EX-10.1 2 c76153_ex10-1.htm
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`Exhibit 10.1
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`EMPLOYMENT AGREEMENT
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`This EMPLOYMENT AGREEMENT (this “Agreement”), dated as of January 10, 2014 (the “Effective Date”), is
`between SIRIUS XM RADIO INC., a Delaware corporation (the “Company”), and PATRICK L. DONNELLY (the “Executive”).
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`WHEREAS, the Company and the Executive previously entered into an employment agreement dated as of January
`14, 2010 (the “Prior Agreement”); and
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`WHEREAS, the Company and the Executive jointly desire to enter into this Agreement, which shall replace and
`supersede the Prior Agreement in its entirety, to reflect the terms and conditions of the Executive’s continued employment with the
`Company.
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`In consideration of the mutual covenants and conditions set forth herein, the Company and the Executive agree as
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`follows:
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`1. Employment. Subject to the terms and conditions of this Agreement, the Company hereby employs the
`Executive, and the Executive hereby agrees to continue his employment with the Company.
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`2. Duties and Reporting Relationship. (a) The Executive shall continue his employment as the Executive Vice
`President, General Counsel and Secretary of the Company and serve as the Executive Vice President, General Counsel and Secretary of
`Sirius XM Holdings Inc. (“Holdings”). In such capacity, the Executive shall be responsible for the legal affairs of the Company and
`Holdings, including all legal aspects of their obligations as reporting companies under the Securities Exchange Act of 1934, as
`amended; and the selection, hiring and supervision of outside counsel for the companies. During the Term (as defined below), the
`Executive shall, on a full-time basis and consistent with the needs of the Company and Holdings, use his skills and render services to
`the best of his ability. The Executive shall perform such activities and duties consistent with his position as the Chief Executive Officer
`of the Company or Holdings (the “CEOs”) 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 Chief Executive Officer of the Company and Holdings, other than passive investments.
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`(b) The Executive shall generally perform his duties and conduct his business at the principal offices of the
`Company in New York, New York.
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`(c) Unless otherwise required by law, administrative regulation or the listing standards of the exchange on
`which Holdings’ shares are primarily traded, the Executive shall report directly to the Chief Executive Officer of the Company and
`Holdings.
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`(d) Notwithstanding anything contained in this Agreement, under no circumstances shall the Company or
`Holdings be considered to have breached this Agreement or
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`to have terminated the Executive’s employment with or without Cause (as defined below), or shall a Good Reason event (as defined
`below) be deemed to have occurred, solely as a result of Holdings merging with and/or into the Company, Liberty Media Corporation
`or any of their wholly-owned subsidiaries (excluding a merger that would result in a Change of Control (as defined in the Sirius XM
`Radio Inc. 2009 Long-Term Stock Incentive Plan)).
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`3. Term. The term of this Agreement shall commence on the Effective Date and shall end on January 13, 2017,
`unless terminated earlier pursuant to the provisions of Section 6 or extended in accordance with Section 6(f)(v) (as applicable, the
`“Term”).
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`4. Compensation. (a) During the Term, the Executive shall be paid an annual base salary of $725,000, which
`may be subject to any increase from time to time by recommendation of the CEOs to, and approval by, the Board of Directors of
`Holdings (the “Board”) or any committee thereof (such amount, as increased, 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.
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`(b) On January 10, 2014, the Executive shall be granted the following:
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`(i) an option to purchase shares of Holdings’ common stock, par value $.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 January
`10, 2014, 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 January 10, 2014 to be equal to $4,000,000, 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; and
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`(ii) a number of restricted stock units equal to $1,000,000, divided by the closing price of the Common
`Stock on the Nasdaq Global Select Market on January 10, 2014. Such restricted stock units shall be subject to the terms and
`conditions set forth in the Restricted Stock Unit Agreement attached to this Agreement as Exhibit B.
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`(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).
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`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 him in carrying out his 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.
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`(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 Holdings generally, including,
`without limitation,
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`Fraunhofer Ex 2008-2
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`disability, medical, dental and life insurance and benefits under the Company’s or Holdings’ 401(k) savings plan.
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`(c) During the Term, the Executive shall be eligible to participate in any bonus plans generally offered to
`executive officers of the Company or Holdings. The Executive’s annual bonus (the “Bonus”) shall be determined annually by the
`CEOs, or the Board or the compensation committee of the Board (the “Compensation Committee”). Bonus(es) may be subject to the
`Executive’s individual performance and satisfaction of objectives established by the CEOs or the Board or the Compensation
`Committee, and further are subject to the exercise of discretion by the CEOs and review and approval by the Compensation
`Committee. Bonus(es), if any, will be paid in the form of cash, stock options, restricted stock, restricted stock units or other securities
`of Holdings, as determined by the Compensation Committee in its sole discretion.
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`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.
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`(a) The Company has the right and may elect to terminate this Agreement for Cause at any time. For purposes
`of this Agreement, “Cause” means the occurrence or existence of any of the following:
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`(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 or any of its 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) 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 Code of Ethics or any other written Company policy which is
`demonstrably and materially injurious to the Company, 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;
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`(ii) the Executive’s act of dishonesty, misappropriation, embezzlement, intentional fraud, or similar
`intentional misconduct by the Executive involving the Company or any of its affiliates;
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`Fraunhofer Ex 2008-3
`Sirius XM v Fraunhofer, IPR2018-00681
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`(iii) the Executive’s conviction or the plea of nolo contendere or the equivalent in respect of a felony;
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`(iv) any damage of a material nature to any property of the Company or any of its affiliates caused by
`the Executive’s willful misconduct or gross negligence;
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`(v) the 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 or its affiliates;
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`(vi) the Executive’s failure to comply with the CEOs’ reasonable written instructions on a material
`matter within five (5) days unless such instructions conflict with the Executive’s duties to the Board; or
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`(vii) conduct by the Executive that, in the reasonable good faith written determination of the Board,
`demonstrates unfitness to serve as an officer of the Company or its affiliates, including 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.
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`(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 a majority 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 a reasonable opportunity for the Executive, together with the Executive’s
`counsel, to be heard before the Board prior to such vote, finding that in the good faith opinion of the Board, the Executive was guilty of
`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), this Agreement shall terminate on the date specified by the Board in the Notice of Termination for Cause.
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`(c) (i) This Agreement and the Executive’s employment shall terminate upon the death of the Executive.
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`(ii) If the Executive is unable to perform the essential duties and functions of his position 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
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`Fraunhofer Ex 2008-4
`Sirius XM v Fraunhofer, IPR2018-00681
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`effective without such Notice of Disability Termination. This Agreement and the Executive’s employment shall terminate on the day
`such Notice of Disability Termination is received by the Executive.
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`(d) The Executive shall have the absolute right to terminate his employment at any time with or without Good
`Reason (as defined below). Should the Executive wish to resign from his position with the Company and Holdings during the Term for
`other than Good Reason (as defined below), the Executive shall give at least fourteen (14) days’ prior written notice to the Company.
`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 that the Executive perform no job responsibilities and cease his active employment immediately
`upon receipt of such notice from the Executive. Further, any resignation by Executive of his position with the Company shall be
`deemed a resignation of his position with Holdings (and vice versa).
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`(e) The Company shall have the absolute right to terminate the Executive’s employment without Cause at any
`time. This Agreement shall terminate one (1) day following receipt of such notice by the Executive; provided that the Company may, at
`its sole discretion, instruct that the Executive cease active employment and perform no more job duties immediately upon provision of
`such notice to the Executive.
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`(f) Should the Executive wish to resign from his position with the Company and Holdings for Good Reason
`during the Term, the Executive shall give at least seven (7) days’ prior written notice to the Company. This Agreement shall terminate
`on the date specified in such notice; provided that the Company may, at its sole discretion, instruct that the Executive cease active
`employment and perform no more job duties immediately upon receipt of such notice from the Executive. Further, any resignation by
`Executive of his position with the Company shall be deemed a resignation of his position with Holdings (and vice versa).
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`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:
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`(i) the assignment to the Executive by the Company or Holdings of duties not reasonably consistent
`with the Executive’s positions, duties, responsibilities, titles or offices at the commencement of the Term, any material
`reduction in the Executive’s duties or responsibilities as described in Section 2 (provided that any reduction in the Executive’s
`duties and responsibilities with respect to the Company’s customer care department shall not constitute a Good Reason event)
`or any removal of the Executive from or any failure to re-elect the Executive to any of such positions or the Executive not
`being the most senior executive, other than the CEOs, who is responsible for all legal matters and legal personnel of the
`Company and Holdings (except in connection with the termination of the Executive’s employment for Cause, Disability or as
`a result of the Executive’s death or by the Executive other than for Good Reason); or
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`Fraunhofer Ex 2008-5
`Sirius XM v Fraunhofer, IPR2018-00681
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`(ii) the Executive ceasing to report directly to the CEO of the Company and Holdings (unless
`otherwise required by Section 2(c) hereof); or
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`(iii) any requirement that the Executive report for work to a location more than twenty-five (25) miles
`from the Company’s current headquarters for more than thirty (30) days in any calendar year, excluding any requirement that
`results from the damage or destruction of the Company’s current headquarters as a result of natural disasters, terrorism, acts of
`war or acts of God or travel in the ordinary course of business; or
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`(iv) any reduction in the Base Salary; or
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`(v) the Company’s failure to make a bona fide offer in writing to renew this Agreement, for an
`additional one (1)-year term, on the terms and conditions set forth in this Agreement (including the Base Salary set forth in
`Section 4(a), but excluding any equity–based compensation set forth in Section 4(b)), at least ninety (90) days prior to (x) the
`third anniversary of the Effective Date and (y) each subsequent anniversary of the Effective Date following the third
`anniversary of the Effective Date; provided that (for purposes of this clause (y) only) this Agreement has been renewed on the
`previous anniversary of the Effective Date; or
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`(vi) any material breach by the Company of this Agreement.
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`(g) (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 (or his estate in the case of death) 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 in accordance with the terms of such plans and programs (collectively, the “Accrued Payments and Benefits”).
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`(ii) If, during the Term, the employment of the Executive is terminated by the Company without Cause or if the
`Executive terminates his employment for Good Reason, then, subject to Section 6(h), 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:
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`(A) the Accrued Payments and Benefits;
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`(B) a lump sum amount equal to the sum of (x) the Executive’s annualized Base Salary then in effect and (y)
`an amount in cash equal to the Bonus last paid (or due and payable) to the Executive in respect of the fiscal year immediately
`preceding the year in which the Termination Date occurs, with such lump sum amount to be paid on the sixtieth (60th) day
`following the Termination Date;
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`(C) the continuation for eighteen (18) months, at the Company’s expense (by direct payment, not
`reimbursement to the Executive), of medical and dental benefits
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`Fraunhofer Ex 2008-6
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`in a manner that will not be taxable to the Executive (the “Medical Severance Benefit”); and
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`(D) life insurance benefits on the same terms as provided by the Company for active employees for one (1)
`year 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 he 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 one (1)-year period.
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`(h) The Company’s obligations under Section 6(g)(ii) shall be conditioned upon the Executive 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 C (the “Release”) within sixty (60) days following the Termination Date.
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`(i) 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 his
`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.
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`(j) Unless prohibited by applicable law or the terms of the Company’s applicable medical or dental insurance
`plan, in the case of any termination of the Executive’s employment (other than due to the Executive’s death or by the Company for
`Cause), the Executive and his eligible dependents shall be entitled to participate in the Company’s medical and dental insurance plans
`until the third (3rd) anniversary of the date of termination of the Executive’s employment or, if earlier, until the date of the Executive’s
`death (as applicable, the “Medical Continuation Period”); provided that the Executive shall be solely responsible for the full payment
`of both the employee and employer portions of the premiums with respect to the continued insurance coverage after the expiration of
`the Medical Severance Benefit, if applicable, as contemplated by this Section 6(j) at the applicable COBRA rates in effect from time to
`time with respect to the Company’s medical and dental insurance plans; and provided further that, in the event that either (i) the terms
`of the Company’s applicable medical or dental insurance plan prohibit participation by the Executive or his eligible dependents or (ii)
`the Company is unable, after using its commercially reasonable efforts, to secure a stop-loss insurance policy that covers claims with
`respect to the continued insurance coverage contemplated by this Section 6(j) in excess of not more than 150% of the cost of stop-loss
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`Fraunhofer Ex 2008-7
`Sirius XM v Fraunhofer, IPR2018-00681
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`insurance coverage for the then-current employees of the Company, then the Company shall, in lieu of the applicable continued
`insurance coverage contemplated by this Section 6(j), obtain comparable coverage for the Executive and his eligible dependents at no
`additional cost to the Executive for the duration of the Medical Continuation Period, provided that the cost to provide such comparable
`coverage shall not exceed three (3) times the amount that the Company would have paid to provide such coverage to the Executive as if
`he were an active employee. The Company shall not amend any applicable medical or insurance plan primarily for the purpose of
`defeating the Executive’s rights as set forth in this Section 6(j).
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`(k) Following the termination of the Executive’s employment for any reason, if and to the extent requested by
`the Board, the Executive agrees to resign from the Board, all fiduciary positions (including as trustee) and all other offices and
`positions the Executive holds with the Company or any of its affiliates; provided that if the Executive refuses to tender the Executive’s
`resignation after the Board has made such request, then the Board will be empowered to tender the Executive’s resignation from such
`offices and positions.
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`7. Nondisclosure of Confidential Information. (a) The Executive acknowledges that in the course of his
`employment he will occupy a position of trust and confidence. The Executive shall not, except in connection with the performance of
`his functions or as required by applicable law, disclose to others or use, directly or indirectly, any Confidential Information.
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`(b) “Confidential Information” shall mean information about the Company’s and Holdings’ business and
`operations that is not disclosed by the Company or Holdings for financial reporting purposes and that was learned by the Executive in
`the course of his employment by the Company and 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 computer records) of the documents containing such Confidential
`Information, other than information that is publicly disclosed by the Company or Holdings in writing. The Executive acknowledges
`that such Confidential Information is specialized, unique in nature and of great value to the Company and Holdings, and that such
`information gives the Company and 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 his 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 or Holdings or prepared by the Executive in the course of his employment by the Company
`and Holdings; provided that the Executive will be able to keep his personal cell phones, personal blackberries, personal computers,
`personal rolodex and the like so long as any Confidential Information is removed from such items.
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`(c) The provisions of this Section 7 shall survive indefinitely.
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`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 his own account as an individual proprietor, or as a partner, associate,
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`Fraunhofer Ex 2008-8
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`stockholder, officer, director, consultant, trustee or otherwise), or otherwise assist, any person or entity engaged in any operations in
`North America involving the transmission of radio entertainment programming, the production of radio entertainment programming,
`the syndication of radio entertainment programming, the promotion of radio entertainment programming or the marketing of radio
`entertainment programming, in each case, in competition with the Company (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 as to any product or service described above that competes with any product or service provided or
`marketed by the Company on the date of the Executive’s termination of employment with the Company during the Term (as such Term
`may be extended in accordance with Section 6(f)(v) of this Agreement) (the “Milestone Date”). The Executive agrees that during the
`Restricted Period he will not solicit or assist others to solicit the employment of or hire any employee of the Company 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 mean terrestrial radio, satellite radio, HD radio, internet
`radio and other audio delivered terrestrially, by satellite, HD or the internet. Notwithstanding anything to the contrary in this Section 8,
`it shall not be a violation of this Section 8 for the Executive to join a division or business line of a commercial enterprise with multiple
`divisions or business lines if such division or business line is not engaged in a Competitive Activity; provided that the Executive
`performs services solely for such non-competitive division or business line.
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`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 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 Internal Revenue Code of 1986, as amended
`(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).
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`Fraunhofer Ex 2008-9
`Sirius XM v Fraunhofer, IPR2018-00681
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`(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; an