplicable Laws relating to the exchange of information, with respect to all the
\ninformation relating to the other party, and any of their respective
\nSubsidiaries, which appears in any filing made with, or written materials
\nsubmitted to, any third party or any Governmental Entity in connection with the
\ntransactions contemplated by this Agreement. In exercising the foregoing right,
\neach of the parties hereto agrees to act reasonably and as promptly as
\npracticable. Each party hereto agrees to keep the other party apprised of the
\nstatus of matters relating to completion of the transactions contemplated
\nhereby. The Investor and the Company shall promptly furnish each other, to the
\nextent permitted by applicable Laws, with copies of written communications
\nreceived by them or their Subsidiaries from, or delivered by any of the
\nforegoing to, any Governmental Entity in respect of the transactions
\ncontemplated by this Agreement.<\/p>\n (b) The Company shall give prompt written notice to the Liberty Parties upon
\nbecoming aware of any Claim commenced or, to the knowledge of the Company, to
\nwhich the Company is or may become a party (including any such Claim in the
\nright of the Company) (x) relating to or involving this Agreement, the
\nCertificate of Designations or the transactions contemplated hereby, or (y)
\nseeking to enjoin, restrain, restrict, limit or prohibit the transactions
\ncontemplated hereby or any of the rights, privileges or preferences to which the
\nHolders of the Series J Preferred Stock are entitled as set forth in this
\nAgreement or the Certificate of Designations. Without limiting its obligations
\nunder Section 5.07, the Company shall give the Liberty Parties the opportunity
\nto participate in (but not control) the defense and settlement of any such
\nClaims and the Company agrees to use, and to cause its Affiliates, directors and
\nofficers to use, its commercially reasonable efforts to defend or contest any
\nsuch Claim, subject to the right of the Company to settle such Claim in
\ncompliance with Section 5.07 of this Agreement. The Liberty Parties will
\ncooperate with the Company in its defense of such Claims as the Company may
\nreasonably request.<\/p>\n 9<\/p>\n
\nSECTION 3.02. Expenses.<\/u> Except as otherwise provided in this
\nAgreement, each party shall bear and pay its own costs, fees and expenses
\nincurred by it in connection with this Agreement and the transactions
\ncontemplated by this Agreement.<\/p>\n SECTION 3.03. Confidentiality.<\/u> The Investor hereby agrees to keep
\nconfidential and to cause its employees, officers, directors, Affiliates and
\nRepresentatives to keep confidential any and all confidential information of the
\nCompany, including non-public information relating to the Company153s finances and
\nresults, trade secrets, know-how, customers, business plans, marketing
\nactivities, financial data and other business affairs that was disclosed by the
\nCompany or its Representatives on or prior to the date of this Agreement
\npursuant to the terms of the confidentiality agreement dated December 6, 2010
\nbetween the Company and the Investor (the “Confidentiality Agreement<\/u>“).\n<\/p>\n ARTICLE IV<\/p>\n Additional Agreements<\/u><\/p>\n SECTION 4.01. Consent Rights.<\/u> (a) Following the receipt of HSR
\nClearance, for so long as the Liberty Parties beneficially own at least 102,000
\nshares of Series J Preferred Stock, in addition to any other vote or consent of
\nthe Company153s stockholders required by law or by the Company Certificate of
\nIncorporation, the Company shall not, and shall cause its Subsidiaries not to,
\nas applicable, without the affirmative vote or written consent of the Liberty
\nParties who are the record holders of the shares of Series J Preferred Stock at
\nsuch time (which consent, except as expressly provided below, may be given or
\nwithheld, or made subject to such conditions as are determined by the Liberty
\nParties, in their sole discretion):<\/p>\n (i) (A) amend, alter or repeal any provision of the Certificate of
\nDesignations or any other instrument establishing and designating the Series J
\nPreferred Stock, or (B) amend, alter or repeal the Company Certificate of
\nIncorporation or the Company By-Laws, any resolution of the Board or any other
\ninstrument establishing and designating preferred stock of the Company (other
\nthan the Series J Preferred Stock) or any Junior Stock and determining the
\nrelative rights, privileges and preferences thereof, if, in the case of clause
\n(B), such action would have an adverse effect on the rights, privileges or
\npreferences of the Series J Preferred Stock, including the conversion rights
\nthereof;<\/p>\n (ii) unless full dividends on all outstanding shares of the Series J
\nPreferred Stock have been declared and paid including, for the avoidance of
\ndoubt, any amounts of accrued and unpaid dividends which have been added to the
\nLiquidation Preference Amount pursuant to clause (ii) of the definition thereof
\nin the Certificate of Designations, or declared and a sum sufficient for the
\npayment of those dividends has been set aside for the benefit of the holders
\nthereof on the applicable Dividend Record Date, declare or pay any dividend on,
\nor make any distributions relating to, Junior Stock or Parity Stock (including
\npursuant to Section 4.01(a)(iii)) or redeem, purchase or acquire for value any
\n(x) Junior Stock or Parity Stock, (y) equity securities of any Subsidiary which
\nare held by a person other than a Subsidiary or (z) any options, warrants or
\nother rights to acquire such securities, other than: (A) purchases, redemptions
\nor other acquisitions of shares of Junior Stock or Parity Stock in connection
\nwith any employment contract, benefit plan or other similar arrangement with or
\nfor the benefit of employees, officers, directors or consultants; (B) purchases
\nof shares of Junior Stock pursuant to a contractually binding requirement to buy
\nstock, including under a contractually binding stock repurchase plan,
\nprovided<\/u> such Contract or plan was entered into prior to any default by
\nthe Company of its obligations to pay dividends on the Series J Preferred Stock;
\n(C) as a result of an exchange or conversion of any class or series of Junior
\nStock, or the securities of another company, for any other class or series of
\nJunior Stock; (D) the purchase of fractional interests in shares of Junior Stock
\npursuant to the conversion or exchange provisions of such Junior Stock or the
\nsecurity being converted or exchanged; (E) distributions of Junior Stock or
\nrights to purchase Junior Stock (subject to clause (iii) of this Section
\n4.01(a)) or (F) any exchange of Junior Stock for rights issued pursuant to the
\nRights Plan or any successor stockholder rights plan;<\/p>\n 10<\/p>\n
\n(iii) distribute (by way of dividend, share distribution, exchange,
\nredemption, recapitalization or similar transaction) securities of any entity
\nholding a significant portion of the assets and business of a Major Division,
\nincluding by way of spin-off, split-off or other distribution transaction;<\/p>\n (iv) authorize, designate or issue any Senior Stock or Parity Stock;<\/p>\n (v) enter into, or permit any Subsidiary to enter into, any agreement, or any
\nmodification or amendment to an existing agreement, which, in the absence of a
\ndefault under such agreement, would by its terms prevent the Issuer from fully
\nperforming its obligations with respect to the Series J Preferred Stock;<\/p>\n (vi) consolidate with, or merge with or into, or enter into a business
\ncombination or similar extraordinary transaction with any person or entity, or
\neffect a statutory exchange of securities of the Company with another person or
\nentity (any of the foregoing, a “Specified Transaction<\/u>“), unless (A) in
\nsuch Specified Transaction, the outstanding shares of Series J Preferred Stock
\nare to be converted into or exchanged for preferred stock issued by the
\nsurviving corporation or other continuing entity in such Specified Transaction
\n(or, if the surviving entity is the Company, remain outstanding without any
\nchanges to the terms thereof, except as otherwise required pursuant to the
\nCertificate of Designations); provided<\/u>, that in the event the holders of
\nCompany Common Stock will receive in such Specified Transaction securities of an
\nissuer other than such surviving or continuing entity, such consent will be
\nrequired unless the Series J Preferred Stock is converted into preferred stock
\nof such other issuer having such rights, powers and preferences equivalent to
\nthe Series J Preferred Stock and otherwise reasonably acceptable to the Liberty
\nParties, or (B) immediately prior to the effective date of such Specified
\nTransaction, the Company offers to purchase all outstanding shares of Series J
\nPreferred Stock for cash in an amount equal to the amount the Company would be
\nrequired to offer to purchase such shares of Series J Preferred Stock in a
\nChange of Control Sale (as defined in the Certificate of Designations);<\/p>\n 11<\/p>\n
\n(vii) sell, transfer, lease, license or otherwise dispose of all or
\nsubstantially all of the assets constituting a Major Division;<\/p>\n (viii) fundamentally change the business of the Company and its Subsidiaries
\nfrom the business of the Company and its Subsidiaries as presently conducted, or
\nmake any investment (including by way of acquisition) having a purchase or
\nacquisition price in excess of $50,000,000 where the business being conducted by
\nthe investee or the acquired business constitutes a departure from the current
\nlines of business of the Company and its Subsidiaries;<\/p>\n (ix) enter into (or permit any Subsidiary to enter into) any Contract
\n(including any amendment or modification thereto or extension thereof) with (A)
\nany director or executive officer of the Company, (B) any person or group
\nbeneficially owning in excess of 5% of the outstanding shares of Company Common
\nStock, or (C) any Affiliate or family member of any of the foregoing, other than
\n(1) any Contract between or among (i) the Company and any of its Subsidiaries or
\n(ii) two or more of the Company153s Subsidiaries and (2) any of the foregoing that
\nare not required to be disclosed pursuant to Item 404 of Regulation S-K under
\nthe Exchange Act (including executive compensation matters); provided<\/u>,
\nhowever<\/u>, that the affirmative vote or written consent of such Liberty
\nParties shall not be unreasonably withheld, conditioned or delayed under this
\nclause (ix); or<\/p>\n (x) amend the Rights Plan in such a way, or adopt or enter into any new or
\nsuccessor shareholder rights agreement or plan having provisions which would
\nadversely effect the powers, preferences, rights or privileges of the holders of
\nSeries J Preferred Stock, including upon conversion of the Preferred Shares,
\nrelative to the Rights Plan as in effect as of the Closing.<\/p>\n (b) Following a conversion of the Series J Preferred Stock pursuant to
\nSection 9 of the Certificate of Designations, for so long as the Liberty Parties
\nbeneficially own at least the number of shares of Company Common Stock that the
\nLiberty Parties would have received upon the conversion of 102,000 shares of
\nSeries J Preferred Stock, then the Company will not, and will not permit any
\nSubsidiary to, take any of the actions specified in clauses (iii), (vii), (viii)
\nand (ix) of Section 4.01(a) unless it shall have received the affirmative vote
\nor written consent of the Liberty Parties prescribed by Section 4.01(a).<\/p>\n (c) Following the date of this Agreement but prior to the receipt of HSR
\nClearance, the Company shall not, and shall cause its Subsidiaries not to, take
\nany action described above in Section 4.01(a) that would require the affirmative
\nvote or written consent of the Liberty Parties following the receipt of HSR
\nClearance.<\/p>\n (d) The Liberty Parties shall respond as promptly as reasonably practicable
\nto any request for consent under this Section 4.01. In the event that the
\nLiberty Parties do not respond within five Business Days of the receipt by the
\nLiberty Parties of a request for consent for a specific Contract or transaction
\nunder clause (ix) of Section 4.01(a) or pursuant to Section 4.01(b) (to the
\nextent relating to a matter described in clause (ix) of Section 4.01(a)), which
\nis accompanied by reasonably detailed information with respect to the matter for
\nwhich consent is being requested, then the Liberty Parties shall be deemed to
\nhave consented to such matter.<\/p>\n 12<\/p>\n
\n(e) The consent rights provided for in Sections 4.01(a) and 4.01(b) and the
\npre-emptive rights provided for in Section 4.03 shall terminate permanently upon
\nthe Liberty Parties ceasing to beneficially own at least the minimum number of
\nshares of Series J Preferred Stock or Company Common Stock specified therein.\n<\/p>\n SECTION 4.02. Restrictions on Transfer.<\/u> (a) The Investor agrees that
\nit will not, and will not permit any of its Affiliates to, directly or
\nindirectly sell, transfer, pledge, encumber, assign, loan, or otherwise dispose
\nof (“Transfer<\/u>“) any portion or interest of any Series J Preferred Stock
\nor any other securities of the Company acquired as a result of the ownership of
\nthe Series J Preferred Stock or Company Common Stock issued upon conversion of
\nshares of Series J Preferred Stock to any person prior to February 18, 2013 (the
\nperiod from the Issue Date until such date, the “Holding Period<\/u>“) without
\nthe prior written consent of the Company (which consent may be given or withheld
\nor made subject to such conditions as are determined by the Company in its sole
\ndiscretion), other than (i) to any Affiliate controlled by or under common
\ncontrol with a Liberty Party, or to any Liberty Party in connection with a
\nLiberty Distribution Transaction, in each case provided that the transferee
\nagrees in writing for the benefit of the Company (in form and substance
\nreasonably satisfactory to the Company) to be bound by the terms of this
\nAgreement, (ii) pursuant to a tender or exchange offer recommended by the Board,
\n(iii) pursuant to a merger, consolidation, business combination or similar
\nextraordinary transaction, (iv) any bona fide pledge arrangements entered into
\nin connection with a secured lending transaction with a bank or financial
\ninstitution that regularly engages in secured lending transactions as a lender,
\n(v) to the Company or (vi) pursuant to any other transaction approved by the
\nBoard. Any purported Transfer which is not in accordance with the terms and
\nconditions of this Section 4.02(a) shall be, to the fullest extent permitted by
\nlaw, null and void ab initio <\/em>and, in addition to other rights and
\nremedies at law and in equity, the Company shall be entitled to injunctive
\nrelief enjoining the prohibited action. Each Person to whom a Transfer is made
\nin compliance with this Section 4.02(a) (other than pursuant to clauses (ii)
\nthrough (vi) hereof) shall be included in the term “Investor” from and after the
\ndate of such Transfer provided that the transferee agrees in writing for the
\nbenefit of the Company (in form and substance reasonably satisfactory to the
\nCompany) to be bound by the terms of this Agreement. The restrictions set forth
\nin this Section 4.02(a) shall terminate in connection with a Change of Control.\n<\/p>\n(b) Investor agrees that prior to the end of the Holding Period it shall not,
\ndirectly or indirectly, enter into any Hedging Transaction; provided<\/u>
\nthat any pledge permitted under Section 4.02(a)(iv) will not constitute a
\nHedging Transaction for purposes of this Section 4.02(b).<\/p>\n (c) Any Transfer of Series J Preferred Stock shall be subject to the
\nrequirements of Section 4.04.<\/p>\n 13<\/p>\n
\nSECTION 4.03. Pre-emptive Rights.<\/u> (a) For so long as the Liberty
\nParties beneficially own at least 102,000 shares of Series J Preferred Stock, at
\nany time that the Company makes any public or nonpublic offering or sale of any
\nshares of capital stock, including Company Common Stock, or other securities
\nconvertible into, or exercisable or exchangeable for, shares of capital stock or
\nother equity interests in the Company (the “New Securities<\/u>“) (other than:
\n(i) pursuant to any present or future employee, director or consultant benefit
\nplan or program of or assumed by the Company or any of its Subsidiaries, (ii)
\nthe issuance of any shares of Company Common Stock pursuant to any exercise of
\nany option, warrant, right, or exchangeable or convertible security, in each
\ncase, outstanding as of August 18, 2011, (iii) in connection with any merger,
\nconsolidation, business combination or any similar extraordinary transaction,
\n(iv) under the Rights Plan or any successor shareholder rights agreement or plan
\nor (v) for the avoidance of doubt, the issuance of shares of Company Common
\nStock in connection with a subdivision or split of the Company Common Stock),
\neach Liberty Party holding shares of Series J Preferred Stock at such time shall
\nbe afforded the opportunity to acquire from the Company for the same price (net
\nof any underwriting discounts or sales commissions) and on the same terms (other
\nthan terms that cannot reasonably be satisfied or applicable to the Liberty
\nParties) as such New Securities are proposed to be offered to others (or, to the
\nextent such New Securities are offered for consideration (or the exercise price
\nof which is to be paid in consideration) other than cash, the cash equivalent
\nthereof) an amount of New Securities up to the aggregate amount of New
\nSecurities to be offered or sold (including those to be sold to the Liberty
\nParties pursuant to this Section 4.03) multiplied by such Liberty Party153s
\nOwnership Percentage.<\/p>\n (b) In the event the Company proposes to offer or sell New Securities, it
\nshall give each Liberty Party holding shares of Series J Preferred Stock at such
\ntime written notice of its intention, describing the type of New Security, price
\n(or range of prices), anticipated amount of securities, timing, and other terms
\nupon which the Company proposes to offer the same, no later than two Business
\nDays, as the case may be, after the initial filing of a registration statement
\nwith the SEC with respect to an underwritten public offering, after the
\ncommencement of marketing with respect to a Rule 144A offering or after the
\nCompany proposes to pursue any other offering. Each such Liberty Party shall
\nhave 10 Business Days from the date of receipt of such a notice to notify the
\nCompany in writing that it intends to exercise its rights provided in this
\nSection 4.03 and, the amount of New Securities such Liberty Party desires to
\npurchase, up to the maximum amount calculated pursuant to Section 4.03(a). Such
\nnotice shall constitute a nonbinding indication of interest of such Liberty
\nParty to purchase the amount of New Securities so specified at the price and
\nother terms set forth in the Company153s notice to it. The failure of a Liberty
\nParty to respond within such 10 Business Day period shall be deemed to be a
\nwaiver of such Liberty Party153s rights under this Section 4.03 only with respect
\nto the offering described in the applicable notice.<\/p>\n (c) If a Liberty Party exercises its rights provided in this Section 4.03,
\nthe closing of the purchase of the New Securities with respect to which such
\nright has been exercised shall take place within 90 days after the giving of
\nnotice of such exercise, which period of time shall be extended for a maximum of
\n180 days in order to comply with applicable Laws and regulations (including
\nreceipt of any applicable regulatory or stockholder approvals). The Company and
\neach Liberty Party exercising its rights under Section 4.03 will use
\ncommercially reasonable efforts to secure any regulatory or stockholder
\napprovals or other consents, and to comply with any law or regulation necessary
\nin connection with the offer, sale and purchase of, such New Securities.<\/p>\n 14<\/p>\n
\n(d) In the event that a Liberty Party fails to exercise its rights provided
\nin this Section 4.03 within such 10-Business Day period or, if so exercised, a
\nLiberty Party is unable to consummate such purchase within the time period
\nspecified in Section 4.03(c) because of such Liberty Party153s failure to obtain
\nany required regulatory or stockholder consent or approval, the Company shall
\nthereafter be entitled (during the period of 90 days following the conclusion of
\nthe applicable period) to sell or enter into an agreement (pursuant to which the
\nsale of the New Securities covered thereby shall be consummated, if at all,
\nwithin 90 days from the date of said agreement) to sell the New Securities not
\nelected to be purchased pursuant to this Section 4.03 by such Liberty Party or
\nwhich such Liberty Party is unable to purchase because of such failure to obtain
\nany such consent or approval, at a price no less than that offered to the
\nLiberty Parties, and otherwise upon terms no more favorable to the purchasers of
\nsuch securities than were specified in the Company153s notice to the Liberty
\nParties. Notwithstanding the foregoing, if such sale is subject to the receipt
\nof any regulatory or stockholder approval or consent or the expiration of any
\nwaiting period, the time period during which such sale may be consummated shall
\nbe extended until the expiration of 10 Business Days after all such approvals or
\nconsents have been obtained or waiting periods expired, but in no event shall
\nsuch time period exceed 270 days from the date of the applicable agreement with
\nrespect to such sale. In the event the Company has not sold the New Securities
\nor entered into an agreement to sell the New Securities within such 90-day
\nperiod (or sold and issued New Securities in accordance with the foregoing
\nwithin 90 days from the date of such agreement (as such period may be extended
\nin the manner described above for a period not to exceed 270 days from the date
\nof such agreement), the Company shall not thereafter offer, issue or sell such
\nNew Securities without first offering such securities to the Liberty Parties in
\nthe manner provided in this Section 4.03.<\/p>\n (e) In the case of the offering of New Securities for a consideration in
\nwhole or in part other than cash, including securities acquired in exchange
\ntherefor (other than securities by their terms so exchangeable), the
\nconsideration other than cash shall be deemed to be the fair value thereof as
\ndetermined in good faith by the Board; provided<\/u>, however<\/u>, that
\nsuch fair value as determined by the Board shall not exceed the aggregate market
\nprice of the securities being offered as of the date the Board authorizes the
\noffering of such securities.<\/p>\n (f) Notwithstanding anything to the contrary in this Section 4.03, the
\nLiberty Parties shall not have the right to purchase New Securities in an amount
\nthat would cause the Liberty Parties153 beneficial ownership (in each case, as
\ndetermined in accordance with the Rights Plan) of Company Common Stock, in the
\naggregate, to exceed 20% of the Outstanding Common Shares (as defined in the
\nRights Plan) .<\/p>\n SECTION 4.04. Initial Election of Directors.<\/u> Pursuant to Section 12(b)
\nof the Certificate of Designations, immediately following the Liberty Parties153
\nreceipt of HSR Clearance, the registered holders of the Series J Preferred Stock
\nwill elect Messrs. Gregory B. Maffei and Mark Carleton to the Board. Registered
\nholders of Series J Preferred Stock shall only exercise their rights pursuant to
\nSection 12(b) of the Certificate of Designations to elect director nominees that
\nhave been approved by the Corporate Governance and Nominating Committee of the
\nBoard (such approval not to be unreasonably withheld, conditioned or delayed).
\nAs a condition to any Transfer of shares of Series J Preferred Stock, the
\nLiberty Party that is the transferor shall obtain from the transferee a written
\nagreement (of which the Company shall be a beneficiary) to cast all votes which
\nsuch transferee is entitled to cast on the election of directors pursuant to
\nSection 12(b) of the Certificate of Designations in a manner consistent with
\nthis Section 4.04, only for the director nominees for which the Liberty Parties
\nholding shares of Series J Preferred Stock vote and otherwise comply with this
\nSection 4.04.<\/p>\n 15<\/p>\n
\nSECTION 4.05. Observer Rights.<\/u> Each director elected pursuant to
\nSection 12(b) of the Certificate of Designations shall be entitled to attend
\nmeetings of the standing committees of the Board as a non-voting observer,
\nsubject to compliance with the applicable rules of the New York Stock Exchange.\n<\/p>\n SECTION 4.06. Survival of Rights and Obligations upon a Spin-Off.<\/u> (a)
\nIf, in the event of a Distribution Transaction (as defined in the Certificate of
\nDesignations) any Investor at the time of such Distribution Transaction elects
\nto receive Mirror Preferred Stock and Exchange Preferred Stock (each as defined
\nin the Certificate of Designations) pursuant to Section 10(c)(iii) of the
\nCertificate of Designations, the Distributed Entity (as defined in the
\nCertificate of Designations) and such Investor shall concurrently enter into an
\nagreement (a “Mirror Agreement<\/u>“) which shall provide for substantially
\nidentical rights and obligations with respect to such Investor and the
\nDistributed Entity as were provided and in effect in this Agreement with respect
\nto such Investor and the Company immediately prior to the Distribution
\nTransaction, including the rights set forth in Sections 4.01, 4.03 and 4.04 and
\nArticle V of this Agreement. Such Mirror Agreement will be in a form
\nsubstantially similar to this Agreement with such adjustments and changes
\nthereto, such as with respect to the company and stock names and the minimum
\nthreshold for the exercise of a demand request under Section 5.01, which are
\nnecessary to preserve the rights and obligations intended to be provided
\nthereby. To the extent that such Investor153s rights under this Agreement were
\nbased upon its ownership of a minimum number of shares of Series J Preferred
\nStock (including, for the avoidance of doubt, those rights pursuant to Sections
\n4.01, 4.03 and 4.04), such rights will be continued in such Mirror Agreement and
\nthe minimum number of shares of Mirror Preferred Stock required to exercise any
\nequivalent rights thereunder will be appropriately adjusted based upon, among
\nother facts, such Investor153s ownership of Series J Preferred Stock immediately
\nprior to the Distribution Transaction and reflecting the exchange of such
\nminimum number of shares of Series J Preferred Stock for Mirror Preferred Stock
\nand Exchange Preferred Stock (e.g., if an Investor is required to beneficially
\nown at least 102,000 shares of Series J Preferred Stock to exercise a right
\nhereunder, in order to exercise such right under such Mirror Agreement such
\nInvestor will be required to beneficially own at least the amount of Mirror
\nPreferred Stock that such Investor would have received if it had elected
\npursuant to Section 10(c)(iii) of the Certificate of Designations to exchange
\n102,000 shares of Series J Preferred Stock). Each Mirror Agreement will further
\nprovide that the running of any then applicable time periods (other than those
\nwith respect to the Effectiveness Period of a registration statement under
\nArticle V) pursuant to the terms of this Agreement shall be tacked for purposes
\nof the corresponding time periods in the Mirror Agreement. In addition,
\nconcurrently with the entry into such Mirror Agreement, this Agreement shall be
\namended with respect to such Investor to reflect any adjustments and changes
\nthereto, such as with respect to the minimum threshold for the exercise of a
\ndemand request under Section 5.01, which are necessary, following the issuance
\nof the Exchange Preferred Stock, to preserve the rights and obligations provided
\nin this Agreement immediately prior to the Distribution Transaction. For the
\navoidance of doubt, the obligations of each of the Distributed Entity and the
\nCompany, including with respect to the number of demand registrations which each
\nof the Distributed Entity or the Company must effect, and the rights of any
\nInvestor that receives Mirror Preferred Stock and Exchange Preferred Stock,
\nincluding with respect to its proportional representation on the board of
\ndirectors of each of the Distributed Entity and the Company, if applicable,
\nshall not be enlarged, increased or otherwise made greater with respect to
\neither the Distributed Entity or the Company than those which existed
\nimmediately prior to the Distribution Transaction, subject to the replication of
\nsuch rights and obligations with respect to the Distributed Entity as is
\ncontemplated by the Mirror Agreement.<\/p>\n 16<\/p>\n
\n(b) If any Investor holds Registrable Securities at the time of a
\nDistribution Transaction (but does not then own shares of Series J Preferred
\nStock), the Distributed Entity and such Investor shall enter into an agreement
\n(a “Limited Mirror Agreement<\/u>“) which will provide for substantially
\nidentical rights and obligations with respect to such Investor and the
\nDistributed Entity as were provided and in effect in this Agreement with respect
\nto such Investor and the Company immediately prior to the Distribution
\nTransaction, including the rights set forth in Section 4.01(b), if applicable,
\nand Article V of this Agreement. Such Limited M irror Agreement will be in a
\nform substantially similar to this Agreement with such adjustments and changes
\nthereto, such as with respect to the company and stock names and the minimum
\nthreshold for the exercise of a demand request under Section 5.01, which are
\nnecessary to preserve the rights and obligations intended to be provided
\nthereby. To the extent that such Investor153s rights under this Agreement were
\nbased upon its ownership of a minimum number of shares of Company Common Stock
\n(including, for the avoidance of doubt, those rights pursuant to Sections
\n4.01(b)), such rights will be continued in such Limited Mirror Agreement and the
\nminimum number of shares of Company Common Stock required to exercise any rights
\nthereunder will be appropriately adjusted based upon, among other facts, such
\nInvestor153s ownership of Company Common Stock immediately prior to the
\nDistribution Transaction and reflecting ownership of the number of securities of
\nsuch Distributed Entity that were received in such Distribution Transaction by a
\nholder of such minimum number of shares of Company Common Stock. Such Limited
\nMirror Agreement will further provide that the running of any then applicable
\ntime period (other than those with respect to the Effectiveness Period of a
\nregistration statement under Article V) of this Agreement shall be tacked for
\npurposes of the corresponding time periods in such agreement. For the avoidance
\nof doubt, the obligations of the Distributed Entity, including with respect to
\nthe number of demand registrations which the Distributed Entity must effect, and
\nthe rights of any Investor shall not be enlarged, increased or otherwise made
\ngreater with respect to the Distributed Entity than those which existed
\nimmediately prior to the Distribution Transaction, subject to the replication of
\nsuch rights and obligations with respect to the Distributed Entity as is
\ncontemplated by the Limited Mirror Agreement.<\/p>\n SECTION 4.07. NDA.<\/u> Paragraph 12 of the Confidentiality Agreement shall
\nterminate as of the date hereof and be of no further force and effect.<\/p>\n ARTICLE V<\/p>\n Registration Rights<\/u><\/p>\n SECTION 5.01. Demand Offering.<\/u> (a) Subject to the terms and conditions
\nof this Agreement, at any time following the Holding Period, the Investor may
\nrequest the Company to register under the Securities Act all or any portion of
\nthe shares of Registrable Securities held by the Investor for sale in the manner
\nspecified in such notice, provided that the aggregate offering price, as such
\namount is determined on the cover page of the registration statement, shall not
\nbe less than $50,000,000. Such request shall specify the intended method of
\ndisposition thereof by the Investor, including whether (i) the registration
\nrequested is for an underwritten offering and (ii) the registration statement
\ncovering such Registrable Securities shall be on Form S-3 (subject to Section
\n5.01(c)). If the Company is requested to file a registration on Form S-3 and the
\nCompany is then ASR Eligible, the Company shall use commercially reasonable
\nefforts to cause the registration statement to be an ASRS. In the event that any
\nregistration pursuant to this Section 5.01 shall be, in whole or in part, an
\nunderwritten public offering of Company Common Stock, the number of shares of
\nRegistrable Securities to be included in such an underwriting may be reduced if
\nand to the extent that the managing underwriter shall be of the opinion that
\nsuch inclusion would adversely affect the marketing of the securities to be sold
\nby the Company therein (an “Underwriter Cutback<\/u>“). The Investor may
\nrevoke a request pursuant to this Section 5.01 prior to the effective date of
\nthe corresponding registration statement; provided<\/u>, that such request
\nshall count as one of the Investor153s demand requests referred to in Section
\n5.01(b) unless the Investor reimburses the Company for all out-of-pocket
\nexpenses (including Registration Expenses) incurred by the Company relating to
\nsuch registration statement; provided<\/u>, further<\/u>, if the Investor
\nrevokes a demand pursuant to this Section 5.01(a) within 24 hours after notice
\nin writing to Investor of an Underwriter Cutback, (a) such request shall not
\ncount as one of its demand requests pursuant to Section 5.01(b) and (b) the
\nInvestor will not be responsible to reimburse the Company for any of its
\nout-of-pocket expenses, including Registration Expenses.<\/p>\n 17<\/p>\n
\n(b) Following receipt of any notice under this Section 5.01, the Company
\nshall use commercially reasonable efforts to register under the Securities Act,
\nfor public sale in accordance with the method of disposition specified in such
\nnotice from the Investor, the number of shares of Registrable Securities
\nspecified in such notice. If such method of disposition shall be an underwritten
\npublic offering, the Investor may designate the managing underwriter or
\nco-managing underwriter of such offering, subject to the approval of the
\nCompany, which approval shall not be unreasonably withheld or delayed. The
\nInvestor shall have three demand registrations pursuant to this Section 5.01;
\nprovided<\/u>, however<\/u>, that the Company shall not be obligated to
\neffect more than one such registration in any 180-day period; provided<\/u>,
\nfurther<\/u>, that such obligation shall be deemed satisfied only when a
\nregistration statement covering all shares of Registrable Securities specified
\nin notices received as aforesaid, for sale in accordance with the method of
\ndisposition specified by the Investor, shall have become effective and, (i) if
\nsuch method of disposition is a firm commitment underwritten public offering,
\nall such shares shall have been sold pursuant thereto and (ii) in any other
\ncase, such registration statement shall have remained effective throughout the
\nEffectiveness Period.<\/p>\n (c) From and after the date hereof, the Company shall use its commercially
\nreasonable efforts to qualify under the provisions of the Securities Act, and
\nthereafter, to continue to qualify at all times, for registration on Form S-3 or
\nany successor thereto. Demand registrations pursuant to this Section 5.01 shall
\nbe on Form S-3 or any similar short-form registration statement, if available.
\nIn the event the Company fails to qualify, the Company shall be required to
\neffect demand registrations pursuant to this Section 5.01 on Form S-1 or any
\nsuccessor thereto to the same extent as the Company would be required to effect
\ndemand registrations on Form S-3.<\/p>\n 18<\/p>\n
\n(d) Notwithstanding anything to the contrary contained in this Agreement, the
\nCompany shall be entitled, by providing written notice to the Investor, to
\nrequire the Investor to suspend the use of the prospectus for sales of
\nRegistrable Securities under the registration statement for a reasonable period
\nof time not to exceed 60 consecutive days or 120 days in the aggregate in any
\n12-month period (a “Suspension Period<\/u>“) if the Board determines that such
\nuse would (i) require the public disclosure of material non-public information
\nconcerning any transaction or negotiations involving the Company that would
\nmaterially interfere with such transaction or negotiations or (ii) otherwise
\nmaterially interfere with financing plans, acquisition activities or business
\nactivities of the Company, provided<\/u>, that, if at the time of receipt of
\nsuch notice the Investor shall have sold Registrable Securities (or have signed
\na firm commitment underwriting agreement with respect to the purchase of such
\nshares) and the reason for the Suspension Period is not of a nature that would
\nrequire a post-effective amendment to the Registration Statement, then the
\nIssuer shall use its commercially reasonable efforts to take such action as to
\neliminate any restriction imposed by federal securities laws on the timely
\ndelivery of such shares. Immediately upon receipt of such notice, the Investor
\nshall discontinue the disposition of Registrable Securities under such
\nregistration statement and prospectus relating thereto until such Suspension
\nPeriod is terminated. The Company agrees that it will terminate any such
\nSuspension Period as promptly as reasonably practicable and will promptly notify
\nthe Investor of such termination. After the expiration of any Suspension Period
\nand without any further request from the Investor, the Company shall as promptly
\nas reasonably practicable prepare a post-effective amendment or supplement to
\nthe registration statement or the prospectus, or any document incorporated
\ntherein by reference, or file any other required document so that, as thereafter
\ndelivered to purchasers of the Registrable Securities included therein, the
\nprospectus will not include an untrue statement of a material fact or omit to
\nstate any material fact necessary to make the statements therein, in the light
\nof the circumstances under which they were made, not misleading. If a Suspension
\nPeriod occurs during the Effectiveness Period for a registration statement, such
\nEffectiveness Period shall be extended for a number of days equal to the total
\nnumber of days during which the distribution of Registrable Securities is
\nsuspended under this Section 5.01(d). If the Company notifies the Investor of a
\nSuspension Period with respect to a registration statement requested pursuant to
\nSection 5.01 that has not yet been declared effective, (i) the Investor may by
\nnotice to the Company withdraw such request without such request counting as one
\nof the Investor153s demand requests under Section 5.01(b) and (ii) the Investor
\nwill be not responsible to reimburse the Company for any of its out-of-pocket
\nexpenses, including Registration Expenses.<\/p>\n (e) The Company shall be entitled to include in any registration statement
\nreferred to in this Section 5.01, for sale in accordance with the method of
\ndisposition specified by the Investor, shares of Company Common Stock to be sold
\nby the Company for its own account (to the extent that the inclusion of such
\nshares by the Company shall not adversely affect the offering), and shall not,
\nwithout the prior consent of the Investor, be entitled to include shares held by
\nany persons other than the Investor and its Affiliates. The Registrable
\nSecurities of the Investor shall have priority for inclusion in any firm
\ncommitment underwritten offering, ahead of all Registrable Securities held by
\nother holders included in such offering, in any Underwriter Cutback.<\/p>\n 19<\/p>\n
\nSECTION 5.02. Piggyback Registration.<\/u> Subject to the terms and
\nconditions of this Agreement, if the Company at any time following the Holding
\nPeriod (other than pursuant to Section 5.01) proposes to register any of its
\nsecurities under the Securities Act for sale to the public, whether for its own
\naccount or for the account of other security holders or both (except with
\nrespect to registration statements on Forms S-4, S-8 or another form not
\navailable for registering the Registrable Securities for sale to the public),
\neach such time it will give prompt written notice to the Investor of its
\nintention to do so (such notice to be given not less than 10 Business Days prior
\nto the anticipated filing date of the related registration statement). Upon the
\nwritten request of the Investor, received by the Company within 10 Business Days
\nafter the giving of any such notice by the Company, to register any of its
\nRegistrable Securities, the Company will use commercially reasonable efforts to
\ncause the Registrable Securities as to which registration shall have been so
\nrequested to be included in the securities to be covered by the registration
\nstatement proposed to be filed by the Company, all to the extent required to
\npermit the sale or other disposition by the Investor or its Affiliates of such
\nRegistrable Securities so registered. In the event that any registration
\npursuant to this Section 5.02 shall be, in whole or in part, an underwritten
\npublic offering of Company Common Stock, the number of shares of Registrable
\nSecurities to be included in such an underwriting may be reduced pursuant to an
\nUnderwriter Cutback. In the event that the managing underwriter or co-managing
\nunderwriters on behalf of all underwriters limits the number of shares to be
\nincluded in a registration pursuant to this Section 5.02, or shall otherwise
\nrequire a limitation of the number of shares to be included in the registration,
\nthen the Company will include in such registration (i) first, securities
\nproposed by the Company to be sold for its own account and (ii) second, shares
\nof Registrable Securities requested to be included by the Investor pursuant to
\nthis Section 5.02 and securities requested to be included by any other holders
\nof Registrable Securities, pro rata, based on the number of Registrable
\nSecurities beneficially owned by the Investor and each such other holder of
\nRegistrable Securities. Notwithstanding the foregoing provisions, the Company
\nmay withdraw any registration statement referred to in this Section 5.02 without
\nthereby incurring any liability to the Investor or its Affiliates.<\/p>\n SECTION 5.03. Expenses of Registration.<\/u> Except as specifically
\nprovided for in this Agreement, all Registration Expenses incurred in connection
\nwith any registration, qualification or compliance hereunder shall be borne by
\nthe Company. All Selling Expenses incurred in connection with any registration
\nhereunder shall be borne by the Investor. The Company shall not, however, be
\nrequired to pay for expenses of any registration proceeding begun pursuant to
\nSection 5.01, the request for which has been subsequently withdrawn by the
\nInvestor (i) unless the withdrawal is based upon material adverse information
\nconcerning the Company that the Company had not publicly disclosed in a report
\nfiled with or furnished to the SEC at least 48 hours prior to the request or
\n(ii) except as specifically provided in Section 5.01.<\/p>\n SECTION 5.04. Procedures for Registration<\/u>. If and whenever the Company
\nis required by the provisions of Sections 5.01 or 5.02 to use commercially
\nreasonable efforts to effect the registration of any shares of Registrable
\nSecurities under the Securities Act, the Company will, as expeditiously as
\npossible:<\/p>\n (a) Prepare and promptly file with the SEC a registration statement with
\nrespect to such securities and use commercially reasonable efforts to cause such
\nregistration statement to become and remain effective for the period of the
\ndistribution contemplated thereby (determined as hereinafter provided);<\/p>\n 20<\/p>\n
\n(b) Prepare and file with the SEC such amendments and supplements to such
\nregistration statement and the prospectus used in connection therewith as may be
\nnecessary to keep such registration statement effective for the period specified
\nin paragraph (a) above and comply with the provisions of the Securities Act with
\nrespect to the disposition of all Registrable Securities covered by such
\nregistration statement in accordance with the Investor153s or its Affiliates153
\nintended method of disposition set forth in such registration statement for such
\nperiod;<\/p>\n (c) Furnish to the Investor and the underwriters such number of copies of the
\nregistration statement and the prospectus included therein (including each
\npreliminary prospectus) as such persons reasonably may request in order to
\nfacilitate the public sale or other disposition of the Registrable Securities
\ncovered by such registration statement;<\/p>\n (d) Use commercially reasonable efforts to register or qualify the
\nRegistrable Securities covered by such registration statement under the
\nsecurities or “blue sky” laws of such jurisdictions as the Investor or, in the
\ncase of an underwritten public offering, the managing underwriter reasonably
\nshall request; provided<\/u>, however<\/u>, that the Company shall not for
\nany such purpose be required to qualify generally to transact business as a
\nforeign corporation in any jurisdiction where it is not so qualified or to
\nconsent to general service of process in any such jurisdiction;<\/p>\n (e) Use commercially reasonable efforts to list the Registrable Securities
\ncovered by such registration statement with any securities exchange on which the
\nCompany Common Stock is then listed;<\/p>\n (f) Provide a transfer agent and registrar for all such Registrable
\nSecurities not later than the effective date of such registration statement;\n<\/p>\n (g) Immediately notify the Investor, at any time when a prospectus relating
\nthereto is required to be delivered under the Securities Act, of the happening
\nof any event as a result of which the prospectus contained in such registration
\nstatement, as then in effect, includes an untrue statement of a material fact or
\nomits to state a material fact required to be stated therein or necessary to
\nmake the statements therein not misleading in light of the circumstances then
\nexisting, and at the request of the Investor prepare and furnish to the Investor
\na reasonable number of copies of a supplement to or an amendment of such
\nprospectus as may be necessary so that, as thereafter delivered to the
\npurchasers of such Registrable Securities, such prospectus shall not include an
\nuntrue statement of a material fact or omit to state a material fact required to
\nbe stated therein or necessary to make the statements therein not misleading in
\nthe light of the circumstances then existing;<\/p>\n (h) If the offering is underwritten and at the request of the Investor, use
\ncommercially reasonable efforts to furnish on the date that Registrable
\nSecurities are delivered to the underwriters for sale pursuant to such
\nregistration: (i) an opinion dated such date of counsel representing the Company
\nfor the purposes of such registration, addressed to the underwriters and to the
\nInvestor, stating that such registration statement has become effective under
\nthe Securities Act and that (A) to the knowledge of such counsel, no stop order
\nsuspending the effectiveness thereof has been issued and no proceedings for that
\npurpose have been instituted or are pending or contemplated under the Securities
\nAct and (B) the registration statement, the related prospectus and each
\namendment or supplement thereof comply as to form in all material respects with
\nthe requirements of the Securities Act (except that such counsel need not
\nexpress any opinion as to financial statements or financial or statistical data
\ncontained therein) and (ii) a letter dated such date from the independent public
\naccountants retained by the Company, addressed to the underwriters and to the
\nInvestor, stating that they are independent public accountants within the
\nmeaning of the Securities Act and that, in the opinion of such accountants, the
\nfinancial statements of the Company included in the registration statement or
\nthe prospectus, or any amendment or supplement thereof, comply as to form in all
\nmaterial respects with the applicable accounting requirements of the Securities
\nAct, and such letter shall additionally cover such other financial matters
\n(including information as to the period ending no more than five Business Days
\nprior to the date of such letter) with respect to such registration as such
\nunderwriters or the Investor may reasonably request;<\/p>\n 21<\/p>\n
\n(i) Use commercially reasonable efforts to cooperate with the Investor and
\nits Affiliates in the disposition of the Registrable Securities covered by such
\nregistration statement;<\/p>\n (j) In connection with the preparation and filing of each registration
\nstatement registering Registrable Securities under the Securities Act, and
\nbefore filing any such registration statement or any other document in
\nconnection therewith, give reasonable consideration to the inclusion in such
\ndocuments of any comments reasonably and timely made by the Investor or any of
\nits legal counsel; participate in and make documents available for the
\nreasonable and customary due diligence review of underwriters during normal
\nbusiness hours, on reasonable advance notice and without undue burden or
\nhardship on the Company; provided<\/u> that (i) any party receiving
\nconfidential materials shall execute a confidentiality agreement on customary
\nterms if reasonably requested by the Company and (ii) the Company may in its
\nsole discretion restrict access to competitively sensitive or legally privileged
\ndocuments or information; and<\/p>\n (k) Otherwise use commercially reasonable efforts to comply with the
\nSecurities Act, the Exchange Act and any other applicable rules and regulations
\nof the SEC and reasonably cooperate with the Investor in the disposition of its
\nRegistrable Securities in accordance with the terms of this Agreement. Such
\ncooperation shall include the endorsement and transfer of any certificates
\nrepresenting Registrable Shares (or a book-entry transfer to similar effect)
\ntransferred in accordance with this Agreement.<\/p>\n For purposes of Sections 5.04(a) and 5.04(b) and of Section 5.01(d), the
\nperiod of distribution of Registrable Securities in a firm commitment
\nunderwritten public offering shall be deemed to extend until each underwriter
\nhas completed the distribution of all securities purchased by it, and the period
\nof distribution of Registrable Securities in any other registration shall be
\ndeemed to extend until the earlier of the sale of all Registrable Securities
\ncovered thereby and 90 days after the effective date thereof (the
\n“Effectiveness Period<\/u>“). In connection with each registration hereunder,
\nthe Investor and its Affiliates will timely furnish to the Company in writing
\nsuch information with respect to themselves and the proposed distribution by
\nthem as reasonably shall be necessary in order to assure compliance with federal
\nand applicable state securities laws. In connection with each registration
\npursuant to Sections 5.01 or 5.02 covering an underwritten public offering or a
\nHedging Transaction, the Company and the Investor agree to enter into customary
\nagreements (including an underwriting or similar agreement) with the managing
\nunderwriter or co-managing underwriters selected in the manner herein provided
\nor the Hedging Counterparty, as the case may be, in such form and containing
\nsuch provisions as are customary in the securities business for such an
\narrangement between such underwriter or Hedging Counterparty and companies of
\nthe Company153s size and investment stature.<\/p>\n 22<\/p>\n
\nThe Company will use commercially reasonable efforts to make available to its
\nsecurity holders, as promptly as reasonably practicable, an earnings statement
\n(which need not be audited) covering the period of 12 months commencing upon the
\nfirst disposition of Registrable Securities pursuant to a registration
\nstatement, which earnings statement shall satisfy the provisions of Section
\n11(a) of the Securities Act and Rule 158 of the SEC promulgated thereunder.<\/p>\n SECTION 5.05. Suspension of Sales.<\/u> (a) Upon receipt of notice from the
\nCompany pursuant to Section 5.04(g), the Investor shall immediately discontinue
\ndisposition of Registrable Securities pursuant to the applicable registration
\nstatement and prospectus relating thereto until the Investor (i) has received
\ncopies of a supplemented or amended prospectus or prospectus supplement pursuant
\nto Section 5.04(g) or (ii) is advised in writing by the Company that the use of
\nthe prospectus and, if applicable, prospectus supplement may be resumed, and, if
\nso directed by the Company, the Investor shall deliver to the Company (at the
\nCompany153s expense) all copies, other than permanent file copies then in the
\nInvestor153s possession, of the prospectus and, if applicable, prospectus
\nsupplement covering such Registrable Securities current at the time of receipt
\nof such notice. If the Company shall give such notice with regards to any
\nregistration statement requested pursuant to Section 5.01, the Effectiveness
\nPeriod in respect of such registration statement shall be extended by the number
\nof days during the period from and including the date such notice is given by
\nthe Company to the date when the Company shall have (i) made available to the
\nInvestor a supplemented or amended prospectus or prospectus supplement pursuant
\nto Section 5.04(g) or (ii) advised the Investor in writing that the use of the
\nprospectus and, if applicable, prospectus supplement may be resumed.<\/p>\n (b) Notwithstanding anything to the contrary in this Agreement, during any
\nScheduled Black-out Period the Investor shall immediately suspend or discontinue
\ndisposition of Registrable Securities until the termination of such Scheduled
\nBlack-out Period; provided<\/u> that (i) a Scheduled Black-out Period shall
\nnot prevent the Investor from making any demand under Section 5.01 or electing
\nto participate in any piggyback registration under Section 5.02 or relieve the
\nCompany from its obligation to file (but not its obligation to cause to be
\ndeclared effective) a registration statement pursuant to this Agreement and (ii)
\na Scheduled Black-out Period shall not apply to the Investor in any piggyback
\nregistration under Section 5.02 to the extent the Company has waived the
\nScheduled Black-out Period with respect to any registered offering of
\nRegistrable Securities for its own account or for the account of any other
\nperson, which offering gives rise to such piggyback registration. The
\nEffectiveness Period in respect of any registration statement requested pursuant
\nto Section 5.01 shall be extended by the number of days included in any
\nScheduled Black-out Period.<\/p>\n 23<\/p>\n
\nSECTION 5.06. Free Writing Prospectuses.<\/u> The Investor shall not use
\nany “free writing prospectus” (as defined in Rule 405 under the Securities Act)
\nin connection with the sale of Registrable Securities without the prior written
\nconsent of the Company; provided<\/u> that the Investor may use any free
\nwriting prospectus prepared and distributed by the Company.<\/p>\n SECTION 5.07. Indemnification.<\/u> (a) Notwithstanding any termination of
\nthis Agreement, the Company shall indemnify and hold harmless (including the
\nadvancement of expenses (subject to customary reimbursement agreements),
\nincluding expenses related to the investigation of any Claim and reasonable
\nfees, expenses and disbursements of attorneys and other professionals, incurred
\nprior to any assumption of the defense of such Claim by the Company) the Liberty
\nParties and their respective Affiliates, and each of their respective officers,
\ndirectors, employees, agents, partners, members, stockholders, Representatives
\nand Affiliates, and each person or entity, if any, that controls a Liberty Party
\nwithin the meaning of Section 15 of the Securities Act or Section 20 of the
\nExchange Act and the officers, directors, employees, agents and employees of
\neach such controlling person (each, a “Liberty Indemnified Person<\/u>“)
\nagainst any and all losses, claims, damages, actions, liabilities, costs and
\nexpenses (including expenses related to the investigation of any Claim and
\nreasonable fees, expenses and disbursements of attorneys and other
\nprofessionals) (collectively, “Losses<\/u>“), arising out of, directly or
\nindirectly resulting from, or relating to any Claim instituted, commenced or
\nbrought by any Governmental Entity, stockholder of the Company or any other
\nperson (other than (i) a Claim by any Liberty Party or any Affiliate of any
\nLiberty Party (except in the case of any action to enforce its rights under this
\nSection 5.07) or (ii) a direct Claim by the Company and its Subsidiaries (for
\nthe avoidance of doubt, a derivative Claim brought by or on behalf of the
\nCompany or its Subsidiaries is not such a direct Claim)) based on, resulting
\nfrom, or relating to this Agreement or the transactions contemplated by this
\nAgreement and enforcement of this Section 5.07, except that the Company will not
\nbe required to indemnify any Liberty Indemnified Person for Losses resulting
\nfrom its gross negligence, willful misconduct or willful and material breach of
\nthis Agreement.<\/p>\n 24<\/p>\n
\n(b) Notwithstanding any termination of this Agreement, the Company shall
\nindemnify and hold harmless each Investor and its Affiliates and each of their
\nrespective officers, directors, employees, agents, partners, members,
\nstockholders, Representatives and Affiliates, and each person or entity, if any,
\nthat controls the Investor within the meaning of Section 15 of the Securities
\nAct or Section 20 of the Exchange Act and the officers, directors, employees,
\nagents and employees of each such controlling person (each, an “Investor
\nIndemnified Person<\/u>“) against any and all Losses arising out of, resulting
\nfrom, or based upon any untrue or alleged untrue statement of material fact
\ncontained or incorporated by reference in any registration statement, including
\nany preliminary prospectus or final prospectus contained therein (or any
\ndocuments incorporated therein by reference) or any amendments or supplements
\nthereto or contained in any “issuer free writing prospectus” (as such term is
\ndefined in Rule 433 under the Securities Act) prepared by the Company or
\nauthorized by it in writing for use by such Investor or any amendment or
\nsupplement thereto; or any omission or alleged omission to state therein a
\nmaterial fact required to be stated therein or necessary to make the statements
\ntherein, in the light of the circumstances under which they were made, not
\nmisleading; provided<\/u> that the Company shall not be liable to such
\nInvestor Indemnified Person in any such case to the extent that any such Loss
\narises out of or is based upon (i) an untrue statement or alleged untrue
\nstatement or omission or alleged omission made in such registration statement,
\nincluding any such preliminary prospectus or final prospectus contained therein
\nor any such amendments or supplements thereto or contained in any issuer free
\nwriting prospectus prepared by the Company or authorized by it in writing for
\nuse by the Investor or any amendment or supplement thereto, in reliance upon and
\nin conformity with information regarding such Investor Indemnified Person or its
\nplan of distribution or ownership interests which such Investor Indemnified
\nPerson furnished in writing to the Company for use in connection with such
\nregistration statement, including any such preliminary prospectus or final
\nprospectus contained therein or any such amendments or supplements thereto or
\ncontained in any issuer free writing prospectus, (ii) offers or sales effected
\nby or on behalf such Investor Indemnified Person “by means of” (as defined in
\nSecurities Act Rule 159A) a “free writing prospectus” (as defined in Securities
\nAct Rule 405) that was not prepared by the Company or authorized in writing by
\nthe Company, or (iii) the failure to deliver or make available to a purchaser of
\nRegistrable Securities a copy of any preliminary prospectus, pricing information
\nor final prospectus contained in the applicable registration statement or any
\namendments or supplements thereto (to the extent the same is required by
\napplicable Law to be delivered or made available to such purchaser at the time
\nof sale or contract); provided<\/u> that the Company shall have delivered to
\nthe Investor such preliminary prospectus or final prospectus contained in the
\napplicable registration statement and any amendments or supplements thereto
\npursuant to Section 5.04(c) no later than the time of contract of sale in
\naccordance with Rule 159 under the Securities Act. Reimbursements payable
\npursuant to the indemnification contemplated by this Section 5.07(a) will be
\nmade by periodic payments during the course of any investigation or defense, as
\nand when bills are received or expenses incurred.<\/p>\n (c) Notwithstanding any termination of this Agreement, each Investor named as
\na selling stockholder in a registration statement pursuant to this Article V
\nshall indemnify and hold harmless the Company and its officers, directors,
\nemployees, agents, Representatives and Affiliates and each person or entity, if
\nany, that controls the Company within the meaning of Section 15 of the
\nSecurities Act or Section 20 of the Exchange Act and the officers, directors,
\nemployees, agents and employees of each such controlling person against any and
\nall Losses arising out of or based upon any untrue or alleged untrue statement
\nof material fact contained in any registration statement, including any
\npreliminary prospectus or final prospectus contained therein or any amendments
\nor supplements thereto (or any documents incorporated therein by reference) or
\ncontained in any “issuer free writing prospectus” (as such term is defined in
\nRule 433 under the Securities Act), or any omission or alleged omission to state
\ntherein a material fact required to be stated therein or necessary to make the
\nstatements therein, in the light of the circumstances under which they were
\nmade, not misleading, but only to the extent, that such untrue statements or
\nomissions are based solely upon information furnished in writing to the Company
\nby such Investor expressly for use therein. Reimbursements payable pursuant to
\nthe indemnification contemplated by this Section 5.07(c) will be made by
\nperiodic payments during the course of any investigation or defense, as and when
\nbills are received or expenses incurred.<\/p>\n 25<\/p>\n
\n(d) If any Claim shall be brought or asserted against any person entitled to
\nindemnity hereunder (an “Indemnified Party<\/u>“), such Indemnified Party
\nshall promptly notify the person from whom indemnity is sought (the
\n“Indemnifying Party<\/u>“) in writing; provided<\/u> that the failure of any
\nIndemnified Party to give such notice shall not relieve the Indemnifying Party
\nof its obligations or liabilities pursuant to this Section 5.07, except to the
\nextent that such failure shall have materially prejudiced the Indemnifying
\nParty. In case any such Claim is brought against an Indemnified Party and such
\nIndemnified Party seeks or intends to seek indemnity from an Indemnifying Party,
\nthe Indemnifying Party will be entitled to participate in, and to the extent
\nthat it shall elect, promptly after receiving the aforesaid notice from such
\nIndemnified Party, assume the defense in such proceeding, including (x) in the
\ncase of an indemnification claim pursuant to Sections 5.07(b) or (c), the
\nemployment of counsel reasonably satisfactory to the Indemnified Party, (y) in
\nthe case of an indemnification claim pursuant to Section 5.07(a), the employment
\nof counsel chosen by the Indemnified Party reasonably satisfactory to the
\nIndemnifying Party, and (z) the payment of all fees and expenses incurred in
\nconnection with such defense. An Indemnified Party shall have the right to
\nemploy separate counsel in any such proceeding and to participate in the defense
\nof such proceeding, but the fees and expenses of such counsel shall be at the
\nexpense of such Indemnified Party or Parties unless: (i) the Indemnifying Party
\nhas agreed in writing to pay such fees and expenses; (ii) the Indemnifying Party
\nshall have failed promptly to assume the defense of such proceeding and to
\nemploy counsel (in accordance with this Section 5.07(d)) reasonably satisfactory
\nto such Indemnified Party in any such proceeding; or (iii) the named parties to
\nany such proceeding (including any impleaded parties) include both such
\nIndemnified Party and the Indemnifying Party, and such Indemnified Party shall
\nhave been advised by counsel that representation of both such Indemnified Party
\nand the Indemnifying Party by the same counsel would be inappropriate because of
\nan actual conflict of interest between the Indemnifying Party and such
\nIndemnified Party (in which case, if such Indemnified Party notifies the
\nIndemnifying Party in writing that it elects to employ separate counsel at the
\nexpense of the Indemnifying Party, the Indemnifying Party shall not have the
\nright to assume the defense thereof and such counsel shall be at the expense of
\nthe Indemnifying Party); provided<\/u> that the Indemnifying Party shall not
\nbe liable for the fees and expenses of more than one separate firm of attorneys
\n(in addition to one local counsel in each jurisdiction) at any time for all
\nIndemnified Parties. The Indemnifying Party shall not be liable for any
\nsettlement of any such proceeding effected without its written consent, which
\nconsent shall not be unreasonably withheld, but if settled with such consent, or
\nif there be a final judgment for the plaintiff, the Indemnifying Party shall
\nindemnify and hold harmless the Indemnified Party from and against any Loss (to
\nthe extent stated above) by reason of such settlement or judgment. No
\nIndemnifying Party shall, without the prior written consent of the Indemnified
\nParty (which consent shall not be unreasonably withheld, conditioned or delayed
\nso long as the Indemnifying Party has complied, and continues to comply, with
\nall of its covenants and obligations under this Agreement), effect any
\nsettlement of any pending proceeding in respect of which any Indemnified Party
\nis a party, unless such settlement (x) includes an unconditional release of such
\nIndemnified Party from all liability on claims that are the subject matter of
\nsuch proceeding and (y) does not result in any limitation or restriction upon
\nany Investor153s exercise of all rights, privileges and preferences applicable to
\nit as a holder of Series J Preferred Stock (or the shares of Company Common
\nStock issuable upon conversion thereof) and its rights under this Agreement.
\nNotwithstanding the foregoing, the parties acknowledge and agree that to the
\nextent a Claim is made against any Liberty Indemnified Person which may be
\nindemnifiable pursuant to Section 5.07(a), the Liberty Indemnified Person will
\nbe entitled to retain its regular outside counsel to review and produce
\ndocuments, electronic files and other materials in response to document requests
\nin connection with any Claim for which a Liberty Indemnified Person may be
\nentitled to indemnification pursuant to Section 5.07(a), and make determinations
\nwith respect to and prosecute issues related to confidential information of the
\nLiberty Indemnified Persons. The Company will pay directly the reasonable fees
\nand expenses of such counsel in connection with any such Claim.<\/p>\n 26<\/p>\n
\n(e) If the indemnification provided for in Sections 5.07(b) or 5.07(c) is
\nunavailable to an Indemnified Party with respect to any Losses, or is
\ninsufficient to hold the Indemnified Party harmless as contemplated therein
\n(other than pursuant to the exceptions to indemnification provided for in
\nSections 5.07(b) or 5.07(c)) then the Indemnifying Party, in lieu of
\nindemnifying such Indemnified Party, shall contribute to the amount paid or
\npayable by such Indemnified Party as a result of such Losses in such proportion
\nas is appropriate to reflect the relative fault of the Indemnified Party, on the
\none hand, and the Indemnifying Party, on the other hand, in connection with the
\nstatements or omissions which resulted in such Losses as well as any other
\nrelevant equitable considerations. The relative fault of the Indemnifying Party,
\non the one hand, and of the Indemnified Party, on the other hand, shall be
\ndetermined by reference to, among other factors, whether the untrue or alleged
\nuntrue statement of a material fact or omission to state a material fact relates
\nto information supplied by the Indemnifying Party or by the Indemnified Party
\nand the parties153 relative intent, knowledge, access to information concerning
\nthe matter with respect to which the claim was asserted and opportunity to
\ncorrect or prevent such statement or omission. The Company and each Investor
\nagree that it would not necessarily be just and equitable if the amount of
\ncontribution pursuant to this Section 5.07(e) were determined by pro rata
\nallocation or by any other method of allocation that does not take account of
\nthe equitable considerations referred to in this Section 5.07(e). No Indemnified
\nParty guilty of fraudulent misrepresentation (within the meaning of Section
\n11(f) of the Securities Act) shall be entitled to contribution from an
\nIndemnifying Party not guilty of such fraudulent misrepresentation.
\nNotwithstanding the foregoing, no Investor Indemnified Person shall be required
\nto contribute any amount in excess of the amount by which the total price at
\nwhich the Registrable Securities sold by Investor under the relevant
\nregistration statement exceeds the amount of any damages that such Investor
\nIndemnified Person has otherwise been required to pay by reason of such untrue
\nor alleged untrue statement or omission or alleged omission.<\/p>\n (f) If the receipt or accrual of any indemnification payment pursuant to
\nSection 5.07(a) causes, directly or indirectly, an actual increase in the Taxes
\nof a Liberty Indemnified Person under one or more applicable Tax laws, Losses
\nshall be increased by an amount so that, after the payment of any Taxes
\n(including, for the avoidance of doubt, estimated Taxes) arising, directly or
\nindirectly, from such payment (including as so increased pursuant to this
\nSection 5.07(f)), the Liberty Indemnified Person shall have received the same
\nnet amount that such person would have received had the payment not resulted in
\nsuch increase in Taxes of the Liberty Indemnified Person. If such increase in
\nTaxes occurs with respect to but following any indemnification payment made by
\nthe Company to the Liberty Indemnified Person pursuant to Section 5.07(a) or
\nwith respect to but following any payment made by the Company to the Liberty
\nIndemnified Person pursuant to this Section 5.07(f), then the Company shall
\npromptly pay the Liberty Indemnified Person the amount of such increase in Taxes
\nwhen such Taxes are due and payable by the Liberty Indemnified Person
\n(including, for the avoidance of doubt, as a result of the payment of any
\nestimated Taxes). If the increase in Taxes of a Liberty Indemnified Person
\ndescribed in this Section 5.07(f) is reduced or eliminated after the Liberty
\nIndemnified Person has received a payment from the Company relating to such
\nincrease in Taxes, the Liberty Indemnified Person shall promptly repay the
\nCompany the reduced or eliminated amount.<\/p>\n 27<\/p>\n
\nIf any Losses described in Section 5.07(a) result in an actual Tax loss,
\ndeduction or credit (other than any Tax loss, deduction or credit resulting from
\nan increase in Tax basis of any asset) in determining the amount of any Taxes,
\nor if Taxes of a Liberty Indemnified Person arising, directly or indirectly,
\nfrom payments received by a Liberty Indemnified Person from the Company pursuant
\nto Section 5.07(a) and this Section 5.07(f) may be deducted or credited in
\ndetermining the amount of any other Taxes (for example, state Taxes that are
\npermitted to be deducted in determining federal Taxes), required to be paid by
\nthe Liberty Indemnified Person (including, for the avoidance of doubt, estimated
\nTaxes), Losses shall be decreased by an amount equal to the reduction in Taxes
\nof the Liberty Indemnified Person resulting from such loss, deduction or credit.
\nIf such reduction in Taxes of the Liberty Indemnified Person occurs with respect
\nto but following any indemnification payment made by the Company to the Liberty
\nIndemnified Person pursuant to Section 5.07(a) or with respect to but following
\nany payment made by the Company to the Liberty Indemnified Person pursuant to
\nthis Section 5.07(f), then the Liberty Indemnified Person shall promptly repay
\nthe Company the amount of such reduction when the decrease in Taxes resulting
\nfrom such loss, deduction or credit is actually realized (including, for the
\navoidance of doubt, in connection with the payment of any estimated Taxes). If
\nthe Tax benefit resulting from a Tax loss, deduction or credit of a Liberty
\nIndemnified Person described in this Section 5.07(f) is reduced or eliminated
\nafter such Tax benefit was taken into account in determining amounts paid
\npursuant to Section 5.07(a) or this Section 5.07(f), then the Company shall
\npromptly pay the Liberty Indemnified Person the reduced or eliminated amount.\n<\/p>\n Any increase or decrease in Taxes for any period (including, for the
\navoidance of doubt, estimated Taxes) of a Liberty Indemnified Person shall be
\ndetermined on a “with and without” basis, by comparing the Taxes actually
\nrequired to be paid for such period with the item of income, gain, loss,
\ndeduction or credit taken into account to the amount that would be so required
\nto be paid without such item.<\/p>\n SECTION 5.08. Lock-up Agreement; Agreement to Furnish Information.<\/u>
\n(a) The Investor agrees that it will not Transfer or otherwise make any short
\nsale of, grant any option for the purchase of, or enter into any new hedging or
\nsimilar transaction with the same economic effect as a sale with respect to,
\nincluding a sale pursuant to Rule 144 under the Securities Act, any Company
\nCommon Stock (or other securities of the Company) held by the Investor (other
\nthan those included in the registration) for a period specified by the
\nRepresentatives of the managing underwriters or co-managing underwriters of
\nCompany Common Stock (or other securities of the Company convertible into
\nCompany Common Stock) not to exceed 10 days prior and 120 days following any
\nregistered public sale of securities by the Company in which the Company gave
\nthe Investor an opportunity to participate in accordance with Section 5.02;
\nprovided<\/u> that executive officers and directors of the Company and other
\nholders of the Company Common Stock participating in such offering enter into
\nsimilar agreements and only as long as and to the extent such persons remain
\nsubject to such agreement (and are not fully released from such agreement) for
\nsuch period. The Investor agrees to execute and deliver such other agreements as
\nmay be reasonably requested by the Representatives of the underwriters or
\nco-managing underwriters which are consistent with the foregoing or which are
\nnecessary to give further effect thereto. In addition, if requested in writing
\nby the Company or the managing underwriters or co-managing underwriters of
\nCompany Common Stock (or other securities of the Company), the Investor shall
\nprovide such documents and instruments as may be reasonably required by the
\nCompany or such Representative of the managing underwriters in connection with
\nthe filing of a registration statement on the date specified in such writing and
\nthe completion of any public offering of the Registrable Securities pursuant to
\nthis Agreement (including a questionnaire, custody agreement, power of attorney,
\nlock-up letter and underwriting agreement (the “Requested
\nInformation<\/u>“)). If the Company has not received, on or before the second
\nBusiness Day before the specified filing date, the Requested Information from
\nthe Investor (provided<\/u> the written request therefor is received by the
\nInvestor not less than seven Business Days before the filing date, the Company
\nmay file the registration statement without including Registrable Securities of
\nsuch Investor. The failure to so include in any registration statement the
\nRegistrable Securities of the Investor (with regard to that registration
\nstatement) shall not in and of itself result in any liability on the part of the
\nCompany to the Investor.<\/p>\n 28<\/p>\n
\nSECTION 5.09. Rule 144 Reporting.<\/u> With a view to making available to
\nthe Investor the benefits of certain rules and regulations of the SEC which may
\npermit the sale of the Registrable Securities that are shares of Company Common
\nStock to the public without registration, the Company agrees to use its
\ncommercially reasonable efforts to: (i) make and keep public information
\navailable, as those terms are understood and defined in Rule 144 under the
\nSecurities Act or any similar or analogous rule promulgated under the Securities
\nAct, at all times after the effective date of this Agreement; (ii) file with the
\nSEC, in a timely manner, all reports and other documents required of the Company
\nunder the Exchange Act; and (iii) so long as the Investor owns any Registrable
\nSecurities, furnish to the Investor forthwith upon request: a written statement
\nby the Company as to its compliance with the reporting requirements of Rule 144
\nunder the Securities Act, and of the Exchange Act; a copy of the most recent
\nannual or quarterly report of the Company; and such other reports and documents
\nas the Investor may reasonably request in availing itself of any rule or
\nregulation of the SEC allowing it to sell any such Company Common Stock without
\nregistration.<\/p>\n SECTION 5.10. Registration in connection with Hedging Transaction.<\/u>
\n(a) Subject to Section 4.02(b) and this Article V, the Company acknowledges that
\nfrom time to time the Investor may seek to enter into one or more Hedging
\nTransactions with a Hedging Counterparty. The Company agrees that, in connection
\nwith any proposed Hedging Transaction, if, in the reasonable judgment of counsel
\nto the Investor (after good faith consultation with counsel to the Company), it
\nis necessary or desirable to register under the Securities Act sales or
\ntransfers (whether short or long and whether by the Investor or by the Hedging
\nCounterparty) of Registrable Securities or (by the Hedging Counterparty) other
\nshares of Company Common Stock in connection therewith, then a registration
\nstatement covering Registrable Securities or such other shares of Company Common
\nStock may be used in a manner otherwise in accordance with the terms and
\nconditions of this Agreement to register such sales or transfers under the
\nSecurities Act.<\/p>\n (b) Subject to Section 4.02(b) and this Article V, if, in the circumstances
\ncontemplated by Section 5.10(a), the Investor seeks to register sales or
\ntransfers of Registrable Securities (or the sale or transfer by a Hedging
\nCounterparty of other shares of Company Common Stock) in connection with a
\nHedging Transaction at a time when a Registration Statement covering Registrable
\nSecurities is effective, upon receipt of written notice thereof from the
\nInvestor, the Company shall use commercially reasonable efforts to take such
\nactions as may reasonably be required to permit such sales or transfers in
\nconnection with such Hedging Transaction to be covered by such effective
\nRegistration Statement in a manner otherwise in accordance with the terms and
\nconditions of this Agreement, which may include, among other things, the filing
\nof a prospectus supplement or post-effective amendment including a description
\nof such Hedging Transaction, the name of the Hedging Counterparty,
\nidentification of the Hedging Counterparty or its Affiliates as underwriters or
\npotential underwriters, if applicable, and any change to the plan of
\ndistribution contained in the prospectus. Any information regarding a Hedging
\nTransaction included in a Registration Statement shall be deemed to be
\ninformation furnished in writing expressly for use therein by the Investor for
\npurposes of Section 5.07.<\/p>\n 29<\/p>\n
\nSECTION 5.11. Transfer of Registration Rights.<\/u> Investor shall have the
\nright to transfer, by written agreement, any or all of its rights and
\nobligations granted under this Article V (other than to the extent related to
\nSection 5.07(a)) to any direct or indirect transferee of its Registrable
\nSecurities (each person to whom such rights and obligations shall have been so
\ntransferred hereunder, a “Permitted Transferee<\/u>“); provided<\/u>, (i)
\nsuch transferee is, at the time of such transfer, an Affiliate of the Investor
\nor any person described in clause (i) of Section 4.02(a), or (ii) such
\ntransferee is an “accredited investor” as such term is defined in Rule 501 of
\nRegulation D promulgated under the Securities Act, and in either such case (x)
\nsuch transferee agrees, in writing in form and substance reasonably satisfactory
\nto the Company, to be bound by the terms and provisions of this Article V, which
\nshall specify the rights under this Article V being assigned to such Permitted
\nTransferee (provided that no such assignment shall expand the obligations of the
\nCompany under this Article V) and (y) such transfer of Registrable Securities
\nshall be effected in compliance with this Agreement. Following any transfer or
\nassignment made pursuant to this Section 5.11 in connection with the transfer by
\nthe Investor of a portion of its Registrable Securities, the Investor shall
\nretain all rights under this Agreement with respect to the remaining portion of
\nits Registrable Securities.<\/p>\n SECTION 5.12. Termination of Registration Rights.<\/u> This Article V
\n(other than Section 5.03, Section 5.07 and Section 5.09) will terminate on the
\ndate on which all shares of Company Common Stock subject to this Agreement cease
\nto be Registrable Securities.<\/p>\n ARTICLE VI<\/p>\n Miscellaneous<\/u><\/p>\n SECTION 6.01. Survival<\/u>. The representations and warranties of the
\nparties set forth in Article II of this Agreement shall survive until the second
\nanniversary of the Closing, except that Sections 2.01(a), (b), (c), (e) and (g)
\nand Sections 2.02(a) and (b) shall survive indefinitely. All of the covenants or
\nother agreements of the parties contained in this Agreement shall survive until
\nfully performed or fulfilled.<\/p>\n SECTION 6.02. Amendments, Waivers, etc.<\/u> This Agreement may be amended
\nor waived if, and only if, such amendment or waiver is in writing and signed by
\nthe Company and the Investor against whom such amendment or waiver shall be
\nenforced, and, to the extent such amendment or waiver purports to be enforceable
\nagainst any Liberty Party, such amendment or waiver shall also be signed by such
\nLiberty Party (unless such Investor is itself a Liberty Party, in which case no
\nfurther signatures shall be required). The failure of any party hereto to
\nexercise any right, power or remedy provided under this Agreement or otherwise
\navailable in respect hereof at law or in equity, or to insist upon compliance by
\nany other party hereto with its obligations hereunder, shall not constitute a
\nwaiver by such party of its right to exercise any such other right, power or
\nremedy or to demand such compliance.<\/p>\n 30<\/p>\n
\nSECTION 6.03. Counterparts and Facsimile<\/u>. This Agreement may be
\nexecuted in two or more identical counterparts (including by facsimile), each of
\nwhich shall be an original, with the same effect as if the signatures thereto
\nand hereto were upon the same instrument, and shall become effective when one or
\nmore counterparts have been signed by each of the parties and delivered (by
\ntelecopy or otherwise) to the other parties.<\/p>\n SECTION 6.04. Specific Enforcement; Governing Law; Submission to
\nJurisdiction; Waiver of Jury Trial.<\/u><\/p>\n (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
\nLAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT
\nOF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
\nJURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
\nOTHER THAN THE STATE OF DELAWARE.<\/p>\n (b) THE PARTIES ACKNOWLEDGE AND AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN
\nTHE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
\nACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS
\nACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
\nINJUNCTIONS TO PREVENT BREACHES OR THREATENED BREACHES OF THIS AGREEMENT AND TO
\nENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS AGREEMENT IN ANY COURT OF
\nCOMPETENT JURISDICTION, IN EACH CASE WITHOUT PROOF OF DAMAGES OR OTHERWISE (AND
\nEACH PARTY HEREBY WAIVES ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND
\nIN CONNECTION WITH SUCH REMEDY), THIS BEING IN ADDITION TO ANY OTHER REMEDY TO
\nWHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. THE PARTIES AGREE NOT TO ASSERT
\nTHAT A REMEDY OF SPECIFIC ENFORCEMENT IS UNENFORCEABLE, INVALID, CONTRARY TO LAW
\nOR INEQUITABLE FOR ANY REASON, NOR TO ASSERT THAT A REMEDY OF MONETARY DAMAGES
\nWOULD PROVIDE AN ADEQUATE REMEDY. IN ADDITION, EACH OF THE PARTIES HERETO
\nIRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
\nAGREEMENT AND THE RIGHTS AND OBLIGATIONS ARISING HEREUNDER, OR FOR RECOGNITION
\nAND ENFORCEMENT OF ANY JUDGMENT IN RESPECT OF THIS AGREEMENT AND THE RIGHTS AND
\nOBLIGATIONS ARISING HEREUNDER, BROUGHT BY THE OTHER PARTY HERETO OR ITS
\nSUCCESSORS OR ASSIGNS SHALL BE BROUGHT AND DETERMINED EXCLUSIVELY IN THE
\nDELAWARE COURT OF CHANCERY, OR IN THE EVENT (BUT ONLY IN THE EVENT) THAT SUCH
\nCOURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION OR PROCEEDING,
\nIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE OR ANOTHER
\nCOURT SITTING IN THE STATE OF DELAWARE. EACH OF THE PARTIES HERETO HEREBY
\nIRREVOCABLY SUBMITS WITH REGARD TO ANY SUCH ACTION OR PROCEEDING FOR ITSELF AND
\nIN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, TO THE PERSONAL
\nJURISDICTION OF THE AFORESAID COURTS AND AGREES THAT IT WILL NOT BRING ANY
\nACTION RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
\nTHIS AGREEMENT IN ANY COURT OTHER THAN THE AFORESAID COURTS. EACH OF THE PARTIES
\nHERETO HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS
\nA DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION OR PROCEEDING WITH RESPECT
\nTO THIS AGREEMENT, (1) ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
\nJURISDICTION OF THE ABOVE-NAMED COURTS FOR ANY REASON, (2) ANY CLAIM THAT IT OR
\nITS PROPERTY IS EXEMPT OR IMMUNE FROM JURISDICTION OF ANY SUCH COURT OR FROM ANY
\nLEGAL PROCESS COMMENCED IN SUCH COURTS (WHETHER THROUGH SERVICE OF NOTICE,
\nATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF JUDGMENT,
\nEXECUTION OF JUDGMENT OR OTHERWISE) AND (3) TO THE FULLEST EXTENT PERMITTED BY
\nTHE APPLICABLE LAW, ANY CLAIM THAT (A) THE SUIT, ACTION OR PROCEEDING IN SUCH
\nCOURT IS BROUGHT IN AN INCONVENIENT FORUM, (B) THE VENUE OF SUCH SUIT, ACTION OR
\nPROCEEDING IS IMPROPER OR (C) THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY
\nNOT BE ENFORCED IN OR BY SUCH COURTS. EACH PARTY HERETO HEREBY IRREVOCABLY
\nCONSENTS TO THE SERVICE OF PROCESS IN ANY ACTION, SUIT OR OTHER PROCEEDING
\nARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
\nCONTEMPLATED BY THIS AGREEMENT, ON BEHALF OF ITSELF OR ITS PROPERTY, BY U.S.
\nREGISTERED MAIL TO SUCH PARTY153S RESPECTIVE ADDRESS SET FORTH BELOW, AND NOTHING
\nIN THIS SECTION 6.04(b) SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL
\nPROCESS IN ANY OTHER MANNER PERMITTED BY LAW.<\/p>\n 31<\/p>\n
\n(c) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
\nAPPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT,
\nACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF, UNDER OR IN CONNECTION WITH
\nTHIS AGREEMENT. EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE OF ANY
\nOTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
\nNOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE
\nFOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
\nBEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
\nWAIVER AND CERTIFICATIONS IN THIS SECTION 6.04(c).<\/p>\n SECTION 6.05. Remedies<\/u>. The parties agree that, with respect to any
\nbreach of any of the representations and warranties of the Company set forth in
\nArticle II that relates solely to a matter that results in an increase in the
\nDividend Rate on the Series J Preferred Stock under Section 3(a)(ii) of the
\nCertificate of Designations, such increase shall be the sole and exclusive
\nremedy of the Investor and any Liberty Party under this Agreement or the
\nCertificate of Designations with respect to such breach; provided<\/u> that
\nthe foregoing will not affect the Company153s liability for breach of its
\ncovenants and obligations hereunder.<\/p>\n 32<\/p>\n
\nSECTION 6.06. Notices.<\/u> Any notice required to be given hereunder shall
\nbe sufficient if in writing, and sent by facsimile transmission (provided<\/u>
\nthat any notice received by facsimile transmission or otherwise at the
\naddressee153s location on any Business Day after 5:00 p.m. (addressee153s local
\ntime) shall be deemed to have been received at 9:00 a.m. (addressee153s local
\ntime) on the next Business Day), by reliable overnight delivery service (with
\nproof of service), or hand delivery, addressed as follows:<\/p>\n (a) If to the Company:<\/p>\n Barnes & Noble, Inc.<\/p>\n 122 Fifth Avenue<\/p>\n New York, NY 10011<\/p>\n Attention: Eugene V. DeFelice<\/p>\n Vice President, General Counsel & Secretary<\/p>\n Facsimile: 212-463-5683<\/p>\n With a copy to:<\/p>\n Cravath, Swaine & Moore LLP<\/p>\n Worldwide Plaza<\/p>\n 825 Eighth Avenue<\/p>\n New York, NY 10019<\/p>\n Attention: Scott A. Barshay, Esq.<\/p>\n Andrew R. Thompson, Esq.<\/p>\n Facsimile: (212) 474-3700<\/p>\n (b) If to the Investor or any Liberty Party:<\/p>\n Liberty GIC, Inc.<\/p>\n 12300 Liberty Boulevard<\/p>\n Englewood, CO 80112<\/p>\n Attention: Legal Department<\/p>\n Facsimile: (720) 875-5382<\/p>\n with a copy to:<\/p>\n Baker Botts L.L.P.<\/p>\n 30 Rockefeller Plaza<\/p>\n New York, NY 10112<\/p>\n Attention: Frederick H. McGrath<\/p>\n Renee L. Wilm<\/p>\n Facsimile: (212) 408-2501<\/p>\n 33<\/p>\n
\nor to such other address as any person shall specify by written notice so
\ngiven, and such notice shall be deemed to have been delivered as of the date so
\ntelecommunicated, personally delivered or scheduled to be received if sent by
\novernight delivery service. Any party to this Agreement may notify any other
\nparty of any changes to the address or any of the other details specified in
\nthis paragraph; provided<\/u>, however<\/u>, that such notification shall
\nonly be effective on the date specified in such notice or five Business Days
\nafter the notice is given, whichever is later. Rejection or other refusal to
\naccept or the inability to deliver because of changed address of which no notice
\nwas given shall be deemed to be receipt of the notice as of the date of such
\nrejection, refusal or inability to deliver.<\/p>\n SECTION 6.07. Entire Agreement, etc.<\/u> This Agreement (including all
\nschedules and exhibits hereto), together with the Certificate of Designations,
\nconstitute the entire agreement, and supersede all other prior agreements,
\nunderstandings, representations and warranties, both written and oral, between
\nthe parties, with respect to the subject matter hereof and thereof.<\/p>\n SECTION 6.08. Definitions<\/p>\n (a) “2011 Annual Meeting Completion Date<\/u>” means the date immediately
\nfollowing the date on which the Company153s annual meeting of stockholders in 2011
\nis concluded.<\/p>\n (b) “Affiliate<\/u>” means, with respect to any specified person or entity,
\nany other person or entity directly or indirectly controlling or controlled by,
\nor under direct or indirect common control with, such specified person or
\nentity; provided<\/u>, that (i) the Company and its Subsidiaries shall not be
\ndeemed to be Affiliates of the Liberty Parties or any of their respective
\nAffiliates and (ii) none of Expedia, Inc., any of its Affiliates, TripAdvisor,
\nInc. or any of its Affiliates, shall be deemed to be Affiliates of any of the
\nLiberty Parties. For the purposes of this definition, “control<\/u>“, when
\nused with respect to any specified person, means the power to direct the
\nmanagement and policies of such person, directly or indirectly, whether through
\nthe ownership of voting securities, by contract or otherwise; and the terms
\n“controlling<\/u>” and “controlled<\/u>” have meanings correlative to the
\nforegoing.<\/p>\n (c) “ASRS<\/u>” means an “automatic shelf registration statement” as
\ndefined in Rule 405 promulgated under the 1933 Act.<\/p>\n (d) “ASR Eligible<\/u>” means the Issuer meets or is deemed to meet the
\neligibility requirements to file an ASRS as set forth in General Instruction
\nI.D. to Form S-3.<\/p>\n (e) “beneficial owner<\/u>” and “beneficial ownership<\/u>” and words of
\nsimilar import have the meaning assigned to such terms in Rule 13d-3 and Rule
\n13d-5 promulgated under the Exchange Act and a person153s beneficial ownership of
\nsecurities shall be determined in accordance with the provisions of such Rules.\n<\/p>\n (f) “Business Day<\/u>” means any weekday that is not a day on which
\nbanking institutions in New York, New York are authorized or required by law,
\nregulation or executive order to be closed.<\/p>\n 34<\/p>\n
\n(g) “Change of Control<\/u>” has the meaning set forth in the Certificate
\nof Designations.<\/p>\n (h) “Claim<\/u>” means any demand, action, claim, suit, litigation,
\narbitration, prosecution, proceeding (including any civil, criminal,
\nadministrative, investigative or appellate proceeding, at law or in equity),
\nhearing, examination or investigation.<\/p>\n (i) “Company Disclosure Letter<\/u>” means the letter dated as of the date
\nof this Agreement delivered by the Company to the Investor.<\/p>\n (j) “Credit Agreement<\/u>” means the Amended and Restated Credit Agreement
\ndated as of April 29, 2011, among the Company, the borrowers thereunder, the
\nguarantors thereunder, Bank of America, N.A., as Administrative Agent,
\nCollateral Agent and Swing Line Lender, JPMorgan Chase Bank, N.A. and Wells
\nFargo Retail Finance, LLC, as Co-Syndication Agents, and Suntrust Bank and
\nRegions Bank, as Co-Documentation Agents, as amended from time to time in
\naccordance with the terms thereof.<\/p>\n (k) “Dividend Payment Date<\/u>” means the last day of each of the
\nCompany153s fiscal quarters in each fiscal year, commencing with the Company153s
\ncurrent fiscal quarter; provided<\/u>, however<\/u>, if any such day is not
\na Business Day, then payment of any dividend otherwise payable on that date will
\nbe made on the next succeeding day that is a Business Day, without any interest
\nor other payment in respect of such delay.<\/p>\n (l) “Dividend Rate<\/u>” has the meaning set forth in the Certificate of
\nDesignations.<\/p>\n (m) “Dividend Record Date<\/u>” means the record date for payment of
\ndividends on the Series J Preferred Stock, which will be the 15th day of the
\ncalendar month of the relevant Dividend Payment Date, or the 15th day of the
\nprior month if the Dividend Payment is on or before the 15th day of a calendar
\nmonth.<\/p>\n (n) “Hedging Counterparty<\/u>” means a broker-dealer registered under
\nSection 15(b) of the Exchange Act or an Affiliate thereof or any other financial
\ninstitution that routinely engages in Hedging Transactions in the ordinary
\ncourse of its business.<\/p>\n (o) “Hedging Transaction<\/u>” means any transaction, agreement or
\narrangement involving a security linked to the Registrable Securities or any
\nsecurity that would be deemed to be a “derivative security” (as defined in Rule
\n16a-1(c) under the Exchange Act) with respect to the Registrable Securities or
\nany transaction (even if not a security) which would (were it a security) be
\nconsidered such a derivative security, or which transfers some or all of the
\neconomic risk of ownership of the Registrable Securities, including any forward
\ncontract, equity swap, put or call, put or call equivalent position, collar,
\nnon-recourse loan, sale of exchangeable security or similar transaction or is
\notherwise based on the value of the Registrable Securities. For the avoidance of
\ndoubt, the following transactions shall be deemed to be Hedging Transactions:\n<\/p>\n (i) transactions by the Investor in which a Hedging Counterparty engages in
\nshort sales of Company Common Stock pursuant to a prospectus and may use
\nRegistrable Securities to close out its short position;<\/p>\n 35<\/p>\n
\n(ii) transactions pursuant to which the Investor sells short Company Common
\nStock pursuant to a prospectus and delivers Registrable Securities to close out
\nits short position;<\/p>\n (iii) transactions by the Investor in which the Investor delivers, in a
\ntransaction exempt from registration under the Securities Act, Registrable
\nSecurities to a Hedging Counterparty who may then publicly resell or otherwise
\ntransfer such Registrable Securities pursuant to a prospectus or an exemption
\nfrom registration under the Exchange Act;<\/p>\n (iv) a loan or pledge of Registrable Securities to a Hedging Counterparty who
\nmay then sell the loaned shares or, in an event of default in the case of a
\npledge, then sell the pledged shares, in each case, in a public transaction
\npursuant to a prospectus; and<\/p>\n (v) for purposes of Section 4.02(b), transactions of the type encompassed
\nwithin the definition of “Hedging Transaction” undertaken with respect to Series
\nJ Preferred Stock.<\/p>\n (p) “In the Money Securities<\/u>” means any securities or rights that are
\nconvertible into, or exercisable or exchangeable for, shares of Company Common
\nStock (other than the Preferred Shares) at an exercise or conversion price per
\nshare of Company Common Stock that is less than the Closing Price (as defined in
\nthe Certificate of Designations).<\/p>\n (q) “Junior Stock<\/u>” means the Company Common Stock, the Series I
\nPreferred Stock, and any other class or series of capital stock of the Company
\nnow existing or hereafter authorized other than the Series J Preferred Stock,
\nany class or series of Parity Stock, and any class or series of Senior Stock.\n<\/p>\n (r) “Liberty Distribution Transaction<\/u>” means any transaction by which
\nany Liberty Party or any subsidiary of a Liberty Party that owns of record
\nshares of Series J Preferred Stock, or the shares of Company Common Stock
\nreceived upon conversion thereof, ceases to be a subsidiary of any Liberty Party
\nby reason of the distribution of such subsidiary153s or such subsidiary153s parent
\ncompany153s equity securities to the holders of common stock of any Liberty Party,
\nwhether by means of a spin-off, split-off, redemption, reclassification,
\nexchange, stock dividend, share distribution, rights offering or similar
\ntransaction.<\/p>\n (s) “Liberty Party<\/u>” or “Liberty Parties<\/u>” means Liberty Media
\nCorporation, Liberty CapStarz, Inc., Liberty GIC, Inc. and any of their
\nrespective subsidiaries, together with (i) any Affiliate of any of the foregoing
\nthat owns of record shares of Series J Preferred Stock, or shares of Company
\nCommon Stock received upon conversion thereof, and is subject to a Liberty
\nDistribution Transaction, and (ii) any Affiliate of any Person that becomes a
\nLiberty Party by reason of any Liberty Distribution Transaction in compliance
\nwith the provisions of this Agreement and owns of record shares of Series J
\nPreferred Stock, or shares of Company Common Stock received upon conversion
\nthereof.<\/p>\n (t) “Major Division<\/u>” means any of B&N Retail, B&N College or
\nB&N.com, in each case as described in the Company153s Annual Report on Form
\n10-K for the fiscal year ended April 30, 2011.<\/p>\n 36<\/p>\n
\n(u) “Ownership Percentage<\/u>” means, with respect to the Liberty Parties
\nand their respective Affiliates as of any date, the percentage equal to the sum
\nof (i) the number of shares of Company Common Stock into which the Preferred
\nShares can be converted as of such date, (ii) the number of shares of Company
\nCommon Stock beneficially owned by the Liberty Parties as of such date
\n(excluding any share of Company Common Stock included pursuant to clause (i)
\nabove or clause (iii) below) and (iii) the number of shares of Company Common
\nStock issuable upon the conversion, exercise or exchange of any securities held
\nby the Liberty Parties or any of their respective Affiliates as of such date
\n(other than the Preferred Shares), divided<\/u> by (iv) the total number of
\nshares of Company Common Stock outstanding, or issuable (including any shares of
\nCompany Common Stock included in the numerator as a result of (i) and (iii)
\nabove), upon the conversion, exercise or exchange of any In the Money Securities
\nconvertible into, or exercisable or exchangeable for, shares of Company Common
\nStock, as of such date.<\/p>\n (v) “Parity Stock<\/u>” means any class or series of capital stock of the
\nCompany hereafter authorized that expressly ranks on a parity basis with the
\nSeries J Preferred Stock as to the dividend rights, rights of redemption and
\nrights on the distribution of assets on any voluntary or involuntary
\nliquidation, dissolution or winding up of the affairs of Company.<\/p>\n (w) “prospectus<\/u>” means the prospectus included in a registration
\nstatement (including a prospectus that includes any information previously
\nomitted from a prospectus filed as part of an effective registration statement
\nin reliance upon Rule 430A promulgated under the Securities Act), as amended or
\nsupplemented by any prospectus supplement, with respect to the terms of the
\noffering of any portion of the Registrable Securities covered by a registration
\nstatement, and all other amendments and supplements to the prospectus, including
\npost-effective amendments.<\/p>\n (x) “Register<\/u>,” “registered<\/u>” and “registration<\/u>” shall
\nrefer to a registration effected by preparing and filing a registration
\nstatement with the SEC in compliance with the Securities Act and applicable
\nrules and regulations thereunder, and the declaration or ordering of
\neffectiveness of such registration statement by the SEC.<\/p>\n (y) The term “Registrable Securities<\/u>” means the shares of Company
\nCommon Stock issued or issuable upon conversion of the Preferred Shares
\nbeneficially owned (within the meaning of Rules 13d-3 and 13d-5 under the
\nExchange Act as in effect on the date of this Agreement) by the Investor as of
\nthe Closing as a result of the transactions contemplated by this Agreement (as
\nsuch number of shares of Company Common Stock may be adjusted pursuant to the
\nterms of the Certificate of Designations) or shares of Company Common Stock
\npurchased by any Liberty Party pursuant to Section 4.03. As to any particular
\nRegistrable Securities, such securities shall cease to be Registrable Securities
\nwhen (i) a registration statement registering such securities under the
\nSecurities Act has been declared effective and such securities have been sold or
\notherwise Transferred by the holder thereof pursuant to such effective
\nregistration statement, (ii) such securities may be sold without any restriction
\nunder the Securities Act, (iii) such securities shall have been otherwise
\nTransferred or (iv) such securities are no longer outstanding; provided<\/u>,
\nhowever<\/u>, that Registrable Securities held by a Liberty Party or any
\nInvestor or any Affiliate of an Investor will not cease to be Registrable
\nSecurities by reason of clause (iii) of this definition for so long as such
\nRegistrable Securities continue to be held by such Liberty Party or any other
\nLiberty Party or any Investor or any Affiliate of an Investor.<\/p>\n 37<\/p>\n
\n(z) “Registration Expenses<\/u>” shall mean, with respect to any
\nregistration, (i) all expenses incurred by the Company in effecting any
\nregistration pursuant to this Agreement, including all registration and filing
\nfees, printing expenses, fees and disbursements of counsel for the Company, blue
\nsky fees and expenses and (ii) fees and expenses of the Company153s independent
\ncertified public accountants and counsel (including with respect to “comfort”
\nletters and opinions); provided<\/u> that Registration Expenses shall not
\ninclude any Selling Expenses.<\/p>\n (aa) “registration statement<\/u>” means any registration statement that is
\nrequired to register the resale of the Registrable Securities under this
\nAgreement, and including the related prospectus and any pre- and post-effective
\namendments and supplements to each such registration statement or prospectus.\n<\/p>\n (bb) “Representative<\/u>” means, with respect to any person, the
\ndirectors, officers, employees, investment bankers, financial advisors,
\nattorneys, accountants or other advisors, agents or representatives of such
\nperson.<\/p>\n (cc) “Rights Plan<\/u>” means the Rights Agreement dated as of November 17,
\n2009, between the Company and Mellon Investor Services LLC, as amended by
\nAmendment No. 1, dated as of February 17, 2010, Amendment No. 2, dated as of
\nJune 23, 2010, Amendment No. 3, dated as of October 29, 2010 and Amendment No.
\n4, dated as of the date hereof, and any other agreement or plan entered into by
\nthe Company in replacement or substitution therefor.<\/p>\n (dd) “Scheduled Black-out Period<\/u>” means the period from and including
\nthe 10th Business Day preceding the last day of a fiscal quarter of the Company
\nto and including the 3rd Business Day after the day on which the Company
\npublicly releases its earnings for such fiscal quarter.<\/p>\n (ee) “Selling Expenses<\/u>” shall mean all underwriting discounts, selling
\ncommissions and stock transfer taxes, if any, applicable to the sale of
\nRegistrable Securities and all fees and expenses of the Investor (other than
\nsuch fees and expenses included in Registration Expenses).<\/p>\n (ff) “Senior Stock<\/u>” has the meaning set forth in the Certificate of
\nDesignations.<\/p>\n (gg) “Series I Preferred Stock<\/u>” means the preferred stock of the
\nCompany designated as “Series I Preferred Stock”.<\/p>\n (hh) A “Subsidiary<\/u>” of any person means another person, an amount of
\nthe voting securities, other voting rights or voting partnership interests of
\nwhich is sufficient to elect at least a majority of its board of directors or
\nother governing body (or, if there are no such voting interests, more than 50%
\nof the equity interests of which) is owned directly or indirectly by such first
\nperson.<\/p>\n (ii) “Tax<\/u>” or “Taxes<\/u>” means any and all taxes, charges, fees,
\nlevies, customs, duties, tariffs, or other assessments, including income, gross
\nreceipts, excise, real or personal property, sales, withholding, social
\nsecurity, retirement, unemployment, occupation, use, goods and services, service
\nuse, license, value added, capital, net worth, payroll, profits, withholding,
\nfranchise, estimated, alternative minimum, transfer and recording taxes, fees
\nand charges, and any other taxes, charges, fees, levies, customs, duties,
\ntariffs or other assessments imposed by the Internal Revenue Service or any
\ntaxing authority (whether domestic or foreign including any state, county, local
\nor foreign government or any subdivision or taxing agency thereof (including a
\nUnited States possession)), whether computed on a separate, consolidated,
\nunitary, combined or any other basis; and such term shall include any interest
\nthereon, fines, penalties, additions to tax, or additional amounts attributable
\nto, or imposed upon, or with respect to, any such taxes, charges, fees, levies,
\ncustoms, duties, tariffs, or other assessments.<\/p>\n 38<\/p>\n
\nSECTION 6.09. Interpretation.<\/u> When a reference is made in this
\nAgreement to an Article, Section or Schedule, such reference shall be to an
\nArticle or Section of, or a Schedule to, this Agreement unless otherwise
\nindicated. The table of contents and headings contained in this Agreement are
\nfor reference purposes only and shall not affect in any way the meaning or
\ninterpretation of this Agreement. Whenever the words “include”, “includes” or
\n“including” are used in this Agreement, they shall be deemed to be followed by
\nthe words “without limitation”. The words “hereof”, “herein” and “hereunder” and
\nwords of similar import when used in this Agreement shall refer to this
\nAgreement as a whole and not to any particular provision of this Agreement. The
\nword “or” shall not be exclusive. All references to “$” mean the lawful currency
\nof the United States of America. The definitions contained in this Agreement are
\napplicable to the singular as well as the plural forms of such terms and to the
\nmasculine as well as to the feminine and neuter genders of such term. Except as
\nspecifically stated herein, any agreement, instrument or statute defined or
\nreferred to herein or in any agreement or instrument that is referred to herein
\nmeans such agreement, instrument or statute as from time to time amended,
\nmodified or supplemented, including (in the case of agreements or instruments)
\nby waiver or consent and (in the case of statutes) by succession of comparable
\nsuccessor statutes and references to all attachments thereto and instruments
\nincorporated therein. Except as otherwise specified herein, references to a
\nperson are also to its permitted successors and assigns. Each of the parties has
\nparticipated in the drafting and negotiation of this Agreement. If an ambiguity
\nor question of intent or interpretation arises, this Agreement must be construed
\nas if it is drafted by all the parties and no presumption or burden of proof
\nshall arise favoring or disfavoring any party by virtue of authorship of any of
\nthe provisions of this Agreement.<\/p>\n SECTION 6.10. Severability.<\/u> Any term or provision of this Agreement
\nwhich is invalid or unenforceable in any jurisdiction shall, as to that
\njurisdiction, be ineffective to the extent of such invalidity or
\nunenforceability without rendering invalid or unenforceable the remaining terms
\nand provisions of this Agreement in any other jurisdiction. If any provision of
\nthis Agreement is so broad as to be unenforceable, such provision shall be
\ninterpreted to be only so broad as is enforceable.<\/p>\n SECTION 6.11. No Third-Party Beneficiaries.<\/u> Nothing expressed or
\nreferred to in this Agreement will be construed to give any person, other than
\nthe parties to this Agreement and the Liberty Parties to the extent expressly
\nprovided herein, any legal or equitable right, remedy or claim under or with
\nrespect to this Agreement or any provision of this Agreement, except that the
\nprovisions of Section 5.07 shall inure to the benefit of the persons referred to
\nin that section.<\/p>\n SECTION 6.12. Assignment<\/u>. Except as otherwise provided herein, neither
\nthis Agreement nor any of the rights, interests or obligations hereunder shall
\nbe assigned by any of the parties hereto (whether by operation of law or
\notherwise) without the prior written consent of the other parties.<\/p>\n 39<\/p>\n
\nSECTION 6.13. Adjustment of Share Numbers.<\/u> If there is a subdivision,
\nsplit, stock dividend, combination, reclassification or similar event with
\nrespect to any of the shares of Company Common Stock or Series J Preferred Stock
\nreferred to in this Agreement, then, in any such event, the numbers and types of
\nshares of such Company Common Stock and Series J Preferred Stock, as applicable,
\nreferred to in this Agreement shall be adjusted to the number and types of
\nshares of such stock that a holder of such number of shares of such stock would
\nown or be entitled to receive as a result of such event if such holder had held
\nsuch number of shares immediately prior to the record date for, or effectiveness
\nof, such event.<\/p>\n 40<\/p>\n
\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
\nthe parties hereto as of the date first written above.<\/p>\n \n\n\n| <\/td>\n | \n BARNES & NOBLE, INC.,<\/strong><\/p>\n<\/td>\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Eugene V. DeFelice<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Eugene V. DeFelice<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President, Gerneral Counsel<\/p>\n & Corporate Secretary<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 41<\/p>\n
\n\n\n\n| <\/td>\n | \n LIBERTY GIC, INC.<\/strong><\/p>\n<\/td>\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Mark Carleton<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Mark Carleton<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Senior Vice President<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 42<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6857],"corporate_contracts_industries":[9492],"corporate_contracts_types":[9622,9627],"class_list":["post-43434","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-barnes---noble-inc","corporate_contracts_industries-retail__books","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43434","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43434"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43434"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43434"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43434"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | |