XM Radio 2008 Annual Report Download - page 184

be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall
remain in full force and effect.
(k) Other Laws. The Committee may refuse to issue or transfer any Shares or other consideration under
an Award if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such
other consideration might violate any applicable law or regulation or entitle the Company to recover the same
under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other
holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant
Participant, holder or beneficiary. Without limiting the generality of the foregoing, no Award granted hereunder
shall be construed as an offer to sell securities of the Company, and no such offer shall be outstanding, unless
and until the Committee in its sole discretion has determined that any such offer, if made, would be in
compliance with all applicable requirements of the U.S. federal securities laws.
(l) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a
trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and a
Participant or any other Person. To the extent that any Person acquires a right to receive payments from the
Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured
general creditor of the Company or any Affiliate.
(m) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any
Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or
transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be
canceled, terminated, or otherwise eliminated.
(n) Deferrals. In the event the Committee permits a Participant to defer any Award payable in the form
of cash, all such elective deferrals shall be accomplished by the delivery of a written, irrevocable election by
the Participant on a form provided by the Company. All deferrals shall be made in accordance with
administrative guidelines established by the Committee to ensure that such deferrals comply with all applicable
requirements of Section 409A of the Code.
(o) Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to
facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
SECTION 15. Compliance with Section 409A of the Code.
(a) To the extent applicable, it is intended that this Plan and any grants made hereunder comply with the
provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the
Code do not apply to the Participants. This Plan and any grants made hereunder shall be administered in a
manner consistent with this intent.
(b) Neither a Participant nor any of a Participant’s creditors or beneficiaries shall have the right to subject
any deferred compensation (within the meaning of Section 409A of Code) payable under this Plan and grants
hereunder to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment. Except as permitted under Section 409A of the Code, any deferred compensation (within the
meaning of Section 409A of the Code) payable to a Participant or for a Participant’s benefit under this Plan
and grants hereunder may not be reduced by, or offset against, any amount owing by a Participant to the
Company or any of its Affiliates.
(c) If, at the time of a Participant’s separation from service (within the meaning of Section 409A of the
Code), (i) the Participant shall be a specified employee (within the meaning of Section 409A of the Code and
using the identification methodology selected by the Company from time to time) and (ii) the Company shall
make a good faith determination that an amount payable hereunder constitutes deferred compensation (within
the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-
month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A
of the Code, then the Company shall not pay such amount on the otherwise scheduled payment date but shall
instead pay it, with interest, on the earlier of the first business day of the seventh month or death.
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