XM Radio 2014 Annual Report Download - page 73

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(b) Eligibility. The Committee will, in its sole discretion, designate within the first 90 days of a
Performance Period (or, if longer, within the maximum period allowed under Section 162(m) of the
Code) which Participants will be eligible to receive Performance Compensation Awards in respect of
such Performance Period. Designation of a Participant eligible to receive an Award hereunder for a
Performance Period shall not in any manner entitle the Participant to receive payment in respect of
any Performance Compensation Award for such Performance Period. The determination as to
whether or not such Participant becomes entitled to payment in respect of any Performance
Compensation Award shall be decided solely in accordance with the provisions of this Section 11.
Moreover, designation of a Participant eligible to receive an Award hereunder for a particular
Performance Period shall not require designation of such Participant eligible to receive an Award
hereunder in any subsequent Performance Period and designation of one person as a Participant
eligible to receive an Award hereunder shall not require designation of any other person as a
Participant eligible to receive an Award hereunder in such period or in any other period.
(c) Discretion of Committee with Respect to Performance Compensation Awards. With regard
to a particular Performance Period, the Committee shall have full discretion to select the length of
such Performance Period, the type(s) of Performance Compensation Awards to be issued, the
Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or
level(s) of the Performance Goals(s) is/are to apply to the Company and the Performance Formula,
as applicable. Within the first 90 days of a Performance Period (or, if longer, within the maximum
period allowed under Section 162(m) of the Code), the Committee shall, with regard to the
Performance Compensation Awards to be issued for such Performance Period, exercise its
discretion with respect to each of the matters enumerated in the immediately preceding sentence of
this Section 11(c) and record the same in writing.
(d) Payment of Performance Compensation Awards. (i) Unless otherwise provided in the
applicable Award Agreement, a Participant must be employed by the Company on the last day of a
Performance Period to be eligible for payment in respect of a Performance Compensation Award for
such Performance Period.
(ii) Limitation. A Participant shall be eligible to receive payment in respect of a Performance
Compensation Award only to the extent that: (1) the Performance Goals for such period are
achieved; and (2) the Performance Formula as applied against such Performance Goals determines
that all or some portion of such Participant’s Performance Award has been earned for the
Performance Period.
(iii) Certification. Following the completion of a Performance Period, the Committee shall review
and certify in writing whether, and to what extent, the Performance Goals for the Performance
Period have been achieved and, if so, to calculate and certify in writing that amount of the
Performance Compensation Awards earned for the Performance Period based upon the
Performance Formula. The Committee shall then determine the actual size of each Participant’s
Performance Compensation Award for the Performance Period and, in so doing, may apply
Negative Discretion, if and when it deems appropriate.
(iv) Negative Discretion. In determining the final payout of an individual Performance
Compensation Award for a Performance Period, the Committee may reduce or eliminate the amount
of the Performance Compensation Award earned under the Performance Formula in the
Performance Period through the use of Negative Discretion if, in its sole judgment, such reduction
or elimination is appropriate.
(v) Timing of Award Payments. The Awards granted for a Performance Period shall be paid as
provided for in any applicable Award Agreement.
(vi) Maximum Award Payable. Notwithstanding any provision contained in the Plan to the
contrary, the maximum Performance Compensation Award payable to any one Participant under the
Plan for a Performance Period is 75 million Shares or, in the event the Performance Compensation
Award is paid in cash, the equivalent cash value thereof on the last day of the Performance Period
to which such Performance Compensation Award relates. Furthermore, any Performance
Compensation Award that has been deferred shall not (between the date as of which the
Performance Compensation Award is deferred and the payment date) increase (i) with respect to
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