UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 15, 2023 (December 14, 2023)
SIRIUS XM HOLDINGS INC.
(Exact Name of Registrant as Specified in
Charter)
Delaware | 001-34295 | 38-3916511 |
(State or Other Jurisdiction
of Incorporation)
| (Commission File Number) | (I.R.S. Employer
Identification No.)
|
1221 Avenue of the Americas, 35th Fl., New York, NY | 10020 |
(Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (212) 584-5100 |
N/A |
(Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered
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| | |
Common Stock, par value $0.001 per share | SIRI | The Nasdaq Stock Market LLC |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities
Exchange Act of 1934.
Emerging
growth company ☐
If an
emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02. |
Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
On December 14,
2023 (the “Effective Date”), our subsidiary, Sirius XM Radio Inc., entered into a new Employment Agreement with Jennifer
C. Witz to continue to serve as our Chief Executive Officer through December 31, 2026 (the “Employment Agreement”).
Pursuant to the Employment Agreement, Ms. Witz’s annual base salary will continue to be $1,750,000 through December 31,
2023, and will increase to $2,000,000 on January 1, 2024. The Employment Agreement entitles Ms. Witz to participate in any bonus
plan generally applicable to our executive officers and provides for an annual target bonus equal to three times her base salary.
The Employment
Agreement provides, in the case of certain qualifying terminations, for continuation of her health insurance benefits for eighteen
months and her life insurance benefits for twelve months and for a lump sum severance payment in an amount equal to one and a
half times the sum of (i) Ms. Witz’s annual base salary, and (ii) the greater of (1) her target annual bonus or (2) the
last annual bonus paid (or due and payable) to her. In the case of certain qualifying terminations, we are also obligated to pay
her a pro-rated bonus for the year in which the termination occurs (based on actual achievement of applicable performance criteria)
and any earned but unpaid bonus for the year prior to the termination. Our obligation to provide these severance benefits to Ms.
Witz is subject to Ms. Witz’s execution of an effective release of claims against us. The Employment Agreement also contains
other provisions contained in her existing employment agreement, including confidentiality and non-competition restrictions, as
well as a compensation clawback to the extent required by our policies or applicable law, regulations or stock exchange listing
requirement.
In connection with
entering into the Employment Agreement, on the second business day following the day that the trading window for our employees
opens following the Effective Date, which date is expected to be the second business day following the filing of our Annual Report
on Form 10-K for the year ended December 31, 2023, we have agreed to grant Ms. Witz:
● an
option to purchase shares of our common stock having a value, calculated based upon the Black-Scholes-Merton option pricing model
using the financial inputs consistent with those we use for financial reporting purposes, of $16,500,000 at an exercise price
equal to the closing sale price of our common stock on the Nasdaq Global Select Market on that day. This option award will vest
in three equal installments on December 31, 2024, December 31, 2025 and December 31, 2026.
● time-based
restricted stock units (“RSUs”) having a grant value of $3,300,000. This time-based RSU award will vest in three equal
installments on December 31, 2024, December 31, 2025 and December 31, 2026.
● performance-based
RSUs having a grant value of $6,600,000. This performance-based RSU award will cliff vest on December 31, 2026 after a two-year
performance period beginning on January 1, 2024 and ending on December 31, 2025 if a cumulative free cash flow target established
by the Compensation Committee is achieved, subject to her continued employment through December 31, 2026.
● performance-based
RSUs having a grant value of $6,600,000. This performance-based RSU award will cliff vest following a three-year performance period
commencing on January 1, 2024 and ending on December 31, 2026 based on the performance of our common stock relative to the companies
in the S&P 500 Index. Ms. Witz will vest in this award on December 31, 2026, subject to the Compensation Committee’s
later certification of our performance during that performance period and her continued employment through December 31, 2026.
If we do not mutually
agree to a new employment agreement with Ms. Witz on or prior to December 15, 2026 and Ms. Witz’s employment with the Company
terminates on December 31, 2026 or any date thereafter, other than as a result of her termination by us for Cause, then Ms. Witz
will remain eligible to receive a bonus for calendar year 2026 and all stock options held by Ms. Witz that are then vested will
remain exercisable for their remaining term. Except as noted above, each of the awards will be subject to acceleration or termination
under certain circumstances consistent with the terms of equity awards granted to our other
executive officers.
Additional information
about the benefit plans and programs generally available to our executive officers is included in the Proxy Statement for our
2023 annual meeting of stockholders filed with the Securities and Exchange Commission on April 21, 2023.
We also entered
into an agreement with Ms. Witz that entitles her to a limited number of hours of personal flight time on a private aircraft.
This agreement will expire on the first to occur of: the date that Ms. Witz ceases to be employed by us as a full-time employee
under the Employment Agreement, and December 31, 2026. Personal use of the aircraft will be treated as income to Ms. Witz, and
we are not required to provide her with any “gross up” for additional related taxes.
The foregoing description
is qualified in its entirety by the Employment Agreement attached as Exhibit 10.1 and the aircraft letter agreement attached as
Exhibit 10.2 to this Current Report on Form 8-K.
Item 9.01. |
Statements and Exhibits |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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SIRIUS XM HOLDINGS INC. |
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|
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By: |
/s/ Patrick L. Donnelly |
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Patrick L. Donnelly |
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Executive Vice President, General |
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Counsel and Secretary |
Dated: December 15, 2023
false
0000908937
0000908937
2023-12-14
2023-12-14
Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this “Agreement”),
dated as of December 14, 2023 (the “Effective Date”), is between SIRIUS XM RADIO INC., a Delaware corporation (the
“Company”), and JENNIFER C. WITZ (the “Executive”).
WHEREAS, the Company and the Executive previously
entered into an employment agreement dated as of September 14, 2020 (as amended, the “Prior Agreement”); and
WHEREAS, the Company and the Executive jointly desire
to enter into this Agreement, which shall replace and supersede the Prior Agreement in its entirety as of the Effective Date.
In consideration of the mutual covenants and conditions
set forth herein, the Company and the Executive agree as follows:
1. Employment.
Subject to the terms and conditions of this Agreement, the Company hereby employs the Executive, and the Executive hereby agrees to continue
her employment with the Company.
2. Duties
and Reporting Relationship. (a) The Executive shall continue to be employed as the Chief Executive Officer of both the Company and
Sirius XM Holdings Inc. (“Holdings”), and shall have the rights, powers, authorities and duties commensurate with the
position of the Chief Executive Officer. The Executive shall also continue as a member of the Board of Directors of Holdings (or the board
of directors of the New Parent Company (as defined below), as applicable (the “Board”)) and, during the Term (as defined
below), the Company shall nominate and recommend to the stockholders of the Company (or the New Parent Company, as applicable, except
in the event that Liberty Media Corporation is New Parent Company) that the Executive be elected to the Board, except in the event that
Liberty Media Corporation is New Parent Company) whenever the Executive is scheduled to stand or stands for reelection to the Board at
any of the Company’s (or the New Parent Company’s, as applicable, except in the event that Liberty Media Corporation is New
Parent Company) annual stockholder meetings (or such other meeting at which the Executive would be eligible to stand for reelection) during
the Term. During the Term, the Executive shall, on a full-time basis and consistent with the needs of the Company and Holdings to achieve
the goals of the Company and Holdings, use her skills and render services to the best of her ability, and devote all of her working time
and efforts, in supervising the business affairs of the Company and Holdings. In addition, the Executive shall perform such other activities
and duties consistent with her position as the Board shall from time to time reasonably specify and direct. During the Term, the Executive
shall not perform any consulting services for, or engage in any other business enterprises with, any third parties without the express
written consent of the Board, other than (i) passive investments; and (ii) service on other boards of directors with the express written
consent of the Board.
(b) The
Executive shall generally perform her duties and conduct her business at the principal offices of the Company in New York, New York.
(c) Unless
otherwise required by law, administrative regulation or the listing standards of the exchange on which Holdings’ shares are primarily
traded, the Executive, in her capacity as Chief Executive Officer, shall report solely and exclusively to the full Board.
3. Term.
The term of this Agreement shall commence on the Effective Date and shall end on December 31, 2026 (the “Term End Date”),
unless terminated earlier pursuant to the provisions of Section 6 (as applicable, the “Term”).
4. Compensation.
(a) During the Term, the Executive shall be paid an annual base salary from the Effective Date through December 31, 2023 of $1,750,000
and an annual base salary from January 1, 2024 through December 31, 2026 of $2,000,000, which annual base salary shall be subject to increase
(but not decrease), with the approval of the Board or any committee thereof (the annual base salary as in effect from time to time, the
“Base Salary”). All amounts paid to the Executive under this Agreement shall be in U.S. dollars. The Base Salary shall
be paid at least monthly and, at the option of the Company, may be paid more frequently.
(b) On
the second business day following the Effective Date on which Holdings and the Executive are not subject to a blackout restriction, which
date is expected to be the second business day following the filing by Holdings of its Annual Report on Form 10-K for the year ended December
31, 2023 (such date, as applicable, the “Grant Date”), the Company shall cause Holdings to grant to the Executive the
following:
(i) an
option to purchase shares of Holdings’ common stock, par value $0.001 per share (the “Common Stock”), at an exercise
price equal to the closing price of the Common Stock on the Nasdaq Global Select Market on the Grant Date, with the number of shares of
Common Stock subject to such option being that necessary to cause the Black-Scholes-Merton value of such option on the Grant Date to be
equal to $16,500,000, determined by using inputs consistent with those Holdings uses for its financial reporting purposes. Such option
shall be subject to the terms and conditions set forth in the Option Agreement attached to this Agreement as Exhibit A (or on a form of
award agreement that is substantially the same, but under a successor equity incentive plan);
(ii) a
number of restricted stock units (“RSUs”) equal to $3,300,000, divided by the average closing price of the Common Stock
on the Nasdaq Global Select Market for the twenty (20)-trading day period preceding, but not including, the Grant Date. Such RSUs shall
be subject to the terms and conditions set forth in the Restricted Stock Unit Agreement attached to this Agreement as Exhibit B (or on
a form of award agreement that is substantially the same, but under a successor equity incentive plan);
(iii) a
number of performance-based restricted stock units (“PRSUs”) equal to $6,600,000, divided by the average closing price of
the Common Stock on the Nasdaq Global Select Market for the twenty (20)-trading day period preceding, but not including, the Grant Date.
Such PRSUs shall be subject to the terms and conditions set forth in the Performance–Based Restricted Stock Unit Agreement (Free
Cash Flow) attached to this Agreement as Exhibit C (or on a form of award agreement that is substantially the same, but under a successor
equity incentive plan); and
(iv) a
number of PRSUs equal to $6,600,000, divided by the average closing price of the Common Stock on the Nasdaq Global Select Market for the
twenty (20)-trading day period preceding, but not including, the Grant Date. Such PRSUs shall be subject to the terms and conditions set
forth in the Performance–Based Restricted Stock Unit Agreement (Relative TSR) attached to this Agreement as Exhibit D (or on a form
of award agreement that is substantially the same, but under a successor equity incentive plan).
(c) All
compensation paid to the Executive hereunder shall be subject to any payroll and withholding deductions required by applicable law, including,
as and where applicable, federal, New York State and New York City income tax withholding, federal unemployment tax and social security
(FICA).
5. Additional
Compensation; Expenses and Benefits. (a) During the Term, the Company shall reimburse the Executive for all reasonable and necessary
business expenses incurred and advanced by her in carrying out her duties under this Agreement; provided that such expenses are
incurred in accordance with the policies and procedures established by the Company. The Executive shall present to the Company an itemized
account of all expenses in such form as may be required by the Company from time to time.
(b) During
the Term, the Executive shall be eligible to participate fully in any other benefit plans, programs, policies and fringe benefits which
may be made available to the executive officers of the Company and/or Holdings generally, including, without limitation, disability, medical,
dental and life insurance and benefits under the Company’s and/or Holdings’ 401(k) savings plan and deferred compensation
plan.
(c) During
the Term, the Executive shall be entitled to participate in any bonus plans generally offered to executive officers of the Company and/or
Holdings. The Executive’s annual bonus (the “Bonus”), if any, shall be determined annually by the Board or the
compensation committee of the Board (the “Compensation Committee”). During the Term, the Executive shall have a target
Bonus opportunity of 300% of the Base Salary as in effect for the applicable portion of the Term, which shall be subject to increase (but
not decrease) in the discretion of the Compensation Committee from time to time. Bonus(es) shall be subject to the Executive’s individual
performance and/or satisfaction of objectives established by the Board or the Compensation Committee (which goals and objectives shall
be communicated to the Executive in writing no later than March 31st of the year to which the Bonus relates), and further are
subject to the exercise of discretion by the Compensation Committee. The Executive’s Bonus for a year, if any, shall be paid in
the form of cash and will be paid by March 15th of the following year.
(d) During
the Term, the Company shall provide a car and driver for the Executive’s use for travel to and from her home to the Company’s
offices in New York, New York, or reimburse the Executive for up to $2,000 per month to cover the costs of a car and driver or other travel-related
expenses (such as parking if the Executive drives her own car) associated with travel to and from her home to the Company’s offices
in New York, New York (in accordance with Section 5(a)).
6. Termination.
The date upon which the Executive’s employment with the Company under this Agreement is deemed to be terminated in accordance with
any of the provisions of this Section 6 is referred to herein as the “Termination Date.” With respect to any payment
or benefits that would be considered deferred compensation subject to Section 409A (“Section 409A”) of the Internal
Revenue Code of 1986, as amended (the “Code”), and which are payable upon or following a termination of employment,
a termination of employment shall not be deemed to have occurred unless such termination also constitutes a “separation from service”
within the meaning of Section 409A and the regulations thereunder (a “Separation from Service”), and notwithstanding
anything contained herein to the contrary, the date on which a Separation from Service takes place shall be the Termination Date. In the
event of the Executive’s death, any amounts owed to the Executive hereunder shall instead be paid to the Executive’s designated
beneficiary (or, if none, to the Executive’s estate).
(a) The
Company has the right and may elect to terminate the Executive’s employment under this Agreement with or without Cause at any time.
For purposes of this Agreement, “Cause” means the occurrence or existence of any of the following:
(i) (A)
a material breach by the Executive of the terms of this Agreement, (B) a material breach by the Executive of the Executive’s duty
not to engage in any transaction that represents, directly or indirectly, self-dealing with the Company, Holdings or any of their respective
affiliates (which, for purposes hereof, shall mean any individual, corporation, partnership, association, limited liability company, trust,
estate, or other entity or organization directly or indirectly controlling, controlled by, or under direct or indirect common control
with the Company and/or Holdings) which has not been approved by a majority of the disinterested directors of the Board, or (C) the Executive’s
violation of the Company’s and/or Holdings’ Code of Ethics, or any other written Company and/or Holdings policy that is communicated
to the Executive in a similar manner as such policy is communicated to other employees of the Company and/or Holdings, which is demonstrably
and materially injurious to the Company, Holdings or any of their respective affiliates, if any such material breach or violation described
in clauses (A), (B) or (C), to the extent curable, remains uncured after fifteen (15) days have elapsed following the date on which the
Company gives the Executive written notice of such material breach or violation;
(ii) the
Executive’s willful act of dishonesty, misappropriation, embezzlement, intentional fraud, or similar intentional misconduct by the
Executive involving the Company, Holdings or any of their respective affiliates;
(iii) the
Executive’s conviction or the plea of nolo contendere or the equivalent in respect of a felony;
(iv) any
damage of a material nature to any property of the Company, Holdings or any of their respective affiliates caused by the Executive’s
willful misconduct or gross negligence;
(v) the
Executive’s repeated nonprescription use of any controlled substance or the repeated use of alcohol or any other non-controlled
substance that, in the reasonable good faith opinion of the Board, renders the Executive unfit to serve as an officer of the Company,
Holdings or their respective affiliates;
(vi) the
Executive’s failure to comply with the Board’s reasonable written instructions consistent with her position on a material
matter within five (5) days; or
(vii) conduct
by the Executive that, in the reasonable good faith written determination of the Board, manifests the Executive’s lack of fitness
to serve as an officer of the Company, Holdings or their respective affiliates, including but not limited to a finding by the Board or
any judicial or regulatory authority that the Executive committed acts of unlawful harassment or violated any other state, federal or
local law or ordinance prohibiting discrimination in employment.
(b) Termination
of the Executive for Cause pursuant to Section 6(a) shall be communicated by a Notice of Termination for Cause. For purposes of this Agreement,
a “Notice of Termination for Cause” shall mean delivery to the Executive of a copy of a resolution or resolutions duly
adopted by the affirmative vote of not less than two-thirds of the directors (other than the Executive, if the Executive is then serving
on the Board) present (in person or by teleconference) and voting at a meeting of the Board called and held for that purpose after fifteen
(15) days’ notice to the Executive (which notice the Company shall use reasonable efforts to confirm that the Executive has actually
received and which notice for purposes of Section 6(a) may be delivered, in addition to the requirements set forth in Section 17, through
the use of electronic mail) and a reasonable opportunity for the Executive, together with the Executive’s counsel, to be heard before
the Board at such meeting prior to such vote, finding that in the good faith opinion of the Board, the Executive was found to have committed
the conduct set forth in any of clauses (i) through (vii) of Section 6(a) and specifying the particulars thereof in reasonable detail.
For purposes of Section 6(a), the Executive’s employment and the Term shall terminate on the date specified by the Board in the
Notice of Termination for Cause and one (1) day following the receipt by the Executive of a notice of a termination without Cause.
(c) (i)
This Agreement and the Executive’s employment shall terminate upon the death of the Executive.
(ii) If
the Executive is unable to perform the essential duties and functions of her employment because of a disability, even with a reasonable
accommodation, for one hundred eighty (180) days within any three hundred sixty-five (365)-day period (“Disability”),
the Company shall have the right and may elect to terminate the services of the Executive by a Notice of Disability Termination. The Executive
shall not be terminated following a Disability except pursuant to this Section 6(c)(ii). For purposes of this Agreement, a “Notice
of Disability Termination” shall mean a written notice that sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive’s employment under this Section 6(c)(ii). For purposes of this Agreement, no
such purported termination shall be effective without such Notice of Disability Termination. The Term of this Agreement and the
Executive’s employment shall terminate on the
day such Notice of Disability Termination is received by the Executive.
(d) The
Executive may elect to resign from employment with the Company and Holdings at any time with or without Good Reason (as defined below).
Should the Executive wish to resign from employment with the Company and Holdings during the Term for other than Good Reason, the Executive
shall give at least fourteen (14) days’ prior written notice to the Company. The Executive’s employment and the Term of this
Agreement shall terminate on the effective date of the resignation set forth in the notice of resignation; provided that the Company
may, at its sole discretion, instruct the Executive to perform no more job responsibilities and cease active employment immediately upon
or following receipt of such notice from the Executive. Further, any resignation by the Executive of employment with the Company shall
be deemed a resignation of employment with Holdings (and vice versa).
(e) Should
the Executive wish to resign from employment with the Company and Holdings during the Term for Good Reason following the Company’s
failure to cure an applicable event as contemplated below, the Executive shall give at least seven (7) days’ prior written notice
to the Company. The Executive’s employment and the Term of this Agreement shall terminate on the date specified in such notice given
in accordance with the relevant provision; provided that the Company may, at its sole discretion, instruct the Executive to cease
active employment and perform no more job duties immediately upon or following receipt of such notice from the Executive. Further, any
resignation by the Executive of employment with the Company shall be deemed a resignation of employment with Holdings (and vice versa).
For purposes of this Agreement, “Good Reason”
shall mean the continuance of any of the following events (without the Executive’s prior written consent) for a period of thirty
(30) days after delivery to the Company by the Executive of a written notice within ninety (90) days of the Executive becoming aware of
the initial occurrence of such event, during which thirty (30)-day period of continuation the Company and Holdings shall be afforded an
opportunity to cure such event (and provided that the Executive’s effective date of resignation for Good Reason is within
one hundred thirty-five (135) days of the Good Reason event):
(i) any
diminution of the Executive’s title or any material diminution in the Executive’s duties and/or responsibilities or authority,
as set forth herein; or
(ii) the
Executive ceasing to report solely and exclusively to the full Board (unless otherwise required by Section 2(c) or provided by Section
6(i)); or
(iii) any
requirement that the Executive report for work to a location (other than the Executive’s residence or other remote work location)
more than twenty-five (25) miles from the Company’s current offices in New York, New York, for more than thirty (30) days in any
calendar year, excluding any requirement that results from the damage, emergency closure or destruction of such offices as a result of
natural disasters, terrorism, pandemics, acts of war or acts of God or travel in the ordinary course of business; or
(iv) any
reduction in the applicable Base Salary or target Bonus opportunity; or
(v) the
Company’s failure to grant the equity awards set forth in Section 4(b) by March 1, 2024, other than as a result of Holdings and
the Executive being subject to a blackout restriction which prevents the issuance of such equity awards and provided such equity awards
are granted on the second business day following the date that Holdings and the Executive are no longer subject to such blackout restriction;
or
(vi) any material breach by the
Company of this Agreement.
(f) (i)
If the employment of the Executive is terminated by the Company for Cause, by the Executive other than for Good Reason or due to death
or Disability, the Executive shall, in lieu of any future payments or benefits under this Agreement, be entitled to (A) any earned but
unpaid Base Salary and any business expenses incurred but not reimbursed, in each case, prior to the Termination Date and (B) any other
vested benefits under any other benefit or incentive plans or programs (including any equity plans and applicable award agreements) in
accordance with the terms of such plans and programs (collectively, the “Accrued Payments and Benefits”). In addition
to the Accrued Payments and Benefits, in the event the Executive’s employment is terminated due to the Executive’s death or
Disability, the Executive shall be paid (A) a pro-rated Bonus for the year in which the termination occurs (based on actual achievement
of applicable performance criteria and based on the number of days the Executive was employed by the Company as a portion of the applicable
calendar year), payable when annual bonuses are normally paid to other executive officers of the Company and (B) any earned but unpaid
annual bonus with respect to the year prior to the year of termination, payable when annual bonuses are normally paid to other executive
officers.
(ii) If, during the Term, the employment of the Executive is terminated by the Company without Cause or if the Executive terminates her employment for Good Reason, then, subject to Section 6(g), the Executive shall have an absolute and unconditional right to receive, and the Company shall pay to the Executive without setoff, counterclaim or other withholding, except as set forth in Section 4(c), the following:
(A) the Accrued Payments and Benefits;
(B) (x) a pro-rated Bonus for the year
in which the termination occurred (based on actual achievement of applicable performance criteria, and based on the number of days the
Executive was employed by the Company as a portion of the applicable calendar year), payable when annual bonuses are normally paid to
other executive officers of the Company and (y) any earned but unpaid annual bonus with respect to the year prior to the year of termination,
payable when annual bonuses are normally paid to other executive officers;
(C) a lump sum amount equal to one and
a half (1 ½) times the sum of (x) the Executive’s annualized Base Salary then in effect and (y) an amount in cash equal to
the greater of (I) the Executive’s target Bonus opportunity for the year in
which the Termination Date occurs or (II)
the Bonus last paid (or due and payable) to the Executive, with such lump sum amount to be paid on the sixtieth (60th) day following the
Termination Date;
(D) the continuation for eighteen (18)
months, at the Company’s expense (by direct payment, not reimbursement to the Executive), of substantially similar medical and dental
benefits in a manner that will not be taxable to the Executive;
(E) life insurance benefits on substantially
the same terms as provided by the Company for active employees for twelve (12) months following the Termination Date; provided that (I)
the Company’s cost for such life insurance shall not exceed twice the amount that the Company would have paid to provide such life
insurance benefit to the Executive if she were an active employee on the Termination Date, and (II) such life insurance coverage shall
cease if the Executive obtains a life insurance benefit from another employer during the remainder of such twelve (12)-month period; and
(F) if such termination occurs prior to
the grant of the equity awards set forth in Section 4(b), $33,000,000 in cash, to be paid in a lump sum on the sixtieth (60th)
day following the Termination Date.
(g) The
Company’s obligations under Section 6(f)(ii) shall be conditioned upon the Executive or the Executive’s representative executing,
delivering, and not revoking during the applicable revocation period a waiver and release of claims against the Company and Holdings,
substantially in the form attached as Exhibit E (the “Release”), within sixty (60) days following the Termination Date;
provided that the Company’s General Counsel may waive such requirement in the case of the Executive’s death.
(h) Upon
expiration of the Term on the Term End Date, except as otherwise set forth in this Section 6(h), the Executive shall not be entitled to
receive, and the Company shall have no obligation to pay, the payments/benefits set forth above in Section 6(f)(ii). Notwithstanding anything
in this Agreement or any other agreement (including any award agreement) to the contrary, if (i) no new employment agreement is mutually
agreed to by the Executive and the Company on or prior to December 15, 2026, and (ii) the Executive’s employment with the Company
terminates on the Term End Date or any date thereafter, other than by the Company for Cause, (x) the Executive shall remain eligible to
receive the Bonus for calendar year 2026 (without regard to any continued service condition) and (y) for stock options held by the Executive
that are vested as of the Termination Date, such stock options shall remain exercisable for the remaining period of their term. All option
award agreements executed by the Executive shall be deemed to have been amended by the prior sentence, and the Company acknowledges and
agrees to such amendment.
(i) Notwithstanding
anything contained in this Agreement, under no circumstances shall the Company or Holdings be considered to have breached this Agreement
or to have terminated the Executive’s employment with or without Cause, or shall a Good Reason event be deemed to have occurred,
solely as a result of or in connection with Holdings merging with and/or into, or otherwise effecting a business combination or other
transaction with, the
Company, Liberty Media Corporation, any Qualified
Distribution Transferee (as defined in the Investment Agreement, dated as of February 17, 2009, between Holdings and Liberty Radio LLC,
as amended) or any of their respective wholly-owned subsidiaries, or any entity wholly-owned jointly by any of the foregoing; provided,
that, if Holdings is not the publicly traded parent company of the combined enterprises, immediately following any such merger, business
combination or other transaction, the Executive (i) shall have retained substantially similar duties and responsibilities with respect
to the business and operations owned and/or operated prior to such transaction by Holdings and the Company (the “Legacy Business”)
(including remaining the Chief Executive Officer of the subsidiary owning and/or operating the Legacy Business), and (ii) shall report
solely and exclusively to the full board of directors of the new publicly traded parent company of the Legacy Business (the “New
Parent Company”) (unless otherwise required by Section 2(c)) or to the current Chief Executive Officer of Liberty Media Corporation
if he is the Chief Executive Officer of the New Parent Company, and (iii) except in the event that Liberty Media Corporation is New Parent
Company, shall serve on the board of directors of the New Parent Company; and provided further that no circumstances shall have
occurred at such time, which would separately constitute a breach of this Agreement, termination of the Executive’s employment (other
than for Cause) or a Good Reason event. Further, upon the consummation of any such merger, business combination or other transaction,
New Parent Company shall assume the rights and obligations of the Company under this Agreement. The assumption of the Executive’s
equity awards by any New Parent Company and any related adjustments to such awards effected pursuant to the terms of the applicable incentive
plan and equity award agreements shall not be a breach of this Agreement.
(j) Notwithstanding
any provisions of this Agreement to the contrary, if the Executive is a “specified employee” (within the meaning of Section
409A and determined pursuant to policies adopted by the Company and Holdings) at the time of her Separation from Service and if any portion
of the payments or benefits to be received by the Executive upon Separation from Service would be considered deferred compensation under
Section 409A (“Nonqualified Deferred Compensation”), amounts that would otherwise be payable pursuant to this Agreement
during the six (6)-month period immediately following the Executive’s Separation from Service that constitute Nonqualified Deferred
Compensation and benefits that would otherwise be provided pursuant to this Agreement during the six (6)-month period immediately following
the Executive’s Separation from Service that constitute Nonqualified Deferred Compensation will instead be paid or made available
on the earlier of (x) the first (1st) business day of the seventh (7th) month following the date of the Executive’s
Separation from Service and (y) the Executive’s death.
(k) Following
the termination of the Executive’s employment for any reason, the Executive shall resign, as may then be applicable, from the Board,
all fiduciary positions (including, without limitation, as trustee) and all other offices and positions the Executive holds with the Company,
Holdings or any of their respective affiliates; provided that if the Executive does not promptly tender her resignation, then the
Company will be empowered to remove the Executive from such offices and positions.
7. Nondisclosure
of Confidential Information. (a) The Executive acknowledges that in the course of her employment she will occupy a position of trust
and confidence. The Executive shall not, except in connection with the performance of her functions
in accordance with this Agreement, as required by
applicable law or as required in proceedings to enforce or defend her rights under this Agreement or any other written agreement between
the Executive and the Company and/or Holdings, disclose to others or use, directly or indirectly, any Confidential Information.
(b) “Confidential
Information” shall mean information about the Company’s and/or Holdings’ (and their respective affiliates’)
business and operations that is not disclosed by the Company and/or Holdings (or their respective affiliates) for financial reporting
purposes and that was learned by the Executive in the course of her employment by the Company and/or Holdings, including, without limitation,
any business plans, product plans, strategy, budget information, proprietary knowledge, patents, trade secrets, data, formulae, sketches,
notebooks, blueprints, information and client and customer lists and all papers and records (including but not limited to computer records)
of the documents containing such Confidential Information, other than information that is publicly disclosed by the Company and/or Holdings
(or their respective affiliates) in writing or otherwise becomes publicly known other than as a result of the Executive’s breach
of this Section 7. The Executive acknowledges that such Confidential Information is specialized, unique in nature and of great value to
the Company and/or Holdings, and that such information gives the Company and/or Holdings a competitive advantage. The Executive agrees
to deliver or return to the Company, at the Company’s request at any time or upon termination or expiration of her employment or
as soon as possible thereafter, all documents, computer tapes and disks, records, lists, data, drawings, prints, notes and written information
(and all copies thereof) furnished by or on behalf of the Company and/or Holdings or prepared by the Executive in the course of her employment
by the Company and/or Holdings; provided that the Executive will be able to keep her cell phones, personal computers, personal
contact list and the like so long as any Confidential Information is removed from such items.
(c) Nothing
in this Agreement or the Release will preclude, prohibit or restrict the Executive from (i) communicating with any federal, state or local
administrative or regulatory agency or authority, including but not limited to the Securities and Exchange Commission (the “SEC”);
(ii) participating or cooperating in any investigation conducted by any governmental agency or authority; or (iii) filing a charge of
discrimination with the United States Equal Employment Opportunity Commission or any other federal state or local administrative agency
or regulatory authority. Nothing in this Agreement, or any other agreement between the parties (including the Release), prohibits or is
intended in any manner to prohibit, the Executive from (A) reporting a possible violation of federal or other applicable law or regulation
to any governmental agency or entity, including but not limited to the Department of Justice, the SEC, the U.S. Congress, and any governmental
agency Inspector General, or (B) making other disclosures that are protected under whistleblower provisions of federal law or regulation.
This Agreement and the Release do not limit the Executive’s right to receive an award (including, without limitation, a monetary
reward) for information provided to the SEC. The Executive does not need the prior authorization of anyone at the Company to make any
such reports or disclosures, and the Executive is not required to notify the Company that the Executive has made such reports or disclosures.
Nothing in this Agreement or any other agreement or policy of the Company (including the Release) is intended to interfere with or restrain
the immunity provided under 18 U.S.C. §1833(b). The Executive cannot be held criminally or civilly liable under any federal or state
trade secret law for the disclosure of a trade secret that is made (I) (x) in confidence to federal, state or local government officials,
directly or indirectly, or to an attorney,
and (y) for the purpose of reporting or investigating
a suspected violation of law; (II) in a complaint or other document filed in a lawsuit or other proceeding, if filed under seal; or (III)
in connection with a lawsuit alleging retaliation for reporting a suspected violation of law, if filed under seal and does not disclose
the trade secret, except pursuant to a court order. The provisions of this Section 7(c) are intended to comply with all applicable laws.
If any laws are adopted, amended or repealed after the execution of this Agreement, this Agreement shall be deemed to be amended to reflect
the same.
(d) The
provisions of this Section 7 shall survive indefinitely. The Executive’s obligations under this Section 7 and Section 8 following
the Executive’s termination of employment for Good Reason or by the Company without Cause are expressly conditioned upon, and subject
to, the Company’s compliance with any applicable payment obligations under Section 6.
8. Covenant
Not to Compete. During the Executive’s employment with the Company and during the Restricted Period (as defined below), the
Executive shall not, directly or indirectly, enter into the employment of, render services to, or acquire any interest whatsoever in (whether
for her own account as an individual proprietor, or as a partner, associate, stockholder, officer, director, consultant, trustee or otherwise),
or otherwise assist, any person or entity engaged in the distribution, transmission, production or streaming of radio programming or any
activity that directly competes with the business of the Company, including but not limited to podcasting, telematics and audio advertising
sales and technology (each, a “Competitive Activity”); provided that nothing in this Agreement shall prevent
the purchase or ownership by the Executive by way of investment of less than five (5) percent of the shares or equity interest of any
corporation or other entity. Without limiting the generality of the foregoing, the Executive agrees that during the Restricted Period,
the Executive shall not call on or otherwise solicit business or assist others to solicit business from any of the customers of the Company
or its affiliates as to any product or service that competes with any product or service provided or marketed by the Company or its affiliates
on the date of the Executive’s termination of employment with the Company during the Term (the “Milestone Date”);
provided, that general solicitations that are not specifically targeted to current, former or prospective customers of the Company
with respect to such products or services, and which products or services have not been identified by the Executive using Confidential
Information, shall not be deemed to be a breach of the immediately preceding sentence. The Executive agrees that during the Restricted
Period she will not solicit or assist others to solicit the employment of or hire any employee of Holdings, the Company, or their subsidiaries
or Liberty Media Corporation without the prior written consent of the Company. For purposes of this Agreement, the “Restricted
Period” shall mean a period of one (1) year following the Milestone Date. For purposes of this Agreement, the term “radio”
shall be defined broadly and shall include any and all forms and mediums of audio distribution now existing or hereafter developed, including
terrestrial radio, streaming audio services, podcasting and on-demand audio services.
9. Change
of Control Provisions. (a) Notwithstanding any other provisions in this Agreement, in the event that any payment or benefit received
or to be received by the Executive (including but not limited to any payment or benefit received in connection with a change of control
of the Company or Holdings or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or
any other plan, program,
arrangement or agreement) (all such payments and
benefits, together, the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section
4999 of the Code, or any successor provision thereto (the “Excise Tax”), then, after taking into account any reduction
in the Total Payments provided by reason of Section 280G of the Code in such other plan, program, arrangement or agreement, the Company
will reduce the Total Payments to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax (but in no
event to less than zero); provided that the Total Payments will only be reduced if (i) the net amount of such Total Payments, as
so reduced (and after subtracting the net amount of federal, state, municipal and local income and employment taxes on such reduced Total
Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total
Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net
amount of federal, state, municipal and local income and employment taxes on such Total Payments and the amount of Excise Tax to which
the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions
and personal exemptions attributable to such unreduced Total Payments).
(b) In the case of a reduction in the Total
Payments, the Total Payments will be reduced in the following order: (i) payments that are payable in cash that are valued at full value
under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last
reduced first; (ii) payments and benefits due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1,
Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A
24), will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section
1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect
of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first
(as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), will next be reduced; and (v) all other non-cash
benefits not otherwise described in clauses (ii) or (iv) will be next reduced pro-rata. Any reductions made pursuant to each of clauses
(i)-(v) above will be made in the following manner: first, a pro-rata reduction of cash payment and payments and benefits due in respect
of any equity not subject to Section 409A, and second, a pro-rata reduction of cash payments and payments and benefits due in respect
of any equity subject to Section 409A as deferred compensation.
(c) For purposes of determining whether and
the extent to which the Total Payments will be subject to the Excise Tax: (i) no portion of the Total Payments the receipt or enjoyment
of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning
of Section 280G(b) of the Code will be taken into account; (ii) no portion of the Total Payments will be taken into account which, in
the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm
which was, immediately prior to the change of control, the Company’s independent auditor (the “Auditor”), does
not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including, without limitation,
by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments will be taken into
account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of
Section 280G(b)(4)(B) of the
Code (including, without limitation, any portion of such Total Payments
equal to the value of the covenant included in Section 8, as determined by the Auditor or such other accounting, consulting or valuation
firm selected by the Company prior to the change of control and reasonably acceptable to the Executive), in excess of the “base
amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to such reasonable compensation; and (iii) the value
of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Auditor in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
(d) At
the time that payments are made under this Agreement, the Company will provide the Executive with a written statement setting forth the
manner in which such payments were calculated and the basis for such calculations, including but not limited to any opinions or other
advice the Company or Holdings received from Tax Counsel, the Auditor, or other advisors or consultants (and any such opinions or advice
which are in writing will be attached to the statement). If the Executive objects to the Company’s calculations, the Company will
pay to the Executive such portion of the Total Payments (up to 100% thereof) as the Executive determines is necessary to result in the
proper application of this Section 9. All determinations required by this Section 9 (or requested by either the Executive or the Company
in connection with this Section 9) will be at the expense of the Company. The fact that the Executive’s right to payments or benefits
may be reduced by reason of the limitations contained in this Section 9 will not of itself limit or otherwise affect any other rights
of the Executive under this Agreement.
(e) If
the Executive receives reduced payments and benefits by reason of this Section 9 and it is established pursuant to a determination of
a court which is not subject to review or as to which the time to appeal has expired, or pursuant to an Internal Revenue Service proceeding,
that the Executive could have received a greater amount without resulting in any Excise Tax, then the Company shall thereafter pay the
Executive the aggregate additional amount which could have been paid without resulting in any Excise Tax as soon as reasonably practicable.
10. Remedies.
The Executive and the Company agree that damages for breach of any of the covenants under Sections 7 and 8 will be difficult to determine
and inadequate to remedy the harm which may be caused thereby, and therefore consent that these covenants may be enforced by temporary
or permanent injunction without the necessity of bond. The Executive believes, as of the date of this Agreement, that the provisions of
this Agreement are reasonable and that the Executive is capable of gainful employment without breaching this Agreement. However, should
any court or arbitrator decline to enforce any provision of Section 7 or 8, this Agreement shall, to the extent applicable in the circumstances
before such court or arbitrator, be deemed to be modified to restrict the Executive’s competition with the Company to the maximum
extent of time, scope and geography which the court or arbitrator shall find enforceable, and such provisions shall be so enforced.
11. Indemnification.
The Company shall indemnify the Executive, both during and after the Term, to the full extent provided in the Company’s and Holdings’
respective Certificates of Incorporation and Bylaws and the law of the State of Delaware in connection with her activities as an officer
or director of the Company and Holdings, provided, that the
indemnification required by this Section 11 shall
not be construed to be the exclusive indemnification available to the Executive. In addition, the Executive shall be covered by the Company’s
directors’ and officers’ liability insurance policy in connection with her activities during the Term as an officer or director
of the Company and Holdings on a basis generally consistent with other directors and officers of the Company and Holdings.
12. Entire
Agreement. The provisions contained herein constitute the entire agreement between the parties with respect to the subject matter
hereof and supersede any and all prior agreements, understandings and communications between the parties, oral or written, with respect
to such subject matter, including but not limited to the Prior Agreement, but excluding any equity award agreements between the Executive
and the Company and/or Holdings and the aircraft letter agreement dated as of even date herewith. Nothing herein is intended to supersede
or waive obligations of the Executive to comply with any assignment of invention provisions applicable to the Executive under the Code
of Ethics or any assignment of invention agreement(s) between the Company and/or Holdings and the Executive, or to supersede or waive
the Executive’s right to unpaid Base Salary and benefits unconditionally accrued prior to the date hereof under the Prior Agreement.
13. Modification.
Any waiver, alteration, amendment or modification of any provisions of this Agreement shall not be valid unless in writing and signed
by both the Executive and the Company.
14. Severability.
If any provision of this Agreement shall be declared to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability
shall not affect the remaining provisions hereof, which shall remain in full force and effect.
15. Assignment.
The Executive may not assign any of her rights or delegate any of her duties hereunder without the prior written consent of the Company.
The Company may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the Executive,
except that any successor to the Company and/or Holdings by merger or purchase of all or substantially all of the Company’s and/or
Holdings’ assets shall assume this Agreement.
16. Binding
Effect. This Agreement shall be binding upon and inure to the benefit of the successors in interest of the Executive and the Company.
17. Notices.
All notices and other communications required or permitted hereunder shall be made in writing and shall be deemed effective when delivered
personally or transmitted by facsimile transmission if received at the recipient’s location during normal business hours or otherwise
on the next business day, one (1) business day after deposit with a nationally recognized overnight courier (with next day delivery specified)
and five (5) days after mailing by registered or certified mail:
if to the Company:
Sirius XM Radio Inc.
1221 Avenue of the Americas
35th Floor
New York, New York 10020
Attention: General Counsel
Telecopier: (212) 584-5353
if to the Executive:
Address on file at the offices
of the Company
or to such other person or address as either party shall furnish in
writing to the other party from time to time.
18. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within the State of New York.
19. Non-Mitigation.
The Executive shall not be required to mitigate damages or seek other employment in order to receive compensation or benefits under Section
6; nor shall the amount of any benefit or payment provided for under Section 6 be reduced by any compensation earned by the Executive
as the result of employment by another employer.
20. Arbitration.
(a) The Executive and the Company agree that if a dispute arises concerning or relating to the Executive’s employment with the Company
and/or Holdings, or the termination of the Executive’s employment, such dispute shall be submitted to binding arbitration under
the rules of the American Arbitration Association regarding resolution of employment disputes in effect at the time such dispute arises.
The arbitration shall take place in New York, New York, before a single experienced arbitrator licensed to practice law in New York and
selected in accordance with the American Arbitration Association rules and procedures. Except as provided below, the Executive and the
Company agree that this arbitration procedure will be the exclusive means of redress for any disputes relating to or arising from the
Executive’s employment with the Company and/or Holdings or her termination, including but not limited to disputes over rights provided
by federal, state, or local statutes, regulations, ordinances, and common law, including all laws that prohibit discrimination based on
any protected classification. The parties expressly waive the right to a jury trial, and agree that the arbitrator’s award shall
be final and binding on both parties, and shall not be appealable. The arbitrator shall have the discretion to award monetary and
other damages, and any other relief that the arbitrator deems appropriate and is allowed by law. The arbitrator shall also have the discretion
to award the prevailing party reasonable costs and attorneys’ fees incurred in bringing or defending an action, and shall award
such costs and fees to the Executive in the event the Executive prevails on the merits of any action brought hereunder.
(b) The
Company shall pay the cost of any arbitration proceedings under this Agreement if the Executive prevails in such arbitration on at least
one substantive issue.
(c) The
Company and the Executive agree that the sole dispute that is excepted from Section 20(a) is an action seeking injunctive relief from
a court of competent
jurisdiction regarding enforcement and application
of Sections 7, 8 or 10, which action may be brought in addition to, or in place of, an arbitration proceeding in accordance with Section
20(a).
21. Compliance
with Section 409A. (a) To the extent applicable, it is intended that the compensation arrangements under this Agreement be in full
compliance with Section 409A (it being understood that certain compensation arrangements under this Agreement are intended not to be subject
to Section 409A). This Agreement shall be construed, to the maximum extent permitted, in a manner to give effect to such intention. Notwithstanding
anything in this Agreement to the contrary, distributions upon termination of the Executive’s employment that constitute Nonqualified
Deferred Compensation may only be made upon a Separation from Service. Neither the Company nor any of its affiliates shall have any obligation
to indemnify or otherwise hold the Executive harmless from any or all such taxes, interest or penalties, or liability for any damages
related thereto. The Executive acknowledges that she has been advised to obtain independent legal, tax or other counsel in connection
with Section 409A.
(b) With
respect to any amount of expenses eligible for reimbursement under this Agreement, such expenses will be reimbursed by the Company within
thirty (30) days following the date on which the Company receives the applicable invoice from the Executive in accordance with the Company’s
expense reimbursement policies, but in no event later than the last day of the Executive’s taxable year following the taxable year
in which the Executive incurs the related expenses. In no event will the reimbursements or in-kind benefits to be provided by the Company
in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor will the Executive’s
right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit.
(c) Each
payment under this Agreement shall be regarded as a “separate payment” and not one of a series of payments for purposes of
Section 409A.
22. Counterparts.
This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the parties and delivered to the other party.
23. Executive’s
Representation. The Executive hereby represents and warrants to the Company that she is not now under any contractual or other obligation
that is inconsistent with or in conflict with this Agreement or that would prevent, limit, or impair the Executive’s performance
of her obligations under this Agreement.
24. Survivorship.
Upon the expiration or other termination of the Term of this Agreement or the Executive’s employment with the Company, the respective
rights and obligations of the parties hereto shall survive to the extent necessary to carry out the intentions of the parties under this
Agreement, including, for the avoidance of doubt, Section 6(h).
25. Clawback
Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any compensation paid to the Executive pursuant
to this Agreement or any other agreement or arrangement with the Company, Holdings or any of their respective affiliates, which is subject
to recovery under any law, government regulation or stock exchange listing requirement, whether in effect prior to, as of, or at any time
following, the date of this
Agreement, will be subject to such deductions and
clawback in accordance with the policy adopted by Holdings and as may be required to be made pursuant to such law, government regulation
or stock exchange listing requirement.
26. Attorneys’
Fees. The Company shall promptly reimburse the Executive for the reasonable professional fees and expenses incurred by the Executive
in the negotiation and preparation of this Agreement and related agreements; provided that the amount required to be reimbursed
by the Company shall in no event exceed $45,000.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
|
By: |
/s/ Patrick L. Donnelly |
|
|
Patrick L. Donnelly |
|
|
Executive Vice President, General Counsel and Secretary |
|
|
|
|
|
/s/ Jennifer C. Witz |
|
|
JENNIFER C. WITZ |
Exhibit A
SIRIUS XM HOLDINGS INC. 2015 LONG-TERM STOCK
INCENTIVE PLAN
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (this “Agreement”),
dated [______] __, ____,1 is between SIRIUS XM HOLDINGS INC., a Delaware corporation (the “Company”),
and JENNIFER C. WITZ (the “Executive”).
1. Grant of Option; Vesting. (a) Subject
to the terms and conditions of this Agreement, the Sirius XM Holdings Inc. 2015 Long-Term Stock Incentive Plan (the “Plan”),
and the Employment Agreement, dated as of December 14, 2023, between Sirius XM Radio Inc. (“Sirius XM”) and
the Executive (the “Employment Agreement”), the Company hereby grants to the Executive the right and option
(this “Option”) to purchase ______________________ (_________) shares2 of common stock, par value
$0.001 per share, of the Company (the “Shares”), at a price per Share of $[___] (the “Exercise Price”).3
This Option is not intended to qualify as an Incentive Stock Option for purposes of Section 422 of the Internal Revenue
Code of 1986, as amended. In the case of any stock split, stock dividend or like change in the Shares occurring after the date
hereof, the number of Shares and the Exercise Price shall be adjusted as set forth in Section 4(b) of the Plan.
(b) Subject to the terms of this Agreement,
this Option shall vest and become exercisable as follows: this Option shall vest and become exercisable with respect to [__] Shares
on December 31, 2024, [___] Shares on December 31, 2025, and [____] Shares on December 31, 20264, subject to the Executive’s
continued employment with Sirius XM on each of these dates, other than as specifically stated herein.
(c) If the Executive’s employment with
Sirius XM terminates for any reason, this Option, to the extent not then vested, shall immediately terminate without consideration;
provided that if the Executive’s employment with Sirius XM is terminated (x) due to death or “Disability”
(as defined in the Employment Agreement), (y) by Sirius XM without “Cause” (as defined in the Employment Agreement),
or (z) by the Executive for “Good Reason” (as defined in the Employment Agreement), then the unvested portion
of this Option, to the extent not previously cancelled or forfeited, shall immediately become vested and exercisable. In order
for the Executive to receive any accelerated vesting pursuant to this Section 1(c), the Executive must execute a release in accordance
with Section 6(g) of the Employment Agreement (except that the Company’s General Counsel may waive such requirement in the
case of the Executive’s death).
1 The “Grant Date,” as defined in the Employment Agreement.
2 Number to be computed in accordance with Section 4(b)(i) of the Employment Agreement.
3 Closing price on the Grant Date.
4 Vesting 1/3rd on each applicable vesting date.
2. Term. This Option shall terminate
on [______] __, 20__ (the “Option Expiration Date”);5 provided that if:
(a) except as provided in Section
2(d) of this Agreement, the Executive’s employment with Sirius XM is terminated due to the Executive’s death or Disability,
by Sirius XM without Cause, or by the Executive for Good Reason, the Executive may exercise this Option in full until the first
(1st) anniversary of such termination (at which time this Option shall be cancelled), but not later than the Option
Expiration Date;
(b) the Executive’s employment
with Sirius XM is terminated for Cause, this Option shall be cancelled upon the date of such termination;
(c) except as provided in Section
2(d) of this Agreement, the Executive voluntarily terminates her employment with Sirius XM without Good Reason, the Executive may
exercise any vested portion of this Option until ninety (90) days following the date of such termination (at which time this Option
shall be cancelled), but not later than the Option Expiration Date; and
(d) the Executive’s employment
with Sirius XM terminates on or following the Term End Date (as defined in the Employment Agreement), other than by Sirius XM for
Cause, the Executive may exercise this Option in full until the Option Expiration Date.
3. Exercise. Subject to Sections 1
and 2 of this Agreement and the terms of the Plan, this Option may be exercised, in whole or in part, in accordance with Section
6 of the Plan.
4. Change of Control. Notwithstanding
the foregoing provisions, in the event of a Change of Control, this Option shall be governed by the terms of the Plan; provided
that any transactions between the Company, Sirius XM and/or any of their respective wholly-owned subsidiaries, on the one hand,
and Liberty Media Corporation, any Qualified Distribution Transferee (as defined in the Investment Agreement, dated as of February
17, 2009, between the Company and Liberty Radio LLC, as amended) and/or any of their respective wholly-owned subsidiaries, on the
other hand, shall not constitute a Change of Control under the Plan.
5. Non-transferable. This Option may
not be transferred, assigned, pledged or hypothecated in any manner (whether by operation of law or otherwise) other than by will
or by the applicable laws of descent and distribution, and shall not be subject to execution, attachment or similar process. Any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this Option or of any right or privilege conferred hereby
shall be null and void. In the event of the Executive’s death, any amounts owed to the Executive hereunder shall instead
be paid to the Executive’s designated beneficiary (or, if none, to the Executive’s estate).
6. Withholding. Prior to delivery of
the Shares purchased upon exercise of this Option, the Company shall determine the amount of any United States federal, state and
local income taxes, if any, which are required to be withheld under applicable law and shall, as a
5 Tenth anniversary of the Grant Date.
condition of exercise of this
Option and delivery of the Shares purchased upon exercise of this Option, collect from the Executive the amount of any such tax
to the extent not previously withheld. The Executive may satisfy her withholding obligations in the manner contemplated by Section
16(e) of the Plan.
7. Rights of the Executive. Neither
this Option, the execution of this Agreement nor the exercise of any portion of this Option shall confer upon the Executive any
right to, or guarantee of, continued employment by Sirius XM or any of its subsidiaries or affiliates, or in any way limit the
right of Sirius XM or any of its subsidiaries or affiliates to terminate employment of the Executive at any time, subject to the
terms of the Employment Agreement or any other written employment or similar written agreement between or among the Company, Sirius
XM, or any of their respective subsidiaries or affiliates, and the Executive.
8. Professional Advice. The acceptance
and exercise of this Option may have consequences under federal and state tax and securities laws that may vary depending upon
the individual circumstances of the Executive. Accordingly, the Executive acknowledges that the Executive has been advised to consult
her personal legal and tax advisors in connection with this Agreement and this Option.
9. Agreement Subject to the Plan. This
Option and this Agreement are subject to the terms and conditions set forth in the Plan, which terms and conditions are incorporated
herein by reference. Capitalized terms used herein but not otherwise defined shall have the same meanings as in the Plan. The Executive
acknowledges that a copy of the Plan is posted on Sirius XM’s intranet site and the Executive agrees to review it and comply
with its terms. This Agreement, the Employment Agreement and the Plan constitute the entire understanding between or among the
Company, Sirius XM and the Executive with respect to this Option. In the event of any conflict between this Agreement and the Plan,
the Plan shall govern and prevail.
10. Governing Law. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of New York, and shall bind and inure to the benefit of
the heirs, executors, personal representatives, successors and assigns of the parties hereto. Any disputes arising from or relating
to this Agreement shall be subject to arbitration pursuant to Section 20 of the Employment Agreement.
11. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed given when delivered personally or when telecopied (with confirmation
of transmission received by the sender), three (3) business days after being sent by certified mail, postage prepaid, return receipt
requested or one (1) business day after being delivered to a nationally recognized overnight courier with next day delivery specified
to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): Company:
Sirius XM Holdings Inc., 1221 Avenue of the Americas, 35th Floor, New York, New York 10020, Attention: General Counsel; and Executive:
Address on file at the office of Sirius XM. Notices sent by email or other electronic means not specifically authorized by this
Agreement shall not be effective for any purpose of this Agreement.
12. Binding Effect. This Agreement
has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
13. Amendment. The rights of the Executive
hereunder may not be impaired by any amendment, alteration, suspension, discontinuance or termination of the Plan or this Agreement
without the Executive’s consent.
14. No Rights of a Stockholder. The
Executive shall not have any rights as a stockholder of the Company with respect to any Shares until the Shares purchased upon
exercise of this Option have been issued.
15. Clawback Provisions. Notwithstanding
any other provisions in this Agreement to the contrary, any compensation realized by the Executive pursuant to this Agreement or
any other agreement or arrangement with the Company, Sirius XM or any of their respective affiliates, which is subject to recovery
under any law, government regulation or stock exchange listing requirement, whether in effect prior to, as of, or at any time following,
the date of the Employment Agreement, shall be subject to such deductions and clawback in accordance with the policy adopted by
the Company and as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement.
IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first above written.
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SIRIUS XM HOLDINGS INC. |
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By: |
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Faye Tylee |
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Chief People + Culture Officer |
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JENNIFER C. WITZ |
Exhibit B
SIRIUS XM HOLDINGS INC.
2015 LONG-TERM STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
This RESTRICTED STOCK UNIT AGREEMENT (this
“Agreement”), dated [_____], _____ (the “Grant Date”)6, is between SIRIUS XM HOLDINGS
INC., a Delaware corporation (the “Company”), and JENNIFER C. WITZ (the “Executive”).
1. Grant
of RSUs. Subject to the terms and conditions of this Agreement, the Sirius XM Holdings Inc. 2015 Long-Term Stock Incentive
Plan (the “Plan”), and the Employment Agreement, dated as of December 14, 2023 between Sirius XM Radio Inc.
(“Sirius XM”) and the Executive (the “Employment Agreement”), the Company hereby grants [___________]7
restricted stock units (“RSUs”) to the Executive. Each RSU represents the unfunded, unsecured right of the Executive
to receive one share of common stock, par value $0.001 per share, of the Company (each, a “Share”) on the dates
specified in this Agreement.
2. Dividends.
If on any date while RSUs are outstanding the Company shall pay any dividend on the Shares (other than a dividend payable in Shares),
the number of RSUs granted to the Executive shall, as of the record date for such dividend payment, be increased by a number of
RSUs equal to: (a) the product of (x) the number of RSUs held by the Executive as of such record date, multiplied by (y) the per
Share amount of any cash dividend (or, in the case of any dividend payable, in whole or in part, other than in cash, the per Share
value of such dividend, as determined in good faith by the Company), divided by (b) the average closing price of a Share on the
Nasdaq Global Select Market for the twenty (20) trading days preceding, but not including, such record date. In the case of any
dividend declared on Shares that is payable in the form of Shares, the number of RSUs granted to the Executive shall be increased
by a number equal to the product of (1) the aggregate number of RSUs held by the Executive on the record date for such dividend,
multiplied by (2) the number of Shares (including any fraction thereof) payable as a dividend on a Share. In the case of any other
change in the Shares occurring after the date hereof, the number of RSUs shall be adjusted as set forth in Section 4(b) of the
Plan.
3. Issuance
of Shares subject to RSUs. (a) Subject to earlier issuance pursuant to the terms of this Agreement or the Plan, (i) on December
31, 2024, the Company shall issue, or cause there to be transferred, to the Executive [____] Shares representing an equal number
of RSUs granted to the Executive under this Agreement (as adjusted pursuant to Section 2, if applicable), (ii) on December 31,
2025, the Company shall issue, or cause there to be transferred, to the Executive [_____] Shares, representing an equal number
of RSUs granted to the Executive under this Agreement (as adjusted pursuant to Section 2, if applicable), and (iii) on December
31, 20268, the Company shall issue, or cause there to be transferred, to the Executive [_____] Shares, representing
an equal number of RSUs granted to the Executive under this Agreement
6 Grant Date as defined in the Employment Agreement.
7 To be calculated in accordance with Section 4(b)(ii)
of the Employment Agreement.
8 Vesting 1/3rd on each applicable vesting
date.
(as adjusted pursuant to Section 2, if applicable), in each
case, if the Executive continues to be employed with Sirius XM on each of these dates, other than as specifically stated herein.
(b) If
the Executive’s employment with Sirius XM terminates for any reason, the RSUs shall immediately terminate without consideration;
provided that if the Executive’s employment with Sirius XM is terminated (x) due to death or “Disability”
(as defined in the Employment Agreement), (y) by Sirius XM without “Cause” (as defined in the Employment Agreement),
or (z) by the Executive for “Good Reason” (as defined in the Employment Agreement), the RSUs, to the extent not previously
settled, cancelled or forfeited, shall immediately become vested and the Company shall issue, or cause there to be transferred,
to the Executive the amount of Shares equal to the number of RSUs granted to the Executive under this Agreement (to the extent
not previously transferred, cancelled or forfeited), as adjusted pursuant to Section 2, if applicable. In order for the Executive
to receive any accelerated vesting pursuant to this Section 3(b), the Executive must execute a release in accordance with Section
6(g) of the Employment Agreement (except that the Company’s General Counsel may waive such requirement in the case of the
Executive’s death).
4. Change
of Control. Notwithstanding the foregoing provisions, in the event of a Change of Control, the RSUs shall be governed by the
terms of the Plan; provided that any transactions between the Company, Sirius XM and/or any of their respective wholly-owned subsidiaries,
on the one hand, and Liberty Media Corporation, any Qualified Distribution Transferee (as defined in the Investment Agreement,
dated as of February 17, 2009, between the Company and Liberty Radio LLC, as amended) and/or any of their respective wholly-owned
subsidiaries, on the other hand, shall not constitute a Change of Control under the Plan.
5. Non-transferable.
The RSUs may not be transferred, assigned, pledged or hypothecated in any manner (whether by operation of law or otherwise) other
than by will or by the applicable laws of descent and distribution, and shall not be subject to execution, attachment or similar
process. Any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of RSUs or of any right or privilege conferred
hereby shall be null and void. In the event of the Executive’s death, any amounts owed to the Executive hereunder shall instead
be paid to the Executive’s designated beneficiary (or, if none, to the Executive’s estate).
6. Withholding.
Prior to delivery of the Shares pursuant to this Agreement, the Company shall determine the amount of any United States federal,
state and local income taxes, if any, which are required to be withheld under applicable law and shall, as a condition of delivery
of the Shares pursuant to this Agreement, collect from the Executive the amount of any such tax to the extent not previously withheld
in any manner permitted by the Plan.
7. No
Rights of a Stockholder. The Executive shall not have any rights as a stockholder of the Company with respect to any Shares
until the Shares have been issued. Once a RSU vests and a Share is issued to the Executive pursuant to Section 3, such RSU is no
longer considered a RSU for purposes of this Agreement.
8. Rights
of the Executive. Neither this Agreement nor the RSUs shall confer upon the Executive any right to, or guarantee of, continued
employment with Sirius XM or any of its subsidiaries or affiliates, or in any way limit the right of Sirius XM or any of its subsidiaries
or
affiliates to terminate the Executive’s employment at
any time, subject to the terms of the Employment Agreement.
9. Professional
Advice. The acceptance of the RSUs may have consequences under federal and state tax and securities laws that may vary depending
upon the individual circumstances of the Executive. Accordingly, the Executive acknowledges that the Executive has been advised
to consult the Executive’s personal legal and tax advisors in connection with this Agreement and the RSUs.
10. Agreement
Subject to the Plan. This Agreement and the RSUs are subject to the terms and conditions set forth in the Plan, which terms
and conditions are incorporated herein by reference. Capitalized terms used herein but not otherwise defined shall have the same
meanings as in the Plan. The Executive acknowledges that a copy of the Plan is posted on Sirius XM’s intranet site and the
Executive agrees to review it and comply with its terms. This Agreement, the Employment Agreement and the Plan constitute the entire
understanding between or among the Company, Sirius XM and the Executive with respect to the RSUs.
11. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, and shall bind
and inure to the benefit of the heirs, executors, personal representatives, successors and assigns of the parties hereto. Any disputes
arising from or relating to this Agreement shall be subject to arbitration pursuant to Section 20 of the Employment Agreement.
12. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or when
telecopied (with confirmation of transmission received by the sender), three (3) business days after being sent by certified mail,
postage prepaid, return receipt requested or one (1) business day after being delivered to a nationally recognized overnight courier
with next day delivery specified to the parties at the following addresses (or at such other address for a party as shall be specified
by like notice):
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Company: |
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Sirius XM Holdings Inc. |
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1221 Avenue of the Americas
35th Floor
New York, New York 10020
Attention: General Counsel |
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Executive: |
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Address on file at the
office of Sirius XM |
Notices sent by email or other electronic means not specifically
authorized by this Agreement shall not be effective for any purpose of this Agreement.
13. Binding
Effect. This Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
14. Amendment.
The rights of the Executive hereunder may not be impaired by any amendment, alteration, suspension, discontinuance or termination
of the Plan or this Agreement without the Executive’s consent.
15. Clawback
Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any compensation realized by the Executive
pursuant to this Agreement or any other agreement or arrangement with the Company, Sirius XM or any of their respective affiliates,
which is subject to recovery under any law, government regulation or stock exchange listing requirement, whether in effect prior
to, as of, or at any time following, the date of the Employment Agreement, shall be subject to such deductions and clawback in
accordance with the policy adopted by the Company and as may be required to be made pursuant to such law, government regulation
or stock exchange listing requirement.
16. Section
409A. This Agreement and the RSUs granted hereunder are intended to be exempt from Section 409A of the Code and the rules and
regulations thereunder such as to avoid any additional taxation under the Section 409A of the Code. Any ambiguity herein shall
be interpreted in accordance with the foregoing.
IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date first above written.
SIRIUS XM HOLDINGS INC.
By: |
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Faye Tylee |
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JENNIFER C. WITZ |
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Chief People + Culture Officer |
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Exhibit C
SIRIUS XM HOLDINGS INC.
2015 LONG-TERM STOCK INCENTIVE PLAN
PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT
(FREE CASH FLOW)
This PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT
(this “Agreement”), dated _________, _____9, is between SIRIUS XM HOLDINGS INC., a Delaware corporation
(the “Company”), and JENNIFER C. WITZ (the “Executive”).
1. Grant of PRSUs. Subject to the terms
and conditions of this Agreement, the Sirius XM Holdings Inc. 2015 Long-Term Stock Incentive Plan (the “Plan”), and
the Employment Agreement dated as of December 14, 2023 between Sirius XM Radio Inc. (“Sirius XM”) and the Executive
(the “Employment Agreement”), the Company hereby grants _______10 performance-based restricted stock units
(“PRSUs”) to the Executive. Each PRSU represents the unfunded, unsecured right of the Executive to receive one share
of common stock, par value $0.001 per share, of the Company (each, a “Share”) on the date specified in this Agreement.
2. Dividends. If on any date while PRSUs
are outstanding the Company shall pay any dividend on the Shares (other than a dividend payable in Shares), the number of PRSUs granted
to the Executive shall, as of the record date for such dividend payment, be increased by a number of PRSUs equal to: (a) the product of
(x) the number of PRSUs held by the Executive as of such record date, multiplied by (y) the per Share amount of any cash dividend (or,
in the case of any dividend payable, in whole or in part, other than in cash, the per Share value of such dividend, as determined in good
faith by the Company), divided by (b) the average closing price of a Share on the Nasdaq Global Select Market for the twenty (20) trading
days preceding, but not including, such record date. In the case of any dividend declared on Shares that is payable in the form of Shares,
the number of PRSUs granted to the Executive shall be increased by a number equal to the product of (1) the aggregate number of PRSUs
held by the Executive on the record date for such dividend, multiplied by (2) the number of Shares (including any fraction thereof) payable
as a dividend on a Share. In the case of any other change in the Shares occurring after the date hereof, the number of PRSUs shall be
adjusted as set forth in Section 4(b) of the Plan.
3. No Rights of a Stockholder. The Executive
shall not have any rights as a stockholder of the Company until the Shares have been issued. Once a PRSU vests and a Share is issued to
the Executive pursuant to Sections 4 and 5, such PRSU is no longer considered a PRSU for purposes of this Agreement.
9 The “Grant Date” as defined in the Employment
Agreement.
10 Number to be computed in accordance with Section 4(b)(iii)
of the Employment Agreement.
4. Issuance
of Shares Subject to PRSUs.
(a) Performance Metric. All or a portion
of the PRSUs shall be eligible to vest based on the Company’s level of achievement of cumulative free cash flow as set forth in
the budgets (the “Performance Metric Target”) approved by the Company’s Board of Directors (the “Board”)
for the years ending December 31, 2024 and December 31, 2025 (together, the “Performance Period”). The annual free
cash flow component for each of 2024 and 2025 of the Performance Metric Target shall be set at the time such applicable budget is approved
by the Board.
Free cash flow shall be derived from cash flow provided
by operating activities, net of additions to property and equipment, restricted and other investment activity and the return of capital
from investment in unconsolidated entities. The Compensation Committee of the Board shall adjust or modify the calculation of free cash
flow and/or the Performance Metric Target for the Performance Period in accordance with Sections 4(b) and 12(c) of the Plan, as applicable.
The Performance Metric Target for each of the years
ending December 31, 2024 and 2025 shall be reasonable in light of the Company’s business plan and budget for the applicable year
and other factors affecting the Company’s business taken as a whole.
(b) Calculation of Shares to be Issued. No
later than sixty (60) days following the end of the Performance Period, the Company shall certify the Company’s level of achievement
of the Performance Metric Target (such actual date of certification, the “Certification Date”) and determine the number
of PRSUs that shall remain eligible to vest, as set forth below, in accordance with the terms of the Plan and/or this Agreement (such
PRSUs, the “Eligible PRSUs”):
(i) If
the Company fails to achieve at least 80% of the Performance Metric Target, 0% of the PRSUs shall constitute Eligible PRSUs;
(ii) Upon
achieving 100% or more of the Performance Metric Target, 100% of the PRSUs shall constitute Eligible PRSUs; and
(iii) If
the Company’s achievement of the Performance Metric Target is at least 80% but less than 100% of the Performance Metric Target,
the number of PRSUs that become Eligible PRSUs shall be determined by straight line interpolation between the thresholds set forth in
subsections (i) and (ii) of this Section 4(b).
The payout scale set forth above may be modified
in order to increase (but not decrease) the percentage of PRSUs that vest hereunder. Any PRSUs that do not constitute Eligible PRSUs as
of the Certification Date shall be cancelled on the Certification Date. Except as otherwise provided in Section 5, in order to receive
the Eligible PRSUs, the Executive must be employed by Sirius XM on December 31, 2026.
(c) Issuance
of Eligible PRSUs. Subject to earlier issuance pursuant to the terms of this Agreement or the Plan, on December 31, 2026, the Company
shall issue, or cause there to be transferred, to the Executive an amount of Shares representing the Eligible PRSUs (as adjusted
pursuant to Section 2 above, if applicable); provided
that the Executive continues to be employed by Sirius XM on December 31, 2026.
5. Termination
of Employment. (a) If the Executive’s employment with Sirius XM terminates for any reason prior to December 31, 2026, then all
of the PRSUs, including the Eligible PRSUs, shall immediately terminate without consideration; provided that if the Executive’s
employment with Sirius XM is terminated (x) due to death or “Disability” (as defined in the Employment Agreement),
(y) by Sirius XM without “Cause” (as defined in the Employment Agreement), or (z) by the Executive for “Good
Reason” (as defined in the Employment Agreement) (any such applicable date of termination, the “PRSU Termination Date”),
then the PRSUs shall be treated in the following manner:
(i) if the PRSU Termination Date occurs
on or prior to the end of the Performance Period, or if the PRSU Termination Date occurs prior to the establishment of the Performance
Metric Target for the Performance Period, then the PRSUs granted to the Executive under this Agreement, to the extent not previously settled,
cancelled or forfeited, shall, subject to Section 5(b), immediately become vested and the Company shall issue, or cause there to be transferred,
to the Executive the amount of Shares equal to the number of PRSUs granted to the Executive under this Agreement, notwithstanding Section
4(b), and as adjusted pursuant to Section 2, if applicable; and
(ii) if the PRSU Termination Date occurs
after the last day of the Performance Period, all Eligible PRSUs, to the extent not previously settled, cancelled or forfeited, shall,
subject to Section 5(b), immediately (or, if later, on the Certification Date) become vested and the Company shall issue, or cause there
to be transferred, to the Executive the amount of Shares equal to the number of Eligible PRSUs earned pursuant to Section 4(b), as adjusted
pursuant to Section 2, if applicable.
(b) In
the event the Executive’s employment with Sirius XM terminates due to death or Disability, by Sirius XM without Cause or by the
Executive for Good Reason, the condition in Section 4(c) that the Executive be an employee of Sirius XM shall be waived in order to give
effect to Section 5(a); provided that the Executive executes a release in accordance with Section 6(g) of the Employment Agreement
(except that the Company’s General Counsel may waive such requirement in the case of the Executive’s death).
(c) The
Company shall issue, or cause there to be transferred, to the Executive an amount of Shares representing the Eligible PRSUs (as adjusted
pursuant to Section 2, if applicable) as provided in Section 5(a)(i) or (ii), as applicable, on the 60th day following the
Executive’s termination of employment, but in no event later than March 15th of the year following the year of such termination
of employment.
6. Change
of Control. Notwithstanding the foregoing provisions, in the event of a Change of Control, the PRSUs shall be governed by the terms
of the Plan; provided that any transactions between the Company, Sirius XM and/or any of their respective wholly-owned subsidiaries,
on the one hand, and Liberty Media Corporation, any Qualified Distribution Transferee (as defined in the Investment Agreement, dated as
of February 17, 2009, between the
Company and Liberty Radio LLC, as amended) and/or any of their respective
wholly-owned subsidiaries, on the other hand, shall not constitute a Change of Control under the Plan.
7. Non-transferable.
The PRSUs may not be transferred, assigned, pledged or hypothecated in any manner (whether by operation of law or otherwise) other than
by will or by the applicable laws of descent and distribution, and shall not be subject to execution, attachment or similar process. Any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of PRSUs or of any right or privilege conferred hereby shall be
null and void. In the event of the Executive’s death, any amounts owed to the Executive hereunder shall instead be paid to the Executive’s
designated beneficiary (or, if none, to the Executive’s estate).
8. Withholding.
Prior to delivery of the Shares pursuant to this Agreement, the Company shall determine the amount of any United States federal, state
and local income taxes, if any, which are required to be withheld under applicable law and shall, as a condition of delivery of the Shares
pursuant to this Agreement, collect from the Executive the amount of any such tax to the extent not previously withheld in any manner
permitted by the Plan.
9. Rights
of the Executive. Neither this Agreement nor the PRSUs shall confer upon the Executive any right to, or guarantee of, continued employment
by Sirius XM or any of its subsidiaries or affiliates, or in any way limit the right of Sirius XM or any of its subsidiaries or affiliates
to terminate the employment of the Executive at any time, subject to the terms of the Employment Agreement, or any other written employment
or similar written agreement between or among the Company, Sirius XM or any of their subsidiaries or affiliates, and the Executive.
10. Professional
Advice. The acceptance of the PRSUs may have consequences under federal and state tax and securities laws that may vary depending
upon the individual circumstances of the Executive. Accordingly, the Executive acknowledges that the Executive has been advised to consult
the Executive’s personal legal and tax advisors in connection with this Agreement and the PRSUs.
11. Agreement
Subject to the Plan. This Agreement and the PRSUs are subject to the terms and conditions set forth in the Plan, which terms and conditions
are incorporated herein by reference. Capitalized terms used herein but not otherwise defined shall have the same meanings as in the Plan.
The Executive acknowledges that a copy of the Plan is posted on Sirius XM’s intranet site and the Executive agrees to review it
and comply with its terms. This Agreement, the Employment Agreement and the Plan constitute the entire understanding between or among
the Company, Sirius XM and the Executive with respect to the PRSUs. In the event of any conflict between this Agreement and the Plan,
the Plan shall govern and prevail.
12. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, and shall bind and
inure to the benefit of the heirs, executors, personal representatives, successors and assigns of the parties hereto. Any disputes arising
from or relating to this Agreement shall be subject to arbitration pursuant to Section 20 of the Employment Agreement.
13. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or when telecopied
(with confirmation of transmission received by the sender), three (3) business days after being sent by certified mail, postage prepaid,
return receipt requested or one (1) business day after being delivered to a nationally recognized overnight courier with next day delivery
specified to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
|
Company: |
Sirius XM Holdings Inc. |
|
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1221 Avenue of the Americas |
|
|
35th Floor |
|
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New York, New York 10020 |
|
|
Attention: General Counsel |
|
|
|
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Executive: |
Address on file at the |
|
|
office of Sirius XM |
Notices sent by email or other electronic means not specifically authorized
by this Agreement shall not be effective for any purpose of this Agreement.
14. Binding
Effect. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms.
15. Amendment.
The rights of the Executive hereunder may not be impaired by any amendment, alteration, suspension, discontinuance or termination of the
Plan or this Agreement without the Executive’s consent.
16. Section
409A. This Agreement and the PRSUs granted hereunder are intended to be exempt from Section 409A of the Code and the rules and regulations
thereunder such as to avoid any additional taxation under the Section 409A of the Code. Any ambiguity herein shall be interpreted in accordance
with the foregoing.
17. Clawback
Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any compensation realized by the Executive pursuant
to this Agreement or any other agreement or arrangement with the Company, Sirius XM or any of their respective affiliates, which is subject
to recovery under any law, government regulation or stock exchange listing requirement, whether in effect prior to, as of, or at any time
following, the date of the Employment Agreement, shall be subject to such deductions and clawback in accordance with the policy adopted
by the Company and as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement.
IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first above written.
SIRIUS XM HOLDINGS INC.
By: |
|
|
|
|
|
Faye Tylee |
|
JENNIFER C. WITZ |
|
|
Chief People + Culture Officer |
|
|
|
Exhibit D
SIRIUS XM HOLDINGS INC.
2015 LONG-TERM STOCK INCENTIVE PLAN
PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT
(RELATIVE TSR)
This PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT
(RELATIVE TSR) (this “Agreement”), dated ___________, ______11, is between SIRIUS XM HOLDINGS INC., a Delaware
corporation (the “Company”), and JENNIFER C. WITZ (the “Executive”).
1. Grant
of PRSUs. Subject to the terms and conditions of this Agreement, the Sirius XM Holdings Inc. 2015 Long-Term Stock Incentive Plan (the
“Plan”) and the Employment Agreement dated as of December 14, 2023 between Sirius XM Radio Inc. (“Sirius XM”)
and the Executive (the “Employment Agreement”), the Company hereby grants _________12 performance-based restricted
stock units (“PRSUs”) to the Executive, representing the target number of PRSUs eligible to be earned under this Agreement
(the “Target PRSUs”). Each PRSU represents the unfunded, unsecured right of the Executive to receive one share of common
stock, par value $0.001 per share, of the Company (each, a “Share”) on the date specified in this Agreement.
2. Dividends.
If on any date while PRSUs are outstanding the Company shall pay any dividend on the Shares (other than a dividend payable in Shares),
the number of PRSUs granted to the Executive shall, as of the record date for such dividend payment, be increased by a number of PRSUs
equal to: (a) the product of (x) the number of PRSUs held by the Executive as of such record date, multiplied by (y) the per Share amount
of any cash dividend (or, in the case of any dividend payable, in whole or in part, other than in cash, the per Share value of such dividend,
as determined in good faith by the Company), divided by (b) the average closing price of a Share on the Nasdaq Global Select Market for
the twenty (20) trading days preceding, but not including, such record date. In the case of any dividend declared on Shares that is payable
in the form of Shares, the number of PRSUs granted to the Executive shall be increased by a number equal to the product of (1) the aggregate
number of PRSUs held by the Executive on the record date for such dividend, multiplied by (2) the number of Shares (including any fraction
thereof) payable as a dividend on a Share. In the case of any other change in the Shares occurring after the date hereof, the number of
PRSUs shall be adjusted as set forth in Section 4(b) of the Plan.
3. Issuance
of Shares Subject to PRSUs.
(a) Performance Metric. All or a portion
of the PRSUs shall be eligible to vest based on the Company’s level of achievement of the Performance Metric set forth on the Performance
11 The “Grant Date” as defined in the Employment
Agreement.
12 Number to be computed in accordance with Section 4(b)(iv)
of the Employment Agreement.
Matrix attached hereto as Annex A (the “Performance
Matrix”), subject to the terms set forth therein and herein.
(b) Calculation of Shares to be Issued. No
later than sixty (60) days following the end of the Performance Period (as defined in the Performance Matrix), the Company shall certify
the Company’s level of achievement of the Performance Metric (such actual date of certification, the “Certification Date”).
Upon the Certification Date, the applicable portion of the Target PRSUs determined by the Payout Percentage (as defined in the Performance
Matrix) as a percentage of the Target PRSUs shall be calculated and shall vest, subject to the Executive’s continuous employment
with Sirius XM through the last day of the Performance Period (except as otherwise set forth herein) (such PRSUs, the “Vested
Units”). On the Certification Date, any PRSUS which do not become Vested Units in accordance with the immediately preceding
sentence shall immediately be forfeited and cancelled, and the Executive shall not be entitled to any compensation or other amount with
respect thereto.
(c) Issuance of Vested Units. Subject to
the terms of this Agreement and/or the Plan, the Company shall issue, or cause there to be transferred, to the Executive on the first
business day following the Certification Date, subject to the Executive’s continuous employment with Sirius XM on the last day of
the Performance Period, a number of Shares equal to the number of Vested Units. In no event shall the Shares issued hereunder be issued
later than the March 15th following the end of the Performance Period.
(d) Termination. Except as otherwise set
forth herein, if the Executive’s employment with Sirius XM terminates for any reason prior to the last day of the Performance Period,
then all of the PRSUs shall immediately terminate without consideration. Notwithstanding the foregoing, if the Executive’s employment
with Sirius XM is terminated prior to December 31, 2026 (x) due to death or “Disability” (as defined in the Employment
Agreement), (y) by Sirius XM without “Cause” (as defined in the Employment Agreement), or (z) by the Executive for
“Good Reason” (as defined in the Employment Agreement), then the Target PRSUs, to the extent not previously settled,
cancelled or forfeited, shall, subject to the second to last sentence of this Section 3(d), immediately become vested and the Company
shall issue, or cause there to be transferred, to the Executive, on the sixtieth day following such termination of employment, the amount
of Shares equal to the number of Target PRSUs granted to the Executive under this Agreement, and as adjusted pursuant to Section 2 above,
if applicable. In no event shall such Target PRSUs be issued or transferred later than the March 15th following the year of
the Executive’s termination of employment. In the event the Executive’s employment with Sirius XM terminates due to death
or Disability, by Sirius XM without Cause or by the Executive for Good Reason, the condition in Section 3(c) that the Executive be an
employee of Sirius XM shall be waived; provided that the Executive executes a release in accordance with Section 6(g) of the Employment
Agreement (except that the Company’s General Counsel may waive such requirement in the case of the Executive’s death). Notwithstanding
anything herein to the contrary, if the Executive’s employment terminates for any reason on or after December 31, 2026, the Executive
shall, without any requirement of executing a release, receive the Vested Units in accordance with, and at the time provided, in Section
3(c).
4. Change
of Control. Notwithstanding the foregoing provisions, in the event of a Change of Control, the PRSUs shall be governed by the terms
of the Plan; provided that any transactions between the Company, Sirius XM and/or any of their respective wholly-owned subsidiaries,
on the one hand, and Liberty Media Corporation, any Qualified Distribution Transferee (as defined in the Investment Agreement, dated as
of February 17, 2009, between the Company and Liberty Radio LLC, as amended) and/or any of their respective wholly-owned subsidiaries,
on the other hand, shall not constitute a Change of Control under the Plan or this Agreement.
5. Non-transferable.
The PRSUs may not be transferred, assigned, pledged or hypothecated in any manner (whether by operation of law or otherwise), other than
by will or by the applicable laws of descent and distribution, and shall not be subject to execution, attachment or similar process. Any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of PRSUs or of any right or privilege conferred hereby shall be
null and void. In the event of the Executive’s death, any amounts owed to the Executive hereunder shall instead be paid to the Executive’s
designated beneficiary (or, if none, to the Executive’s estate).
6. Withholding.
Prior to delivery of the Shares pursuant to this Agreement, the Company shall determine the amount of any United States federal, state
and local income taxes, if any, which are required to be withheld under applicable law and shall, as a condition of delivery of the Shares
pursuant to this Agreement, collect from the Executive the amount of any such tax to the extent not previously withheld in any manner
permitted by the Plan.
7. No
Rights of a Stockholder. The Executive shall not have any rights as a stockholder of the Company with respect to any Shares until
the Shares have been issued. Once a PRSU vests and a Share is issued to the Executive pursuant to Section 3, such PRSU is no longer considered
a PRSU for purposes of this Agreement.
8. Rights
of the Executive. Neither this Agreement nor the PRSUs shall confer upon the Executive any right to, or guarantee of, continued employment
by or service with Sirius XM, or in any way limit the right of Sirius XM to terminate the employment or service of the Executive at any
time, subject to the terms of any written employment or similar written agreement between the Executive and Sirius XM.
9. Professional
Advice. The acceptance of the PRSUs may have consequences under federal and state tax and securities laws that may vary depending
upon the individual circumstances of the Executive. Accordingly, the Executive acknowledges that the Executive has been advised to consult
with the Executive’s personal legal and tax advisors in connection with this Agreement and the PRSUs.
10. Agreement
Subject to the Plan. This Agreement and the PRSUs are subject to the terms and conditions set forth in the Plan, which terms and conditions
are incorporated herein by reference. Capitalized terms used herein but not otherwise defined shall have the same meanings as in the Plan.
The Executive acknowledges that a copy of the Plan is posted on Sirius XM’s intranet site and the Executive agrees to review it
and comply with its terms. This Agreement, the Employment Agreement and the Plan constitute the entire understanding between or among
the Company, Sirius XM and the Executive with respect to the PRSUs.
In the event of any conflict between this Agreement and the Plan, the Plan shall govern and prevail.
11. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, and shall bind and
inure to the benefit of the heirs, executors, personal representatives, successors and assigns of the parties hereto. Any disputes arising
from or relating to this Agreement shall be subject to arbitration pursuant to Section 20 of the Employment Agreement.
12. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or when telecopied
(with confirmation of transmission received by the sender), three (3) business days after being sent by certified mail, postage prepaid,
return receipt requested or one (1) business day after being delivered to a nationally recognized overnight courier with next day delivery
specified to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
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Sirius XM Holdings Inc. |
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1221 Avenue of the Americas |
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35th Floor |
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New York, New York 10020 |
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Attention: General Counsel |
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Executive: |
Address on file at the |
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office of Sirius XM |
Notices sent by email or other electronic means not specifically authorized
by this Agreement shall not be effective for any purpose of this Agreement.
13. Binding
Effect. This Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance
with its terms.
14. Amendment.
The rights of the Executive hereunder may not be impaired by any amendment, alteration, suspension, discontinuance or termination of the
Plan or this Agreement without the Executive’s consent.
15. Section
409A. This Agreement and the PRSUs granted hereunder are intended to be exempt from Section 409A of the Code and the rules and regulations
thereunder such as to avoid any additional taxation under the Section 409A of the Code. Any ambiguity herein shall be interpreted in accordance
with the foregoing.
16. Clawback
Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any compensation realized by the Executive pursuant
to this Agreement or any other agreement or arrangement with the Company, Sirius XM or any of their respective affiliates, which is subject
to recovery under any law, government regulation or stock exchange listing requirement, whether in effect prior to, as of, or at any time
following, the date of the Employment Agreement, shall be subject to such deductions and clawback in accordance with
the policy adopted by the Company and as may be required
to be made pursuant to such law, government regulation or stock exchange listing requirement.
IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first above written.
SIRIUS XM HOLDINGS INC.
By: |
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Faye Tylee |
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JENNIFER C. WITZ |
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Chief People + Culture Officer |
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Annex A
Performance Matrix
Target Award: Participant’s overall
target-level award hereunder is equal to ________ PRSUs (the “Target PRSUs”).
The “Performance Period” shall
be January 1, 2024 through December 31, 2026.
The “Performance Metric” shall
be the three-year total shareholder return (“TSR”) of the Company relative to the other entities in the TSR Index (as
defined below). Achievement of the Performance Metric shall be determined by the percentile rank of the Company’s TSR relative to
the TSR of each other entity in the TSR Index.
Determination of TSR: TSR for the Company
and each other entity in the TSR Index shall be determined in accordance with the following formula. TSR shall be equal to (a) divided
by (b) minus (c), expressed as a percentage, where:
(a) is equal to the product of (i) and (ii), where
(i) is the Ending Price and (ii) is the Reinvestment Factor;
(b) is equal to the Starting
Price; and
(c) is equal to one.
For purposes of determining TSR:
“Starting Price” means the average
closing price of one share of common stock on the applicable stock exchange during the twenty (20) trading days immediately preceding
and including the first day of the Performance Period.
“Ending Price” means the average
closing price of one share of common stock on the applicable stock exchange during the twenty (20) trading days immediately preceding
and including the last day of the Performance Period; provided that, in the case of a Change of Control, the Ending Price for the
Company shall be the fair market value of a Share immediately prior to the Change of Control, and the Ending Price for all other companies
shall be the average closing price of one share of common stock on the applicable stock exchange during the twenty (20) trading days immediately
preceding the date of the Change of Control.
“Reinvestment Factor” means
the Total Share Count at the end of the Performance Period.
“Total Share Count” equals one
share of the Company’s common stock on the first day of the Performance Period, which is adjusted cumulatively for any dividends
declared over the Performance Period. The adjustment for each dividend declaration shall increase the Total Share Count by an amount calculated
as the sum of (x) and (y), where:
(x) equals the Current Total Share Count; and
(y) equals the calculated result of (i) multiplied
by (ii) and divided by (iii), where (i) is the Current Total Share Count, (ii) is the dollar value of the declared dividend, and (iii)
is the closing price of the company’s Common stock on the payment date.
“Current Total Share Count” means
the Total Share Count before each dividend adjustment, if any.
The Company’s “Rank” shall
be determined by the Company’s position within the ranking of each entity in the TSR Index (including the Company) in descending
order based on their respective TSRs (with the highest TSR having a Rank of one). For purposes of developing the ordering provided in
the immediately-preceding sentence, (A) any entity that filed for bankruptcy protection under the United States Bankruptcy Code during
the Performance Period shall be assigned the lowest order of any entity in the TSR Index such that such entity’s TSR is fixed at
-100%, (B) any entity that is acquired during the Performance Period, or otherwise no longer listed on a national securities exchange
at the end of the Performance Period (other than the Company), shall be removed from the TSR Index and shall be excluded for purposes
of ordering the entities in the TSR Index (and for purposes of calculating the Company’s Percentile), and (C) any entity that has
issued multiple classes of stock that are contained in the TSR Index shall be aggregated and considered one entity.
After determining the Company’s Rank, the
Company’s “Percentile” will be calculated as follows:
where:
“P” represents the Percentile which
will be rounded, if necessary, to the nearest whole percentile by application of regular rounding.
“N” represents the total number of entities
in the TSR Index (including the Company, but after removal of any entities in accordance with the calculation of the Rank).
“R” represents Company’s Rank
(as determined above).
The “Payout Percentage” shall
be determined as follows, subject to the exception below:
· Threshold
Performance: If the Company’s Percentile equals 25%, the Payout Percentage shall be 50% of the Target PRSUs. The Payout Percentage
shall equal zero if the Company Percentile is less than 25%.
· Target
Performance: If the Company’s Percentile equals 50%, the Payout Percentage shall be 100% of the Target PRSUs.
· Maximum
Performance: If the Company’s Percentile equals or exceeds 75%, the Payout Percentage shall be 150% of the Target PRSUs.
Straight-line interpolation shall be used to determine
the Payout Percentage for any Company Percentile between 25% and 75%, based upon the Payout Percentages set forth above.
The following exception exists with respect to the
Payout Percentage determination set forth above: If the Company’s absolute TSR (irrespective of its Rank or Percentile) is less
than 0%, then the Payout Percentage shall not exceed 100% of the Target PRSUs (subject to adjustment as set forth in Section 2 of the
Agreement, if applicable).
In addition to the Company, the “TSR Index”
shall be comprised of the companies in the S&P 500 Index as in effect on the first day of the Performance Period (subject to adjustment
as set forth in the definition of Rank above).
The Compensation Committee of the Board of Directors
shall be permitted to adjust or modify the calculations set forth above as it deems appropriate, including pursuant to any adjustments
under Sections 4(b) and 12(c) of the Plan.
Exhibit E
AGREEMENT AND RELEASE
This Agreement and Release, dated as of _________,
20__ (this “Agreement"), is entered into by and between JENNIFER C. WITZ (the “Executive”) and SIRIUS
XM RADIO INC. (the “Company”).
The purpose of this Agreement is to completely and
finally settle, resolve, and forever extinguish all obligations, disputes and differences arising out of the Executive’s employment
with and separation from the Company.
NOW, THEREFORE, in consideration of the mutual promises
and covenants contained in this Agreement, the Executive and the Company hereby agree as follows:
1. The
Executive’s employment with the Company is terminated as of _____________, 20__ (the “Termination Date”).
2. The
Company and the Executive agree that the Executive shall be provided severance pay and other benefits, less all legally required and authorized
deductions, in accordance with the terms of Section 6(f)(ii) of the Employment Agreement between the Executive and the Company, dated
as of December 14, 2023 (the “Employment Agreement”) [and shall be provided accelerated vesting of equity awards in
accordance with the equity award agreements listed on Appendix A13]; provided that no such severance benefits shall be
paid or provided if the Executive revokes this Agreement pursuant to Section 4 below. The Executive acknowledges and agrees that she is
entering into this Agreement in consideration of such severance benefits and the Company’s agreements set forth herein. All vacation
pay earned and unused as of the Termination Date will be paid to the Executive to the extent required by law. Except as set forth above,
the Executive will not be eligible for any other compensation or benefits following the Termination Date other than any vested accrued
benefits under the Company’s compensation and benefit plans, and other than the rights, if any, granted to the Executive under the
terms of any stock option, restricted stock, performance-based restricted stock or other equity award agreements or plans and other than
rights to indemnification and to directors’ and officers’ liability insurance under the Employment Agreement, the Certificates
of Incorporation and Bylaws of Sirius XM Holdings Inc. (“Holdings”) and the Company and their affiliates (or similar
constituent documents of affiliates) or the provisions of Delaware law.
3. The
Executive, for herself, and for her heirs, attorneys, agents, spouse and assigns, hereby waives, releases and forever discharges Holdings,
the Company and their respective parents, subsidiaries, and affiliated companies and its and their predecessors, successors, and assigns,
if any, as well as all of their officers, directors and employees, stockholders, agents, servants, representatives, and attorneys, and
the predecessors, successors, heirs and assigns of each of them (collectively “Released Parties”), from any and all
grievances,
13 Appendix A to include any equity award agreements that
provide for accelerated vesting and a release requirement.
claims, demands, causes of action, obligations,
damages and/or liabilities of any nature whatsoever, whether known or unknown, suspected or claimed, which the Executive ever had,
now has, or claims to have against the Released Parties, by reason of any act or omission occurring before the Executive’s
execution hereof, including, without limiting the generality of the foregoing, (a) any act, cause, matter or thing stated, claimed
or alleged, or which was or which could have been alleged in any manner against the Released Parties prior to the execution of this
Agreement and (b) all claims for any payment under the Employment Agreement; provided that nothing contained in this
Agreement shall affect the Executive’s rights (i) to indemnification from Holdings, the Company or their affiliates as
provided in the Employment Agreement or otherwise; (ii) to coverage under the insurance policies of Holdings, the Company or their
affiliates covering officers and directors; (iii) to other benefits under the Employment Agreement which by their express terms
extend beyond the Executive’s separation from employment (including, without limitation, the Executive’s rights under
Section 6(f) of the Employment Agreement); (iv) to vested equity awards (after giving effect to the terms of the applicable equity
award agreements), (iv) under this Agreement and (vi) claims that cannot be waived as a matter of law, and (c) all claims for
discrimination, harassment and/or retaliation, under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of
1991, as amended, the New York State Human Rights Law, as amended, as well as any and all claims arising out of any alleged contract
of employment, whether written, oral, express or implied, or any other federal, state or local civil or human rights or labor law,
ordinances, rules, regulations, guidelines, statutes, common law, contract or tort law, arising out of or relating to the
Executive’s employment with and/or separation from the Company, including but not limited to the termination of her employment
on the Termination Date, and/or any events occurring prior to the execution of this Agreement.
4. The
Executive specifically waives all rights or claims that she has or may have under the Age Discrimination In Employment Act of 1967, 29
U.S.C. §§ 621-634, as amended (“ADEA”), including, without limitation, those arising out of or relating to
the Executive’s employment with and/or separation from the Company, the termination of her employment on the Termination Date, and/or
any events occurring prior to the execution of this Agreement. In accordance with the ADEA, the Company specifically hereby advises the
Executive that: (1) she may and should consult an attorney before signing this Agreement, (2) she has [twenty-one (21)/forty-five (45)]14
days to consider this Agreement, and (3) she has seven (7) days after signing this Agreement to revoke this Agreement.
5. Notwithstanding
the above, nothing in this Agreement prevents or precludes the Executive from (a) challenging or seeking a determination of the validity
of this Agreement under the ADEA; or (b) filing an administrative charge of discrimination under any applicable statute or participating
in any investigation or proceeding conducted by a governmental agency.
6. This
release does not affect or impair the Executive’s rights with respect to workman’s compensation or similar claims under applicable
law or any claims under medical, dental, disability, life or other insurance arising prior to the date hereof.
14 To be determined by the Company in connection with the
termination.
7. The
Executive warrants that she has not made any assignment, transfer, conveyance or alienation of any potential claim, cause of action, or
any right of any kind whatsoever, including but not limited to, potential claims and remedies for discrimination, harassment, retaliation,
or wrongful termination, and that no other person or entity of any kind has had, or now has, any financial or other interest in any of
the demands, obligations, causes of action, debts, liabilities, rights, contracts, damages, costs, expenses, losses or claims which could
have been asserted by the Executive against the Company or any other Released Party.
8. The
Executive shall not make any disparaging remarks about any of Holdings, the Company, Liberty Media Corporation or any of their directors,
officers, agents or employees (collectively, the “Nondisparagement Group”) and/or any of their respective practices
or products; provided that the Executive may provide truthful and accurate facts and opinions about any member of the Nondisparagement
Group where required to do so by law or in proceedings to enforce or defend her rights under this Agreement or any other written agreement
between the Executive and a member of the Nondisparagement Group and may respond to disparaging remarks about the Executive made by any
member of the Nondisparagement Group. The Company and Holdings shall not, and they shall instruct their officers and directors not to,
make any disparaging remarks about the Executive; provided that any member of the Nondisparagement Group may provide truthful and
accurate facts and opinions about the Executive where required to do so by law and may respond to disparaging remarks made by the Executive
or the Executive’s agents or family members.
9. The
Company hereby represents and warrants that, except as previously disclosed in writing to the Executive, it is not aware of any facts
or circumstances as of the date of this Agreement that would give rise to or serve as a basis for any claim against the Executive in connection
with the employment and termination of employment of the Executive.
10. The
parties expressly agree that this Agreement shall not be construed as an admission by any of the parties of any violation, liability or
wrongdoing, and shall not be admissible in any proceeding as evidence of or an admission by any party of any violation or wrongdoing.
The Company expressly denies any violation of any federal, state, or local statute, ordinance, rule, regulation, order, common law or
other law in connection with the employment and termination of employment of the Executive.
11. In
the event of a dispute concerning the enforcement of this Agreement, the finder of fact shall have the discretion to award the prevailing
party reasonable costs and attorneys’ fees incurred in bringing or defending an action, and shall award such costs and fees to the
Executive in the event the Executive prevails on the merits of any action brought hereunder. All other requests for relief or damages
awards shall be governed by Sections 20(a) and 20(b) of the Employment Agreement.
12. The
parties declare and represent that no promise, inducement, or agreement not expressed herein has been made to them.
13. This
Agreement in all respects shall be interpreted, enforced and governed under the laws of the State of New York and any applicable federal
laws relating to the subject matter of this Agreement. The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning,
and not strictly for or against any of the parties. This Agreement shall be construed as if jointly prepared by the Executive and the
Company. Any uncertainty or ambiguity shall not be interpreted against any one party.
14. This
Agreement, the Employment Agreement, [and list any outstanding award agreements] between the Executive and the Company [or Sirius
XM Holdings Inc., as applicable,] contain the entire agreement of the parties as to the subject matter hereof. No modification or waiver
of any of the provisions of this Agreement shall be valid and enforceable unless such modification or waiver is in writing and signed
by the party to be charged, and unless otherwise stated therein, no such modification or waiver shall constitute a modification or waiver
of any other provision of this Agreement (whether or not similar) or constitute a continuing waiver.
15. The
Executive and the Company represent that they have been afforded a reasonable period of time within which to consider the terms of this
Agreement (including but not limited to the foregoing release), that they have read this Agreement, and they are fully aware of its legal
effects. The Executive and the Company further represent and warrant that they enter into this Agreement knowingly and voluntarily, without
any mistake, duress, coercion or undue influence, and that they have been provided the opportunity to review this Agreement with counsel
of their own choosing. In making this Agreement, each party relies upon her or its own judgment, belief and knowledge, and has not been
influenced in any way by any representations or statements not set forth herein regarding the contents hereof by the entities who are
hereby released, or by anyone representing them.
16. This
Agreement may be executed in counterparts, all of which shall be considered one and the same agreement, and shall become effective when
one or more counterparts have been signed by each of the parties and delivered to the other parties. The parties further agree that delivery
of an executed counterpart by facsimile or pdf shall be as effective as delivery of an originally executed counterpart. This Agreement
shall be of no force or effect until executed by all the signatories.
17. The
Executive warrants that she will return to the Company all software, computers, computer-related equipment, keys and all materials (including,
without limitation, copies) obtained or created by the Executive in the course of her employment with the Company on or before the Termination
Date; provided that the Executive will be able to keep her cell phones, personal computers, personal contact list and the like
so long as any Confidential Information (as defined in the Employment Agreement) is removed from such items.
18. Any
existing obligations the Executive has with respect to confidentiality, nonsolicitation of employees and third parties and noncompetition
under Sections 7 and 8 of the Employment Agreement shall remain in full force and effect in accordance with their terms.
19. Any
disputes arising from or relating to this Agreement shall be subject to arbitration pursuant to Section 20 of the Employment Agreement.
20. Should
any provision of this Agreement be declared or be determined by a forum with competent jurisdiction to be illegal or invalid, the validity
of the remaining parts,
terms or provisions shall not be affected thereby
and said illegal or invalid part, term, or provision shall be deemed not to be a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the respective dates set forth below.
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SIRIUS XM RADIO INC. |
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Dated: |
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By: |
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Name: |
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Title: |
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Dated: |
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JENNIFER C. WITZ |
Exhibit 10.2
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1221 Avenue of the Americas
35th Floor
New York, NY 1020
tel 212 584 5100
fax 212 584 5200
www.siriusxm.com
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December 14,
2023
Ms. Jennifer C. Witz
Sirius XM Radio Inc.
1221 Avenue of the Americas
35th Floor
New York, New York 10020
Use of Private Aircraft
Dear Jennifer:
This letter (this “Agreement”)
sets forth our agreement with respect to your use of a private aircraft (the “Aircraft”) arranged by Sirius XM Radio
Inc. (“Sirius XM”) during the Term (as defined below).
1. Use of the Aircraft.
During the Term, you may use up to 30 hours per year worth of flight time (the “Annual Allotment”) on the Aircraft
for personal use, which shall include travel to and from your homes (“Personal Flight Time”). The Annual Allotment
for any partial year during the Term shall be reduced on a pro rata basis. Sirius XM will not have any obligation to pay you for
any unused Annual Allotment. Any unused Annual Allotment with respect to any year may be carried over to any subsequent year; provided
that you may not use more than 90 hours of Personal Flight Time during the Term or, in the event the Term ends prior to December
31, 2026, the aggregate number of hours of Personal Flight Time pro rated for such shorter Term.
2. IRS Reporting. The fair
market value of Personal Flight Time will be reflected as income on your W-2 in accordance with applicable IRS regulations
based on the Standard Industry Fare Level formula (SIFL) pursuant to 26 C.F.R. §1.61-21(g) or a comparable successor
provision.
3. Term. The term of this
Agreement (the “Term”) will commence on January 1, 2024 and will expire on the earliest of (i) the date that you
cease to be employed as a full-time employee of Sirius XM under the terms of the Employment Agreement, dated as of December
13, 2023, between you and Sirius XM and (ii) December 31, 2026.
Ms. Jennifer C. Witz |
2 |
December 14, 2023 |
4. Governing Law. This Agreement
will be governed by, and will be construed and enforced in accordance with, the laws of the State of New York.
5. Entire Agreement. This
Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof
and supersedes any and all previous written or oral representations, promises, agreements or understandings of whatever
nature between the parties with respect to the subject matter. This Agreement may not be altered or amended except by an
agreement in writing signed by both parties. This Agreement may be signed in counterparts.
If you are in agreement with the foregoing,
please execute the enclosed copy of this letter.
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Very truly yours, |
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Sirius XM Radio Inc. |
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/s/ Patrick Donnelly |
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Patrick Donnelly |
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Executive Vice President, General |
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Counsel and Secretary |
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Agreed: |
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/s/ Jennifer C. Witz |
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Jennifer C. Witz |
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