EX-10.1 2 meyerjimemplagmt.htm EXHIBIT 10.1
`
`Exhibit 10.1
`
`EMPLOYMENT AGREEMENT
`
`This EMPLOYMENT AGREEMENT (this “Agreement”), dated as of January 10, 2018 (the
`“Effective Date”), is between SIRIUS XM RADIO INC., a Delaware corporation (the “Company”), and JAMES
`E. MEYER (the “Executive”).
`
`WHEREAS, the Company and the Executive previously entered into an employment agreement
`dated as of August 11, 2015 (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, to reflect the terms and conditions of the
`Executive’s continued employment with the Company.
`
`In consideration of the mutual covenants and conditions set forth herein, the Company and the
`Executive agree as follows:
`
`Employment. Subject to the terms and conditions of this Agreement, the Company
`1.
`hereby employs the Executive, and the Executive hereby agrees to continue his employment with the Company.
`
`Duties and Reporting Relationship. (a) The Executive shall continue his employment as
`2.
`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 (the “Board”). During the Term
`(as defined below), 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 his skills and render services to the best of his
`ability, and devote all of his working time and efforts, in supervising the business and affairs of the Company
`and Holdings. In addition, the Executive shall perform such other activities and duties consistent with his
`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, (ii) service as a director and
`chairman of the board of directors of Tivo Corporation, (iii) service as a director of Pandora Media, Inc.
`(“Pandora”), or (iv) service on other boards of directors with the express written consent of the Board, which
`consent, with respect to one additional directorship, will not be unreasonably withheld.
`
`The Executive shall generally perform his duties and conduct his business at the
`(b)
`principal offices of the Company in New York, New York.
`
`Unless otherwise required by law, administrative regulation or the listing standards of
`(c)
`the exchange on which Holdings’ shares are primarily traded, the Executive, in his capacity as Chief Executive
`Officer, shall report solely and exclusively to the full Board.
`
`Term. The term of this Agreement shall commence on the Effective Date and shall end
`3.
`on December 31, 2018, unless terminated earlier pursuant to the provisions of Section 6 (the “Term”).
`
`Compensation. (a) During the Term, the Executive shall be paid an annual base salary
`4.
`of $2,000,000 (the “Base Salary”). All amounts paid to the Executive under this Agreement shall
`
`Fraunhofer Ex 2006-1
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`2
`
`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.
`
`On the first business day following the Effective Date on which Holdings and the
`(b)
`Executive are not subject to a blackout restriction (the “First Trading Day”), the Executive shall be granted a
`number of restricted stock units equal to $7,500,000 divided by the closing price of Holdings’ common stock,
`par value $.001 per share (the “Common Stock”), on the Nasdaq Global Select Market on the First Trading Day.
`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 A.
`
`All compensation paid to the Executive hereunder shall be subject to any payroll and
`(c)
`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).
`
`Additional Compensation; Expenses and Benefits. (a) During the Term, the Company
`5.
`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.
`
`During the Term, the Executive shall be eligible to participate fully in any other benefit
`(b)
`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.
`
`During the Term, the Executive shall be eligible to participate in any bonus plans
`(c)
`generally offered to executive officers of the Company and/or Holdings. Bonus(es) will be subject to the
`Executive’s individual performance and satisfaction of objectives established by the Board or the compensation
`committee of the Board (the “Compensation Committee”), and further are subject to the exercise of negative
`discretion to reduce bonus(es) as determined in the sole discretion of the Compensation Committee. The
`Executive’s bonus for a year, if any, shall be paid in the form of cash and, unless prohibited by law, will be paid
`during the following year by March 15th of such following year.
`
`Termination. The date upon which the Executive’s employment with the Company
`6.
`under this Agreement is deemed to be terminated in accordance with any of the provisions of this Section 6 (or
`upon the originally scheduled expiration of the Term on December 31, 2018) 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 his designated beneficiary (or, if none, to his estate).
`
`Fraunhofer Ex 2006-2
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`The Company has the right and may elect to terminate this Agreement with or without
`(a)
`Cause at any time. For purposes of this Agreement, “Cause” means the occurrence or existence of any of the
`following:
`
`3
`
`(A) a material breach by the Executive of the terms of this Agreement, (B) a
`(i)
`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 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 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
`or Holdings’ Code of Ethics, or any other written Company or Holdings policy that is communicated to
`the Executive in a similar manner as such policy is communicated to other employees of the Company or
`Holdings, which is demonstrably and materially injurious to the Company, Holdings or any of their
`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;
`
`the Executive’s willful act of dishonesty, misappropriation, embezzlement,
`(ii)
`intentional fraud, or similar intentional misconduct by the Executive involving the Company, Holdings or
`any of their affiliates;
`
`(iii)
`respect of a felony;
`
`the Executive’s conviction or the plea of nolo contendere or the equivalent in
`
`any damage of a material nature to any property of the Company, Holdings or
`(iv)
`any of their affiliates caused by the Executive’s willful misconduct or gross negligence;
`
`the repeated nonprescription use of any controlled substance or the repeated use
`(v)
`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 affiliates;
`
`the Executive’s failure to comply with the Board’s reasonable written
`(vi)
`instructions consistent with his position on a material matter within five (5) days; or
`
`conduct by the Executive that, in the reasonable good faith written
`(vii)
`determination of the Board, manifests the Executive’s lack of fitness to serve as an officer of the
`Company, Holdings or their 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.
`
`Termination of the Executive for Cause pursuant to Section 6(a) shall be
`(b)
`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
`
`Fraunhofer Ex 2006-3
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`4
`
`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 18, 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), this Agreement
`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.
`
`If the Executive has suffered a “disability” (as such term is defined in Section 409A, a
`(ii)
`“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. 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 his employment with the Company and Holdings at
`any time with or without Good Reason (as defined below). Should the Executive wish to resign from his
`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 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 cease his active employment and perform
`no more job responsibilities immediately upon or following receipt of such notice from the Executive. Further,
`any resignation by the Executive of his position with the Company shall be deemed a resignation of his position
`with Holdings (and vice versa).
`
`Should the Executive wish to resign from his employment with the Company and
`(e)
`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 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
`his 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 his position with the Company shall be deemed
`a resignation of his position 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
`
`Fraunhofer Ex 2006-4
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`5
`
`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) the Executive ceasing to report solely and exclusively to the full Board (unless
`otherwise required by Section 2(c)); or
`
`(ii) 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
`
`(iii) any reduction in the Base Salary; or
`
`(iv) any material breach by the Company of this Agreement (including but not limited
`to the provisions of Section 2); or
`
`(v) any diminution of the Executive’s titles or any material diminution in the
`Executive’s duties and/or responsibilities or authority, as set forth herein.
`
`If the employment of the Executive is terminated by the Company for Cause, by the
`(f)
`Executive other than for Good Reason or due to death or Disability, the Executive shall 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 compensation and benefits in clauses (A)
`and (B), the “Accrued Payments and Benefits”). In the case of the Executive’s termination of employment due to
`death or Disability, by the Company without Cause, by the Executive for Good Reason or upon the expiration of
`this Agreement, the Executive shall be entitled to (C) any earned but unpaid annual bonus with respect to the
`year prior to the year of termination; (D) a prorated annual bonus for the year in which his employment is
`terminated, in any such case, determined pursuant to the terms of the applicable bonus plan (other than any
`requirement of continued employment) and in accordance with the terms of Section 5(c), based on actual
`performance for such year, and payable at such time as the annual bonuses for such year are paid to other senior
`executives of the Company; and (E) any amount due to the Executive pursuant to Section 11(b) (collectively the
`compensation in clauses (C), (D), and (E), the “Supplemental Payments”). In addition, in the case of the
`Executive’s termination of employment due to death or Disability, by the Company without Cause or by the
`Executive for Good Reason, in any event prior to the First Trading Day, then, in lieu of the restricted stock units
`contemplated by Section 4(b), the Executive shall instead be entitled to receive, without setoff, counterclaim or
`other withholding, except as set forth in Section 4(c), a lump sum cash amount equal to $7,500,000 (the “Equity
`Payment”). In the case of the Executive’s termination of employment due to death or Disability, by the Company
`without Cause or by the Executive for Good Reason, then the Executive shall be entitled to receive, in addition
`to the Accrued Payments and Benefits, the Supplemental Payments and the Equity Payment, the following
`payments from the Company:
`
`(i) without setoff, counterclaim or other withholding, except as set forth in Section 4(c),
`a lump sum cash amount equal to the remaining amount of his Base Salary, at the rate in effect on the
`Termination Date, that would be payable from the Termination Date through the originally scheduled
`expiration of the Term on December 31, 2018;
`
`Fraunhofer Ex 2006-5
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`6
`
`(ii) reimbursement for the costs of continuation of medical and dental insurance
`coverage for the Executive and his dependents under the Company’s health insurance plans in effect on
`the Termination Date, from the Termination Date through the originally scheduled expiration of the Term
`on December 31, 2018, to be paid following the Executive’s submission of reasonable documentation of
`any costs so incurred. The Executive shall have the option to continue such benefits pursuant to the
`Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) at his own expense to the extent
`permitted by law for an additional eighteen (18) months; and
`
`(iii) except in the case of the Executive’s death or Disability, reimbursement of a
`monthly amount equal to the actual monthly costs to the Executive to obtain life insurance benefits
`substantially similar to those benefits provided to the Executive, from the Termination Date through the
`originally scheduled expiration of the Term on December 31, 2018; provided that (1) the amount of such
`monthly payments 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 (2)
`such payments shall cease if the Executive obtains a life insurance benefit from another employer during
`the remainder of such period.
`
`The Company’s obligations under Section 6(f) shall be conditioned upon the Executive
`(g)
`or his 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 hereto as Exhibit B
`(the “Release”) within sixty (60) days following the Termination Date; provided that the General Counsel of the
`Company may waive such requirement in the case of the Executive’s death. The lump sum amounts
`contemplated under Section 6(f) shall be paid on the sixtieth (60th) day following the Termination Date.
`
`If the employment of the Executive is terminated upon or after the expiration of the
`(h)
`Term, the Executive shall be entitled to (i) the Accrued Payment and Benefits and (ii) the Supplemental
`Payments (to the extent not previously paid pursuant to Section 6(f)).
`
`Notwithstanding any provisions of this Agreement to the contrary, if the Executive is a
`(i)
`“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.
`
`Following the termination of the Executive’s employment for any reason, if and to the
`(j)
`extent requested by the Board, the Executive agrees to resign, as may then be applicable, from the Board, the
`Board of Directors of Pandora, 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 affiliates; provided that if
`the Executive refuses to tender the Executive’s resignation after the Board has
`
`Fraunhofer Ex 2006-6
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`7
`
`made such request, then the Board will be empowered to remove the Executive from such offices and positions.
`
`Notwithstanding anything contained in this Agreement, under no circumstances shall
`(k)
`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 shall be deemed to have occurred, solely as a
`result of Holdings merging with and/or into or otherwise effecting a business combination 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 or business combination, the Executive (i) shall have retained substantially similar duties and
`responsibilities with such new publicly traded parent company (the “New Parent Company”) (including, for the
`avoidance of doubt, remaining the Chief Executive Officer of substantially the same business and operations
`operated prior to such transaction by Holdings and the Company), (ii) shall report solely and exclusively to the
`full board of directors of the New Parent Company (unless otherwise required by Section 2(c)), and (iii) 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 the Agreement, termination of the
`Executive’s employment (other than for Cause) or a Good Reason event. Further, upon the consummation of
`any such merger or business combination, New Parent Company shall assume the rights and obligations of
`Holdings under this Agreement. The parties also acknowledge and agree that 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 considered a breach of this
`Agreement.
`
`Nondisclosure of Confidential Information. (a) The Executive acknowledges that in the
`7.
`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.
`
`“Confidential Information” shall mean information about the Company’s and
`(b)
`Holdings’ (and their affiliates’) business and operations that is not disclosed by the Company or Holdings (or
`their affiliates) for financial reporting purposes and that was learned by the Executive in the course of his
`employment by the Company 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 or Holdings (or their 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 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 and/or Holdings or prepared by the Executive in the course of his employment by the Company and/or
`Holdings; provided that the Executive will be able to keep his cell phones, personal computers, personal contact
`list and the like so long as any Confidential Information is removed from such items.
`
`Fraunhofer Ex 2006-7
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`8
`
`Nothing in this Agreement will preclude, prohibit or restrict the Executive from
`(c)
`(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, 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 does
`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 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.
`
`Covenant Not to Compete. During the Executive’s employment with the Company and
`8.
`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, stockholder, officer, director, consultant, trustee or otherwise), or
`otherwise assist, any person or entity engaged (a) in any operations involving the transmission or streaming of
`radio entertainment programming in competition with the Company, (b) in the business of manufacturing,
`marketing, selling or distributing vehicles, or (c) in the business of telematics; 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 described in clauses (a) or (c) above that competes with any product or service provided
`or marketed by the Company or its affiliates at the end of the Term. The Executive agrees that, during the
`Restricted Period, he will not, directly or indirectly, 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 three (3)
`years following the end of the Term. For purposes of this Agreement, the term “radio” shall mean terrestrial
`radio, satellite radio, HD radio, internet radio and other audio delivered terrestrially, by
`
`Fraunhofer Ex 2006-8
`Sirius XM v Fraunhofer, IPR2018-00682
`
`

`

`9
`
`satellite, HD or the internet. The provisions of this Section 8 shall survive the termination of the Executive’s
`employment and the Term.
`
`Change of Control Provisions. (a) Notwithstanding any other provisions in this
`9.
`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