XM Radio 2009 Annual Report Download - page 61

(e) A Person shall be deemed the “Beneficial Owner” of, and to “beneficially own” any securities:
(i) which such Person or any of such Person’s Affiliates or Associates, directly or indirectly,
has the right to acquire (whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon
the exercise of conversion rights, exchange rights, warrants, options, or other rights (in each case,
other than upon exercise or exchange of the Rights); provided, however, that a Person shall not be
deemed the “Beneficial Owner” of, or to ‘‘beneficially own” securities (including rights, options or
warrants) which are convertible or exchangeable into Common Stock until such time as the
convertible or exchangeable securities are exercised and converted or exchanged into Common Stock
except to the extent the acquisition or transfer of such rights, options or warrants would be treated as
exercised on the date of its acquisition or transfer under Section 1.382-4(d) of the Treasury
Regulations; and, provided further, however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own securities tendered pursuant to a tender or exchange offer made by such
Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted for
purchase or exchange;
(ii) which such Person or any of such Person’s Affiliates or Associates, directly or indirectly,
has or shares the right to vote or dispose of, or has “beneficial ownership” of (as defined under
Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including pursuant to
any agreement, arrangement or understanding (whether or not in writing), but only if the effect of
such agreement, arrangement or understanding is to treat such Persons as an “entity” under
Section 1.382-3(a)(1) of the Treasury Regulations, or
(iii) which any other person is the Beneficial Owner, if such Person or any of such Person’s
Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing)
with such other Person (or any of such other Person’s Affiliates or Associates) with respect to
acquiring, holding, voting or disposing of any securities of the Company, but only if the effect of
such agreement, arrangement or understanding is to treat such Persons as an “entity” under
Section 1.382-3(a)(1) of the Treasury Regulations; provided, however, that a Person shall not be
deemed the “Beneficial Owner” of, or to “beneficially own” any security (A) if such Person has the
right to vote such security pursuant to an agreement, arrangement or understanding (whether or not
in writing) which (1) arises solely from a revocable proxy given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules
and regulations of the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report), or (B) if such beneficial ownership arises
solely as a result of such Person’s status as a “clearing agency,” as defined in Section 3(a)(23) of the
Exchange Act; provided further, however, that nothing in this Section 1(e) shall cause a Person
engaged in business as an underwriter of securities or member of a selling group to be the Beneficial
Owner of, or to “beneficially own,” any securities acquired through such Person’s participation in
good faith in an underwriting syndicate until the expiration of 40 calendar days after but not
including the date of such acquisition, or such later date as the directors of the Company may
determine in any specific case. Notwithstanding anything herein to the contrary, to the extent not
within the foregoing provisions of this Section 1(e), a Person shall be deemed the “Beneficial
Owner” of and shall be deemed to “beneficially own” or have “beneficial ownership” of, securities
which such Person would be deemed to constructively own or which otherwise would be aggregated
with shares owned by such pursuant to Section 382 of the Code, or any successor provision or
replacement provision and the Treasury Regulations thereunder.
(f) “B-1 Consent Right Termination Date” shall have the meaning set forth in Section 24(a) hereof.
(g) “Board” shall mean the Board of Directors of the Company.
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