XM Radio 2009 Annual Report Download - page 90

(c) Except as set forth herein, or as otherwise provided by law, holders of Series C Preferred shall have
no special voting rights and their consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate action.
SECTION 4Restrictions.
(a) Whenever dividends or distributions payable on the Series C Preferred are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series C
Preferred outstanding have been paid in full, the Company will not:
(i) Declare or pay dividends, or make any other distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) (“Junior Stock”) to the shares of
Series C Preferred;
(ii) Declare or pay dividends, or make any other distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up) (“Parity Stock”) with the
shares of Series C Preferred, except dividends paid ratably on the shares of Series C Preferred and all
such Parity Stock on which dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) Redeem, purchase or otherwise acquire for consideration shares of any Junior Stock; provided,
however, that the Company may at any time redeem, purchase or otherwise acquire shares of any such
Junior Stock in exchange for shares of any other Junior Stock of the Company; or
(iv) Redeem, purchase or otherwise acquire for consideration any shares of Series C Preferred, or
any shares of Parity Stock, except in accordance with a purchase offer made in writing or by publication
(as determined by the Board) to all holders of such shares upon such terms as the Board, after
consideration of the respective annual dividend rates and other relative rights and preferences of the
respective series and classes, may determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(b) The Company will not permit any majority-owned subsidiary of the Company to purchase or
otherwise acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5Reacquired Shares. Any shares of Series C Preferred purchased or otherwise acquired by
the Company in any manner whatsoever will be retired and canceled promptly after the acquisition thereof.
All such shares will upon their cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on
issuance set forth herein, in the Certificate of Incorporation of the Company, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or as otherwise required by law.
SECTION 6Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of
the Company, no distribution will be made (a) to the holders of shares of Junior Stock unless, prior thereto,
the holders of shares of Series C Preferred have received an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment; provided, however, that the
holders of shares of Series C Preferred will be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to a minimum per share liquidation payment of $1,000 but
will be entitled to an aggregate per share liquidation payment of 1,000,000 times the payment made per share
of Common Stock or (b) to the holders of shares of Parity Stock, except distributions made ratably on the
shares of Series C Preferred and all such Parity Stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Company at
any time (i) declares a dividend on the outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivides the outstanding shares of Common Stock, (iii) combines the outstanding shares of
Common Stock into a smaller number of shares or (iv) issues any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing or surviving corporation), then, in
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