XM Radio 2009 Annual Report Download - page 60

RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of April 29, 2009 (the “Agreement”), between Sirius XM Radio Inc., a
Delaware corporation (the “Company”) and The Bank of New York Mellon, a New York banking corporation
(the “Rights Agent”).
WITNESSETH
WHEREAS, on April 28, 2009, the Board authorized and declared a dividend distribution of one right (a
“Right”) for each share of common stock, par value $0.001 per share, of the Company (the “Common Stock”)
outstanding at the Close of Business (as hereinafter defined) on May 11, 2009 (the “Record Date”), each Right
initially representing the right to purchase one one-millionth of a share of Preferred Stock (as hereinafter
defined) of the Company, upon the terms and subject to the conditions hereinafter set forth, and further
authorized and directed the issuance of one Right (subject to adjustment as provided herein) with respect to
each share of Common Stock issued or delivered by the Company (whether originally issued or delivered from
the Company’s treasury) at any time after the Record Date but prior to the Distribution Date (as hereinafter
defined).
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereby agree
as follows:
SECTION 1Certain Definitions
For purposes of this Agreement, the following terms shall have the meanings indicated:
(a) “Acquiring Person” shall mean any Person (other than the Company, any Related Person or any
Exempt Person) that the Board has determined has become, in itself or, together with all Affiliates and
Associates of such Person (but excluding shares held by the Company, any Related Person or any Exempt
Person), the Beneficial Owner of 4.9% or more of the shares of Common Stock then-outstanding
(assuming for purposes of this calculation that all of the Series A Convertible Preferred Stock and
Series B-1 Convertible Preferred Stock are converted into Common Stock), provided, however, that a
Person will not be deemed to have become an Acquiring Person solely as a result of (i) a reduction in the
number of shares of Common Stock outstanding, (ii) the exercise of any options, warrants, rights or
similar interests (including restricted stock) granted by the Company to its directors, officers and
employees, (iii) any unilateral grant of any security by the Company, or (iv) an Exempt Transaction,
unless and until such time as such stockholder acquires the beneficial ownership of one additional share
of Common Stock. Notwithstanding the foregoing, at any time the Board may, in its sole discretion,
determine that any Person shall not be deemed to be an “Acquiring Person” for any purposes of this
Agreement.
(b) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act as in effect on the date of this
Agreement, and to the extent not included within the foregoing clause of this Section 1(b), shall also
include, with respect to any Person, any other Person (other than any Related Person or Exempt Person)
whose shares of Common Stock would be deemed constructively owned by such first Person pursuant to
Section 1.382-4 of the Treasury Regulations, owned by a single “entity” as defined in Sec-
tion 1.382-3(a)(1) of the Treasury Regulations, or otherwise aggregated with shares owned by such first
Person pursuant to the provisions of the Code, or any successor provision or replacement provision, and
the Treasury Regulations thereunder, provided, however, that a Person shall not be deemed to be the
Affiliate or Associate of another Person solely because either or both Persons are or were directors of the
Company.
(c) “Agreement” shall have the meaning set forth in the preamble of this Agreement.
(d) “Authorized Officer” shall mean the Chief Executive Officer, President, any Vice President, the
Treasurer or the Secretary of the Company.
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