XM Radio 2009 Annual Report Download - page 62

(h) “Business Day” shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in the States of New York or New Jersey (or such other state in which the principal office of
the Rights Agent may be located) are authorized or obligated by law or executive order to close.
(i) “Close of Business” on any given date shall mean 5:00 P.M., New York City time, on such date;
provided, however, that if such date is not a Business Day, it shall mean 5:00 P.M., New York City time,
on the next succeeding Business Day.
(j) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(k) “Common Stock” shall have the meaning set forth in the preamble of this Agreement.
(l) “Company” shall have the meaning set forth in the preamble of this Agreement.
(m) “Company’s Certificate of Incorporation” shall mean the Certificate of Incorporation of the
Company, as amended.
(n) “Current Per Share Market Price” shall have the meaning set forth in Section 11(d)(i) or
Section 11(d)(ii) hereof, as applicable.
(o) “Current Value” shall have the meaning set forth in Section 11(a)(iii) hereof.
(p) “Distribution Date” shall mean the Close of Business on the tenth Business Day after the Stock
Acquisition Date.
(q) “Equivalent Preferred Stock” shall have the meaning set forth in Section 11(b) hereof.
(r) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(s) “Exchange Ratio” shall have the meaning set forth in Section 24(a) hereof
(t) “Exempt Person” shall mean each of (i) any Liberty Party, (ii) any Person whose Beneficial
Ownership (together with all Affiliates and Associates of such Person) of 4.9% or more of the then-
outstanding Common Stock (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) would
not, as determined by the Board in its sole discretion, jeopardize or endanger the availability to the
Company of its Tax Benefits and (iii) any Person that beneficially owns, as of the date hereof, 4.9% or
more of the outstanding shares of Common Stock (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, with respect to clause (iii) of this paragraph, any such Person
shall only be deemed to be an Exempt Person under such clause (iii) for so long as it beneficially owns
no more than the amount of Common Stock it owned on the date hereof; and provided, further, that, with
respect to clauses (ii) and (iii) of this paragraph, any Person shall cease to be an Exempt Person under
such clauses (ii) and (iii), as applicable, as of the date that such Person ceases to beneficially own 4.9%
or more of the then outstanding Common Stock (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). Additionally, a Person shall cease to be an Exempt Person with respect to clause (ii) of
this paragraph if the Board, in its sole discretion, makes a contrary determination with respect to the
effect of such Person’s Beneficial Ownership (together with all Affiliates and Associates of such Person)
with respect to the availability to the Company of its Tax Benefits.
(u) “Exempt Transaction” shall mean any transaction that the Board determines, in its sole
discretion, is exempt, which determination shall be irrevocable.
(v) “Expiration Date” shall mean the earliest of (i) the Final Expiration Date, (ii) the time at which
the Rights are redeemed as provided in Section 23 hereof, (iii) the time at which the Rights are
exchanged as provided in Section 24 hereof, (iv) the repeal of Section 382 of the Code or any successor
statute if the Board determines that this Agreement is no longer necessary for the preservation of Tax
Benefits, (v) the beginning of a taxable year of the Company to which the Board determines that no Tax
Benefits may be carried forward and (vi) June 30, 2010, if Stockholder Approval has not been obtained.
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