XM Radio 2008 Annual Report Download - page 181

(iv) Negative Discretion. In determining the actual size of an individual Performance Award for a
Performance Period, the Committee may reduce or eliminate the amount of the Performance Compensation
Award earned under the Performance Formula in the Performance Period through the use of Negative
Discretion if, in its sole judgment, such reduction or elimination is appropriate.
(v) Timing of Award Payments. The Awards granted for a Performance Period shall be paid to
Participants as soon as administratively possible following completion of the certifications required by this
Section 11; provided that in no event shall any Award granted for a Performance Period be paid later than the
fifteenth day of the third month following the end of such Performance Period.
(vi) Maximum Award Payable. Notwithstanding any provision contained in the Plan to the contrary, the
maximum Performance Compensation Award payable to any one Participant under the Plan for a Performance
Period is 120 million Shares or, in the event the Performance Compensation Award is paid in cash, the
equivalent cash value thereof on the last day of the Performance Period to which such Award relates.
Furthermore, any Performance Compensation Award that has been deferred shall not (between the date as of
which the Award is deferred and the payment date) increase (i) with respect to Performance Compensation
Award that is payable in cash, by a measuring factor for each fiscal year greater than a reasonable rate of interest
set by the Committee or (ii) with respect to a Performance Compensation Award that is payable in Shares, by an
amount greater than the appreciation of a Share from the date such Award is deferred to the payment date.
SECTION 12. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or
any portion thereof at any time; provided that if an amendment to the Plan that (i) would materially increase the
benefits accruing to Participants under the Plan, (ii) would materially increase the number of securities which
may be issued under the Plan, (iii) would materially modify the requirements for participation in the Plan or
(iv) must otherwise be approved by the stockholders of the Company in order to comply with applicable law or
the rules of the Nasdaq Stock Market, or, if the Shares are not traded on the Nasdaq Stock Market, the principal
national securities exchange upon which the Shares are traded or quoted, such amendment will be subject to
stockholder approval and will not be effective unless and until such approval has been obtained; and provided,
further, that any such amendment, alteration, suspension, discontinuance or termination that would impair the
rights of any Participant or any holder or beneficiary of any Award previously granted shall not be effective
without the written consent of the affected Participant, holder or beneficiary.
(b) Amendments to Awards. The Committee may waive any conditions or rights under, amend any terms
of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would impair the
rights of any Participant or any holder or beneficiary of any Award previously granted shall not be effective
without the written consent of the affected Participant, holder or beneficiary.
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events. The
Committee is hereby authorized to make equitable adjustments in the terms and conditions of, and the criteria
included in, all outstanding Awards in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4(b) hereof) affecting the Company, any Affiliate, or the financial
statements of the Company or any Affiliate, or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.
(d) Repricing. Except in connection with a corporate transaction or event described in Section 4(b)
hereof, the terms of outstanding Awards may not be amended to reduce the exercise price of Options or the
grant price of Stock Appreciation Rights, or cancel Options or Stock Appreciation Rights in exchange for
cash, other awards or Options or Stock Appreciation Rights with an exercise price or grant price, as applicable,
that is less than the exercise price of the original Options or grant price of the original Stock Appreciation
Rights, as applicable, without stockholder approval.
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