XM Radio 2009 Annual Report Download - page 76

price for any Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading on the Nasdaq
or, if the Rights are not listed or admitted to trading on the Nasdaq, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading or, if the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the Nasdaq or such other system then in use or, if
on any such date the Rights are not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Rights, such market maker to be
selected by the Board. If the Rights are not publicly held or are not so listed or traded, or are not the subject
of available bid and asked quotes, the current market value of one Right shall mean the fair value thereof as
determined in good faith by the Board, whose determination shall be described in a statement filed with the
Rights Agent.
(b) The Company shall not be required to issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-millionth of a share of Preferred Stock) upon exercise of the
Rights or to distribute certificates which evidence fractional shares of Preferred Stock (other than fractions
which are integral multiples of one one-millionth of a share of Preferred Stock). Fractions of Preferred Stock
in integral multiples of one one-millionth of such Preferred Stock may, in the sole discretion of the Company,
be evidenced by depositary receipts pursuant to an appropriate agreement between the Company and a
depositary selected by it, provided that such agreement provides that the holders of such depositary receipts
have all the rights, privileges and preferences to which they are entitled as beneficial owners of the Preferred
Stock represented by such depositary receipts. In lieu of fractional shares of Preferred Stock that are not
integral multiples of one one-millionth of a share of Preferred Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one one-millionth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value of one one-millionth of a share of Preferred Stock
shall be one one-millionth of the closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii) hereof) for the Trading Day immediately prior to the date of such exercise; provided,
however, that if the closing price of the shares of the Preferred Stock cannot be so determined, the closing
price of the shares of the Preferred Stock for such Trading Day shall be conclusively deemed to be an amount
equal to the closing price of the shares of Common Stock shares for such Trading Day multiplied by one
million (as such number may be appropriately adjusted to reflect events such as stock splits, stock dividends,
recapitalizations or similar transactions relating to the Common Stock shares occurring after the date of this
Agreement).
(c) Following the occurrence of any Person becoming an Acquiring Person, the Company shall not be
required to issue fractions of shares of Common Stock upon exercise or exchange of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In lieu of issuing any such fractional
securities, the Company may pay to any Person to whom or which such fractional securities would otherwise
be issuable an amount in cash equal to the same fraction of the current market value of one such security. For
purposes of this Section 14(c), the current market value of one share of Common Stock, or other security
issuable upon the exercise or exchange of Rights shall be the closing price thereof (as determined pursuant to
Section 11(d)(i) hereof) on the Trading Day immediately prior to the date of such exercise or exchange.
(d) The holder of a Right by the acceptance of the Rights expressly waives his right to receive any
fractional Rights or any fractional shares upon exercise of a Right, except as permitted by this Section 14.
(e) Whenever a payment for fractional Rights or fractional shares is to be made by the Rights Agent, the
Company shall (i) promptly prepare and deliver to the Rights Agent a certificate setting forth in reasonable
detail the facts related to such payments and the prices and/or formulas utilized in calculating such payments,
and (ii) provide sufficient monies to the Rights Agent in the form of fully collected funds to make such
payments. The Rights Agent shall be fully protected in relying upon such a certificate and shall have no duty
with respect to, and shall not be deemed to have knowledge of any payment for fractional Rights or fractional
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