XM Radio 2009 Annual Report Download - page 83

give, or any defect in, such announcement or notice shall not affect the validity of such exchange. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the exchange of the shares of Common
Stock for Rights shall be effected.
(c) In the event that there shall not be sufficient shares of Common Stock issued but not outstanding or
authorized but unissued (and unreserved) to permit an exchange of Rights as contemplated in accordance with
this Section 24, the Company shall substitute to the extent of such insufficiency, for each share of Common
Stock that would otherwise be issuable upon exchange of a Right, (i) Common Stock Equivalents, as such
term is used in Section 11(a)(iii), (ii) cash, (iii) debt securities of the Company, (iv) other assets or (v) any
combination of the foregoing, in any event having an aggregate value, as determined in good faith by the
Board (whose determination shall be described in a statement filed with the Rights Agent), equal to the
Current Per Share Market Price of one share of Common Stock (determined pursuant to Section 11(d)) on the
Trading Day immediately preceding the date of the effectiveness of the exchange pursuant to this Section 24.
(d) The exchange of the Rights by the Board may be made effective at such time, on such basis and with
such conditions as the Board in its sole discretion may establish. Without limiting the foregoing, prior to
effecting an exchange pursuant to this Section 24, the Board may direct the Company to enter into a
Trust Agreement in such form and with such terms as the Board of Directors shall then approve (the
“Trust Agreement”). If the Board of Directors so directs, the Company shall enter into the Trust Agreement
and shall issue to the trust created by such agreement (the “Trust”) all of the shares of Common Stock (or
substitute securities or assets pursuant to Section 24(c)) issuable pursuant to the exchange (or any portion
thereof that have not theretofore been issued in connection with the exchange). From and after the time at
which such shares are issued to the Trust, all Persons then entitled to receive shares pursuant to the exchange
shall be entitled to receive such shares (or substitute securities or assets pursuant to Section 24(c)) (and any
dividends or distributions made thereon after the date on which such shares are deposited in the Trust) only
from the Trust and solely upon compliance with the relevant terms and provisions of the Trust Agreement.
Any shares of capital stock issued at the direction of the Board in connection herewith shall be validly issued,
fully paid and nonassessable shares of Common Stock or Preferred Stock (as the case may be), and the
Company shall be deemed to have received as consideration for such issuance a benefit having a value that is
at least equal to the aggregate par value of the shares so issued.
(e) Notwithstanding any other provision of this Agreement, prior to the B-1 Consent Right Termination
Date, the Company shall not in any way amend or supplement this Section 24 without the prior written
consent of the holders of a majority of the Series B-1 Preferred Stock.
SECTION 25 Notice of Certain Events
(a) If the Company proposes to (i) pay any dividend payable in stock of any class to the holders of shares
of Preferred Stock or to make any other distribution to the holders of shares of Preferred Stock (other than a
regular periodic cash dividend), (ii) offer to the holders of shares of Preferred Stock rights, options, warrants
or any similar instrument to subscribe for or to purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options, (iii) effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of outstanding shares of Preferred Stock),
(iv) effect any consolidation or merger into or with any other Person, (v) to effect the liquidation, dissolution
or winding up of the Company or (vi) declare or pay any dividend on the shares of Common Stock payable in
shares of Common Stock or to effect a subdivision, combination or reclassification of the Common Stock then,
in each such case, the Company shall give to the Rights Agent and, to the extent possible, to each holder of a
Rights Certificate, in accordance with Section 26 hereof, a notice of such proposed action, which shall specify
the record date for the purposes of such stock dividend, distribution or offering of rights, warrants, options or
any similar instrument or the date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of participation therein by the holders of
the shares of Preferred Stock, if any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least ten (10) days prior to but not including the record date
for determining holders of the shares of Common Stock and/or Preferred Stock for purposes of such action,
A-24