XM Radio 2009 Annual Report Download - page 78

upon the holder of any Rights Certificate, by means of such possession, any of the rights of a stockholder of
the Company including any right to vote on any matter submitted to stockholders at any meeting thereof,
including the election of directors, or to give or withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting stockholders (except as provided in Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Rights Certificate
have been exercised in accordance with the provisions of this Agreement.
SECTION 18 Concerning the Rights Agent
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by
it hereunder, and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees
and other disbursements incurred in the negotiation, preparation, delivery, amendment, administration and
execution of this Agreement and the exercise and performance of its duties hereunder. The Company also
agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, damage,
judgment, fine, penalty, claim, demand, settlement, cost or expense incurred without gross negligence, bad
faith or willful misconduct on the part of the Rights Agent (which gross negligence, bad faith or willful
misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction), for
any action taken, suffered or omitted by the Rights Agent in connection with the acceptance, administration,
exercise and performance of its duties and responsibilities under this Agreement and the exercise of its rights
hereunder, including the costs and expenses of defending against any claim of liability arising therefrom,
directly or indirectly. The costs and expenses of enforcing this right of indemnification will also be paid by
the Company. The provisions of this Section 18 and Section 20 shall survive the exercise, exchange,
redemption or expiration of the Rights, the resignation, replacement or removal of the Rights Agent and the
termination of this Agreement.
(b) The Rights Agent may conclusively rely on, and will be authorized and protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in connection with, its acceptance or
administration of this Agreement and the exercise and performance of its duties and responsibilities and the
exercise of its rights hereunder, in reliance upon any Rights Certificate or certificate evidencing shares of
Preferred Stock, Common Stock or other securities of the Company, or any instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be signed, executed and, where necessary, verified
or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel as set forth in
Section 20 hereof. The Rights Agent shall not be deemed to have knowledge of any event of which it was
supposed to receive notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no
liability for failing to take action in connection therewith unless and until it has received such notice in
writing.
(c) Notwithstanding anything in this Agreement to the contrary, in no event will the Rights Agent be
liable for special, punitive, indirect, incidental or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action.
SECTION 19 Merger, Consolidation or Change of Name of Rights Agent
(a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which
it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent is a party, or any Person succeeding to the shareholder services business of the
Rights Agent or any successor Rights Agent, will be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided
that such Person would be eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. If at the time such successor Rights Agent shall succeed to the agency created by this
Agreement any of the Rights Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and if at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights Certificates either in the name of the
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