apply with respect to such Person) if (A) such Company Acquisition Proposal made by such Person prior to the start of the No-Shop Period Start Date is withdrawn (it being understood that any amendment, modification or replacement of such Company Acquisition Proposal shall not, in and of itself, be
deemed a withdrawal of such Company Acquisition Proposal) or (B) such Company Acquisition Proposal, in the good faith determination of the Company Board (after consultation with its outside counsel and its financial advisor), no longer is or would reasonably be expected to lead to a Superior
Proposal.
Form S-4
means the registration statement on Form S-4 to be filed with the SEC by Parent in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued in the Merger (as amended or supplemented from time to time).
GAAP
means generally accepted accounting principles in the United States.
Governmental Entity
means, anywhere in the world, any supranational, national, federal, state, provincial, municipal, local or foreign government, governmental or quasi-governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau,
agency or instrumentality, court, arbitral body or other tribunal.
HSR Act
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder.
Indebtedness
means (i) any indebtedness or other obligation for borrowed money, whether current, short-term or long-term, or secured or unsecured, and whether evidenced by a note, bond, debenture or other security or similar instrument or otherwise, (ii) any liabilities or obligations with
respect to interest rate swaps, collars, caps and similar hedging obligations or other financial agreements or arrangements entered into for the purpose of limiting or managing interest rate risks, (iii) any capitalized lease obligations, (iv) any obligations for the deferred purchase price of property or services,
and (v) guaranties, endorsements and assumptions in respect of any of the foregoing clauses (i) through (iv).
Intellectual Property
means all worldwide intellectual and industrial property rights, including all (i) patents and inventions, (ii) trademarks, service marks, corporate names, trade names, domain names, social and mobile media identifiers, logos, trade dress, design rights, and other
designations of source or origin, together with the goodwill symbolized by any of the foregoing, (iii) copyrights, (iv) trade secrets, know-how, technology, methods, processes, algorithms and confidential information, (v) artists and performers rights, including rights of performance, publicity, attribution and
integrity and (vi) all applications, registrations, renewals, continuations, continuations-in-part, divisionals, reissues, re-examinations, extensions and foreign counterparts of any of the foregoing.
Investment Agreement
means the Investment Agreement, dated June 9, 2017, by and between the Company and Sirius XM Radio.
IT Assets
means all software, systems, code, applications, websites, applications, networks and other information technology equipment, assets and infrastructure.
Knowledge
means the actual knowledge of (a) with respect to the Company, the persons set forth in
Section 8.16(a)
of the Company Disclosure Letter after reasonable inquiry and (b) with respect to Parent, the persons set forth on
Section 8.16(b)
of the Parent
Disclosure Letter after reasonable inquiry.
Laws
means any United States, federal, state or local or any foreign law (in each case, statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, statute, regulation or other similar requirement enacted, issued, adopted, promulgated, entered into or applied by
a Governmental Entity.
Lien
means any lien (statutory or otherwise), pledge, hypothecation, mortgage, lease, restriction, covenant, title defect, assignment, charge, encumbrance, adverse right, claim, option, right of first refusal, preemptive right or security interest of any kind or nature whatsoever.
Materials of Environmental Concern
means any pollutant, contaminant, hazardous or toxic substance or waste, or terms of similar meaning defined or regulated as such under, and any other substance that could reasonably be expect to result in liability pursuant to, any Environmental
Law,
A-54
including any petroleum or petroleum-containing products, asbestos, asbestos containing materials, urea-formaldehyde insulation, radioactivity, polychlorinated biphenyls, and toxic molds.
Merger Consideration Closing Value
means the product of (x) the Exchange Ratio and (y) the Parent Measurement Price.
Nasdaq
means The Nasdaq Global Select Market.
Non-U.S. Company Benefit Plan
means a Company Benefit Plan that is not subject exclusively to United States Law.
NYSE
means The New York Stock Exchange.
Order
means any order, writ, injunction, decree, judgment, award, injunction, settlement or stipulation issued, promulgated, made, rendered or entered into by or with any Governmental Entity (in each case, whether temporary, preliminary or permanent).
Owned Intellectual Property
means all Intellectual Property that is owned or purported to be owned by the Company or the Company Subsidiaries, including the Registered IP.
Parent Board
means the Board of Directors of Parent.
Parent Common Stock
means Parents shares of common stock, par value $0.001 per share.
Parent Material Adverse Effect
means any event, change, condition, occurrence or effect that, individually or in the aggregate with all other events, changes, conditions, occurrences or effects, (x) has had or would reasonably be expected to have a material adverse effect on the assets,
business, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole or (y) that prevents or materially delays or materially impairs, or that would reasonably be expected to prevent, materially delay or materially impair, Parents and Merger Subs ability to perform
their obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis by the Outside Date,
provided
that in determining whether a Parent Material Adverse Effect has occurred pursuant to clause (x) above, there shall be excluded any effect resulting
from: (i) changes in general economic or political conditions or financial, credit or securities markets in general (including changes in interest or exchange rates); (ii) changes in applicable Laws or changes in GAAP; (iii) acts of war, armed hostilities, sabotage, terrorism or natural disasters; (iv) the
negotiation or announcement of this Agreement (including the impact thereon on Parents relationships with customers, vendors, lenders or employees); (v) any changes in the credit rating of Parent, the market price or trading volume of shares of Parent Common Stock or any failure by Parent to meet
internal or published projections, forecasts or revenue or earnings predictions for any period, it being understood that any underlying event causing such changes or failures in whole or in part may be taken into account in determining whether a Parent Material Adverse Effect has occurred; (vi) any
litigation by holders of Parent Common Stock arising from allegations of a breach of fiduciary duty relating to this Agreement or the transactions contemplated hereby, (vii) any suspension of trading generally on Nasdaq; or (viii) any action or inaction by Parent or Parent Subsidiaries expressly required
by this Agreement (other than pursuant to
Section 5.2(a)
), or action taken or not taken by Parent or Parent Subsidiaries upon the written request of the Company;
provided
that in each case of clauses (i), (ii) or (iii) or (vii), such events, changes, conditions, occurrences or effects shall
be taken into account to the extent they have a materially and disproportionately adverse impact on Parent and the Parent Subsidiaries relative to other companies in the industry in which Parent and the Parent Subsidiaries operate. With respect to references to Parent Material Adverse Effect in the
representations and warranties set forth in
Section 4.4
, the exceptions in clause (iv) above shall not apply.
Parent Measurement Price
means an amount equal to the average of the volume weighted average price per share, rounded to four decimal places (with amounts 0.00005 and above rounded up), of Parent Common Stock on Nasdaq (as reported by Bloomberg L.P. or, if not reported
therein, in another authoritative source mutually selected by Parent and the Company) for the five consecutive trading day period that ends on the second complete trading day ending immediately prior to the Closing Date (for the avoidance of doubt, such second complete trading day shall be included
in the five consecutive trading day period).
A-55
Parent Preferred Stock
means preferred stock, par value $0.001 per share, of Parent.
Parent SEC Financial Statements
means the consolidated financial statements of Parent included in the Parent SEC Documents (including, in each case, any notes or schedules thereto).
Parent Stock Incentive Plans
means the Sirius XM Holdings Inc. 2015 Long-Term Stock Incentive Plan, the Sirius XM Radio Inc. 2009 Long-Term Stock Incentive Plan, the Sirius Satellite Radio 2007 Stock Incentive Plan, the Amended and Restated Sirius Satellite Radio 2003 Long-Term
Stock Incentive Plan and the XM Satellite Radio Holdings Inc. 1998 Shares Award Plan, in each case as it may be amended from time to time.
Parent Stock Issuance
means the issuance of shares of Parent Common Stock as part of the Merger Consideration.
Parent Subsidiary
means a Subsidiary of Parent.
Permit
means any governmental license, permit, certificate, approval or authorization.
Permitted Lien
means (i) any Lien for Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been established, (ii) carriers, warehousemens, mechanics, materialmens,
repairmens or other similar Liens, including statutory liens, in each case incurred in the ordinary course of business to secure claims which are not yet due and payable or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established, (iii)
pledges or deposits in connection with workers compensation, unemployment insurance and other social security legislation, (iv) statutory landlords Liens and Liens granted to landlords under any lease, (v) any purchase money security interests, equipment leases or similar financing arrangements, and
(vi) Liens created under or in connection with the Credit Agreement.
Person
means any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof, and for the avoidance of doubt shall include any group (as set forth
in Section 13(d)(3) of the Exchange Act) of Persons.
Privacy Policy
means any Company policy or agreement relating to (i) privacy, (ii) Private Data or (ii) the security or integrity of any IT Assets.
Private Data
means any personal, personally identifiable, financial, sensitive or regulated information (including credit or debt card information, bank account information or user names and passwords).
Proceeding
means any suit, action, proceeding, arbitration, mediation, audit, hearing, or inquiry commenced, brought, conducted or heard by or before any Governmental Entity.
Proxy Statement
means the Companys proxy statement to be sent to the stockholders of the Company relating to the Company Stockholders Meeting (together with any amendments or supplements thereto).
Representatives
means, with respect to any Person, such Persons officers, agents, employees, consultants, professional advisers (including attorneys, accountants and financial advisors) and debt financing sources.
SEC
means the United States Securities and Exchange Commission.
Securities Act
means the Securities Act of 1933, as amended, and the related rules and regulations promulgated thereunder.
Specified Persons
means the Persons set forth on
Section 8.16(c)
of the Parent Disclosure Letter.
Subsidiary
means, with respect to any Person, any other corporation, partnership, joint venture, limited liability company or any other entity (i) of which such first Person or a Subsidiary of such first Person is a general partner or managing member or (ii) at least a majority of the
securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or Persons performing similar functions with respect to such entity is
A-56
directly or indirectly owned or controlled by such first Person and/or one or more Subsidiaries thereof.
Takeover Law
means any state business combination, affiliated transaction, control share acquisition, fair price, moratorium or other anti-takeover Law.
Taxes
means any and all federal, state, local, foreign or other taxes, charges, fees, levies, or other similar assessments (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including any
income, franchises, windfall or other profits, gross receipts, property, capital, sales, use, transfer, registration, property, inventory, license, capital stock, payroll, employment, unemployment, social security, workers compensation, severance, stamp, customs, duties, occupation, premium or net worth, excise,
withholding, ad valorem, value added, estimated or other tax of any kind.
Tax Return
means any report, return, document, declaration or other information or filing that is filed or required to be filed with a Governmental Entity with respect to Taxes (whether or not a payment is required to be made with respect to such filing), including, without limitation,
information returns, declarations of estimated Taxes, amended returns or claims for refunds (and any attachments thereto).
Treasury Regulations
means the United States Treasury Regulations promulgated under the Code.
WARN Act
means the Worker Adjustment and Retraining Notification Act of 1988 and any similar mass layoff or plant closing Laws, or other Laws requiring advance notice of termination of employment and/or payments to affected employees.
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A-57
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be duly executed, all as of the date first written above.
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SIRIUS XM HOLDINGS INC.
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By:
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/s/ Patrick L. Donnelly
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Name:
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Patrick L. Donnelly
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Title:
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Executive Vice President, General Counsel and Secretary
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WHITE OAKS ACQUISITION CORP.
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By:
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/s/ Patrick L. Donnelly
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Name:
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Patrick L. Donnelly
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Title:
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Vice President and Secretary
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PANDORA MEDIA, INC.
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By:
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/s/ Roger Lynch
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Name:
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Roger Lynch
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Title:
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President & Chief Executive Officer
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ANNEX A
Form of Certificate of Incorporation of the Surviving Corporation
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PANDORA MEDIA, INC.
FIRST: The name of the corporation (which is hereinafter referred to as the
Corporation
) is Pandora Media, Inc.
SECOND: The address of the registered office of the Corporation in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the Corporations registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the DGCL), as from time to time amended.
FOURTH: The total number of shares of capital stock which the Corporation shall have authority to issue is 1,000, all of which shares shall be Common Stock having a par value per share of $0.01.
FIFTH: In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained elsewhere in this certificate of incorporation, bylaws of the Corporation may be adopted, amended or repealed by a majority of the board of directors of the Corporation. Election of
directors need not be by written ballot.
SIXTH:
(A)
Limited Liability
. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(B)
Right to Indemnification
.
1. Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that
such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this Article VI shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to
indemnification conferred in this Article VI shall be a contract right.
2. The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law.
(C)
Insurance
. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such persons status as such, whether or not the Corporation would have the power to indemnify such person against such liability under
Delaware Law.
(D)
Nonexclusivity of Rights
. The rights and authority conferred in this Article VI shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.
(E)
Preservation of Rights
. Neither the amendment nor repeal of this Article VI, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation or the bylaws
of the Corporation, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment,
repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
SEVENTH: The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the
Corporation to the Corporation or the Corporations stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in
shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article VII.
ANNEX B
Form of Bylaws of Surviving Corporation
PANDORA MEDIA, INC.
BYLAWS
ADOPTED [
], 2018
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meeting and Notice
. Meetings of the stockholders of the Corporation shall be held at such place either within or without the State of Delaware as the Board of Directors may determine.
Section 2. Annual and Special Meetings
. Annual meetings of stockholders shall be held, at a date, time and place fixed by the Board of Directors and stated in the notice of meeting, to elect a Board of Directors and to transact such other business as may properly come before the meeting.
Special meetings of the stockholders may be called by the President for any purpose and shall be called by the President or Secretary if directed by the Board of Directors.
Section 3. Notice
. Except as otherwise provided by law, at least 10 and not more than 60 days before each meeting of stockholders, written notice of the time, date and place of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall
be given to each stockholder.
Section 4. Quorum
. At any meeting of stockholders, the holders of record, present in person or by proxy, of a majority of the Corporations issued and outstanding capital stock shall constitute a quorum for the transaction of business, except as otherwise provided by law. In the absence of
a quorum, any officer entitled to preside at or to act as secretary of the meeting shall have power to adjourn the meeting from time to time until a quorum is present.
Section 5. Voting
. Except as otherwise provided by law, all matters submitted to a meeting of stockholders shall be decided by affirmative vote of a majority of the Corporations issued and outstanding capital stock present in person or by proxy.
ARTICLE II
DIRECTORS
Section 1. Number, Election and Removal of Directors
. The number of Directors that shall constitute the Board of Directors shall not be less than one or more than fifteen. The number of Directors shall be determined by the Board of Directors or the stockholders. The Directors shall be
elected by the stockholders at their annual meeting. Vacancies and newly created directorships resulting from any increase in the number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or by the sole remaining Director or by the stockholders. A
Director may be removed with or without cause by the stockholders.
Section 2. Meetings
. Regular meetings of the Board of Directors shall be held at such times and places as may from time to time be fixed by the Board of Directors or as may be specified in a notice of meeting.
Section 3. Quorum
. One-third of the total number of authorized Director seats shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board of Directors, the Directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until such a quorum is present. Except as otherwise provided by law, the Certificate of Incorporation of the Corporation or these Bylaws, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of
Directors.
Section 4. Committees
. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more committees, including, without limitation, an Executive Committee, to have and exercise such power and authority as the Board of Directors shall specify. In
the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another Director to act as the absent or disqualified member.
ARTICLE III
OFFICERS
The officers of the Corporation shall consist of a President and a Secretary, and such other additional officers with such titles as the Board of Directors shall determine, all of which shall be chosen by and shall serve at the pleasure of the Board of Directors. Such officers shall have the usual powers
and shall perform all the usual duties incident to their respective offices. All officers shall be subject to the supervision and direction of the Board of Directors. The authority, duties or responsibilities of any officer of the Corporation may be suspended by the President with or without cause. Any officer
elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause.
ARTICLE IV
GENERAL PROVISIONS
Section 1. Notices
. Whenever any statute, the Certificate of Incorporation or these Bylaws require notice to be given to any Director or stockholder, such notice may be given in writing by mail, addressed to such Director or stockholder at his address as it appears in the records of the
Corporation, with postage thereon prepaid. Such notice shall be deemed to have been given when it is deposited in the United States mail. Notice to Directors may also be given by email.
Section 2. Certificates
. The shares of the Corporation shall be uncertificated, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be certificated shares. Every holder of stock represented by certificates
shall be entitled to have a certificate signed by or in the name of the Corporation by duly authorized officers of the Corporation certifying the number of shares owned by such holder in the Corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer who has signed
or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue. The Corporation may issue a
new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owners legal representative, to give the Corporation a bond sufficient to indemnify
it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
Section 3. Fiscal Year
. The fiscal year of the Corporation shall be fixed by the Board of Directors.
***************************
Annex A1
Execution Version
JOINDER TO MERGER AGREEMENT
October 25, 2018
Reference is hereby made to that certain Agreement and Plan of Merger and Reorganization dated as of September 23, 2018 (the
Merger Agreement
), by and among Pandora Media, Inc., a Delaware corporation (the
Company
), Sirius XM Holdings Inc., a Delaware corporation (
Parent
), and
White Oaks Acquisition Corp., a Delaware corporation (
Merger Sub
). Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Merger Agreement.
In order to induce the Company, Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned (each, a
Joining Party
), hereby:
(a) represents and warrants as follows:
(i) The undersigned is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware.
(ii) The undersigned has all requisite power and authority to execute and deliver this Joinder to Merger Agreement (this
Joinder
), to perform its obligations under this Joinder and the Merger Agreement and to consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by the undersigned of this Joinder and the consummation by the undersigned of the transactions contemplated by this Joinder and the Merger Agreement have been duly authorized by all necessary corporate action on the part of the undersigned. The undersigned has duly
executed and delivered this Joinder and this Joinder constitutes the undersigneds legal, valid and binding obligation, enforceable against it in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors rights generally and by general
principles of equity.
(iii) No consent, approval, clearance, permit or authorization of, or registration or filing with, or notice to, any Governmental Entity is required to be made or obtained by the undersigned in connection with the execution or delivery of this Joinder or the consummation of the transactions
contemplated by this Joinder or the Merger Agreement, except for: (x) the filing of the Certificate of Holding Company Merger with the Secretary of State of the State of Delaware, (y) the filing of the Certificate of Sirius XM Merger with the Secretary of State of the State of Delaware and (z) the
filings, consents, approvals and waiting periods referred to in Sections 3.4(a) and 4.4(a) of the Merger Agreement.
(iv) The execution, delivery and performance of this Joinder by the undersigned does not, and the consummation by the undersigned of the transactions contemplated hereby and by the Merger Agreement will not, (i) conflict with or violate any provision of the Constituent Documents of the
undersigned, or (ii) assuming the filings, consents, approvals and waiting periods referred to in section (a)(iii) above are duly made, obtained or satisfied and the Company Stockholder Approval is obtained (A) violate any Law or Order, in either case, applicable to the undersigned or any of its
properties or assets or (B) violate, conflict with, result in the loss of any benefit under, require a payment or incur a penalty under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the properties or assets of the undersigned under, any Contract to which the undersigned is a party, or by which the undersigned or any of its properties or assets may be bound or affected,
except, in the case of the foregoing clause (ii), for such matters as, individually or in the aggregate, have not had and would not reasonably be expected to have a material adverse effect to the undersigned.
A1-1
(b) acknowledges the receipt of a copy of the Merger Agreement and agrees, effective as of the date first written above, (i) to join and become a party to the Merger Agreement, (ii) to be bound by, observe and comply with the terms and conditions of the Merger Agreement, as the same may be
amended from time to time, as a party thereto, and (x) with respect to Billboard Holding Company, Inc., New Holding Company thereunder, (y) with respect to Billboard Acquisition Sub, Inc., Holdco Merger Sub thereunder and (w) with respect to Sirius XM Radio Inc., Sirius XM Radio
thereunder and (iii) that for all purposes under the Merger Agreement, each reference to the New Holding Company shall be deemed to mean Billboard Holding Company, Inc. and each reference to the Holdco Merger Sub shall be deemed to mean Billboard Acquisition Sub, Inc.
This Joinder shall be governed by, and construed in accordance with, the Law of the State of Delaware without regard to any conflicts of law principles that would require the application of any other Law. By the execution and delivery of this Joinder, each Joining Party hereby submits to the
personal jurisdiction of any state or federal court within the State of Delaware in any suit, action or proceeding arising out of or relating to this Joinder. The provisions of Article VIII of the Merger Agreement shall apply mutatis mutandis to this Joinder.
A1-2
IN WITNESS WHEREOF,
the Joining Party has executed this Joinder as of the date first written above.
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JOINING PARTY:
|
BILLBOARD HOLDING COMPANY, INC.
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By:
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/s/ Karen Walker
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Name:
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Karen Walker
|
Title:
|
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President
|
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BILLBOARD ACQUISITION SUB, INC.
|
By:
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/s/ Karen Walker
|
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Name:
|
|
Karen Walker
|
Title:
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President
|
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SIRIUS XM RADIO INC.
|
By:
|
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/s/ Patrick L. Donnelly
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|
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Name:
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Patrick L. Donnelly
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Title:
|
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Executive Vice President, General Counsel and Secretary
|
Accepted and agreed:
|
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PANDORA MEDIA, INC.
|
By:
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/s/ Karen Walker
|
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Name:
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Karen Walker
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Title:
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Chief Accounting Officer
|
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SIRIUS XM HOLDINGS INC.
|
By:
|
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/s/ Patrick L. Donnelly
|
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|
Name:
|
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Patrick L. Donnelly
|
Title:
|
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Executive Vice President, General Counsel and Secretary
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WHITE OAKS ACQUISITION CORP.
|
By:
|
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/s/ Patrick L. Donnelly
|
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Name:
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Patrick L. Donnelly
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Title:
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Vice President and Secretary
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Annex B
Centerview Partners LLC
31 West 52nd Street
New York, NY 10019
September 23, 2018
The Board of Directors
Pandora Media, Inc.
2100 Franklin St.
Suite 700
Oakland, CA 94612
Ladies and Gentlemen:
You have requested our opinion as to the fairness, from a financial point of view, to the holders of the outstanding shares of common stock, par value $0.0001 per share (the Shares) (other than Excluded Shares, as defined below), of Pandora Media, Inc., a Delaware corporation (the Company),
of the Exchange Ratio (as defined below) provided for pursuant to the Agreement and Plan of Merger and Reorganization proposed to be entered into (the Agreement) by and among Sirius XM Holdings Inc., a Delaware corporation (Parent), White Oaks Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Parent (Merger Sub), and the Company. The Agreement provides that (a) the Company will form a Delaware corporation as a wholly owned subsidiary of the Company (New Holding Company), (b) New Holding Company will form a Delaware corporation as a
wholly owned subsidiary of New Holding Company (Holdco Merger Sub), (c) Holdco Merger Sub will be merged with and into the Company (the Holding Company Merger), as a result of which the Company will become a wholly owned subsidiary of New Holding Company, (d) immediately after
the effective time of the Holding Company Merger, the Company will convert into a Delaware limited liability company (the Conversion), (e) immediately after the effective time of the Conversion, Merger Sub will merge with and into New Holding Company (the Merger), as a result of which New
Holding Company will become a wholly owned subsidiary of Parent, and (f) immediately after the effective time of the Merger, New Holding Company will merge with and into Sirius XM Radio, Inc., a wholly owned subsidiary of Parent, as a result of which the separate existence of New Holding
Company will cease and Sirius XM Radio, Inc. will continue as the surviving corporation (collectively with the Merger, the Holding Company Merger and the other transactions contemplated by the Agreement, the Transaction). As a result of the Transaction, each issued and outstanding Share (other
than any Shares owned by the Company (including Shares held as treasury stock or otherwise) (such shares, together with any Shares held by Parent or any affiliate of the Company or Parent, Excluded Shares)) will be converted into the right to receive 1.44 (the Exchange Ratio) shares of common
stock, par value $0.001 per share (the Parent Shares), of Parent. The terms and conditions of the Transaction are more fully set forth in the Agreement.
We have acted as financial advisor to the Board of Directors of the Company in connection with the Transaction. We will receive a fee for our services in connection with the Transaction, a portion of which is payable upon the earlier of (i) the consummation of the Transaction and (ii) the 13-month
anniversary of the execution of the Agreement, and a substantial portion of which is payable contingent upon the consummation of the Transaction. In addition, the Company has agreed to reimburse certain of our expenses arising, and indemnify us against certain liabilities that may arise, out of our
engagement.
31 WEST 52ND STREET, 22ND FLOOR, NEW YORK, NY 10019
PHONE: (212) 380-2650 FAX: (212) 380-2651 WWW.CENTERVIEWPARTNERS.COM
NEW YORK
LONDON
SAN FRANCISCO
PALO ALTO
LOS ANGELES
B-1
The Board of Directors
Pandora Media, Inc.
September 23, 2018
We are a securities firm engaged directly and through affiliates and related persons in a number of investment banking, financial advisory and merchant banking activities. In the past two years, we have been engaged to provide financial advisory services to the Company from time to time, including
in connection with Parents preferred equity investment in the Company, the Companys sale of its Ticketfly business to Eventbrite and the Companys ongoing review of strategic alternatives, and we have received compensation from the Company for such services. In the past two years, we have not
been engaged to provide financial advisory or other services to Parent or Merger Sub, and we have not received compensation from Parent. We may provide investment banking and other services to or with respect to the Company or Parent or their respective affiliates in the future, for which we may
receive compensation. Certain (i) of our and our affiliates directors, officers, members and employees, or family members of such persons, (ii) of our affiliates or related investment funds and (iii) investment funds or other persons in which any of the foregoing may have financial interests or with which
they may co-invest, may at any time acquire, hold, sell or trade, in debt, equity and other securities or financial instruments (including derivatives, bank loans or other obligations) of, or investments in, the Company, Parent, or any of their respective affiliates, or any other party that may be involved in the
Transaction.
In connection with this opinion, we have reviewed, among other things: (i) a draft of the Agreement dated September 23, 2018 (the Draft Agreement); (ii) Annual Reports on Form 10-K, as amended, of the Company for the years ended December 31, 2017, December 31, 2016 and December 31,
2015 and Annual Reports on Form 10-K of Parent for the years ended December 31, 2017, December 31, 2016 and December 31, 2015; (iii) certain interim reports to stockholders and Quarterly Reports on Form 10-Q of the Company and Parent; (iv) certain publicly available research analyst reports for
the Company and Parent; (v) certain other communications from the Company and Parent to their respective stockholders; (vi) certain internal information relating to the business, operations, earnings, cash flow, assets, liabilities and prospects of the Company, including certain financial forecasts, analyses
and projections relating to the Company prepared by management of the Company and furnished to us by the Company for purposes of our analysis (the Company Forecasts) (collectively, the Company Internal Data); (vii) certain internal information relating to the business, operations, earnings, cash
flow, assets, liabilities and prospects of Parent (collectively, the Parent Internal Data); (viii) certain publicly available research analysts estimates relating to Parent furnished to us by Parent for purposes of our analysis (the Parent Public Forecasts); and (ix) certain cost savings and operating synergies
projected by the management of the Company to result from the Transaction furnished to us by the Company for purposes of our analysis (the Synergies). We have participated in discussions with members of the senior management and representatives of the Company and Parent regarding their
assessment of the Company Internal Data (including, without limitation, the Company Forecasts), the Parent Internal Data, the Parent Public Forecasts and the Synergies, as appropriate, and the strategic rationale for the Transaction. In addition, we reviewed publicly available financial and stock market
data, including valuation multiples, for the Company and compared that data with similar data for certain other companies, the securities of which are publicly traded, in lines of business that we deemed relevant. We also compared certain of the proposed financial terms of the Transaction with the
financial terms, to the extent publicly available, of certain other transactions that we deemed relevant and conducted such other financial studies and analyses and took into account such other information as we deemed appropriate.
We have assumed, without independent verification or any responsibility therefor, the accuracy and completeness of the financial, legal, regulatory, tax, accounting and other information supplied to, discussed with, or reviewed by us for purposes of this opinion and have, with your consent, relied upon
such information as being complete and accurate. In that regard, we have assumed, at your direction, that the Company Internal Data (including, without limitation, the Company Forecasts) and the Synergies have been reasonably prepared on bases reflecting the best currently available
B-2
The Board of Directors
Pandora Media, Inc.
September 23, 2018
estimates and judgments of the management of the Company as to the matters covered thereby and that the Parent Public Forecasts are a reasonable basis upon which to evaluate the future financial performance of Parent, and we have relied, at your direction, on the Company Internal Data (including,
without limitation, the Company Forecasts), the Parent Internal Data, the Parent Public Forecasts and the Synergies for purposes of our analysis and this opinion. We express no view or opinion as to the Company Internal Data (including, without limitation, the Company Forecasts), the Parent Internal
Data, the Parent Public Forecasts or the Synergies or the assumptions on which they are based. In addition, at your direction, we have not made any independent evaluation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance-sheet or otherwise) of the Company or Parent, nor
have we been furnished with any such evaluation or appraisal, and we have not been asked to conduct, and did not conduct, a physical inspection of the properties or assets of the Company or Parent. We have assumed, at your direction, that the final executed Agreement will not differ in any respect
material to our analysis or this opinion from the Draft Agreement reviewed by us. We have also assumed, at your direction, that the Transaction will be consummated on the terms set forth in the Agreement and in accordance with all applicable laws and other relevant documents or requirements,
without delay or the waiver, modification or amendment of any term, condition or agreement, the effect of which would be material to our analysis or this opinion and that, in the course of obtaining the necessary governmental, regulatory and other approvals, consents, releases and waivers for the
Transaction, no delay, limitation, restriction, condition or other change, including any divestiture requirements or amendments or modifications, will be imposed, the effect of which would be material to our analysis or this opinion. We have not evaluated and do not express any opinion as to the solvency
or fair value of the Company or Parent, or the ability of the Company or Parent to pay their respective obligations when they come due, or as to the impact of the Transaction on such matters, under any state, federal or other laws relating to bankruptcy, insolvency or similar matters. We are not legal,
regulatory, tax or accounting advisors, and we express no opinion as to any legal, regulatory, tax or accounting matters.
We express no view as to, and our opinion does not address, the Companys underlying business decision to proceed with or effect the Transaction, or the relative merits of the Transaction as compared to any alternative business strategies or transactions that might be available to the Company or in
which the Company might engage. This opinion is limited to and addresses only the fairness, from a financial point of view, as of the date hereof, to the holders of the Shares (other than Excluded Shares) of the Exchange Ratio provided for pursuant to the Agreement. We have not been asked to, nor
do we express any view on, and our opinion does not address, any other term or aspect of the Agreement or the Transaction, including, without limitation, the structure or form of the Transaction, or any other agreements or arrangements contemplated by the Agreement or entered into in connection
with or otherwise contemplated by the Transaction, including, without limitation, the fairness of the Transaction or any other term or aspect of the Transaction to, or any consideration to be received in connection therewith by, or the impact of the Transaction on, the holders of any other class of
securities, creditors or other constituencies of the Company or any other party. In addition, we express no view or opinion as to the fairness (financial or otherwise) of the amount, nature or any other aspect of any compensation to be paid or payable to any of the officers, directors or employees of the
Company or any party, or class of such persons in connection with the Transaction, whether relative to the Exchange Ratio provided for pursuant to the Agreement or otherwise. Our opinion is necessarily based on financial, economic, monetary, currency, market and other conditions and circumstances as
in effect on, and the information made available to us as of, the date hereof, and we do not have any obligation or responsibility to update, revise or reaffirm this opinion based on circumstances, developments or events occurring after the date hereof. We express no view or opinion as to what the value
of Parent Shares actually will be when issued pursuant to the Transaction or the prices at which the Shares or Parent Shares will trade or otherwise be transferable at any time, including following the announcement or consummation of the Transaction. Our opinion does not constitute a recommendation
to any
B-3
The Board of Directors
Pandora Media, Inc.
September 23, 2018
stockholder of the Company or any other person as to how such stockholder or other person should vote with respect to the Merger or otherwise act with respect to the Transaction or any other matter.
Our financial advisory services and the opinion expressed herein are provided for the information and assistance of the Board of Directors of the Company (in their capacity as directors of the Company and not in any other capacity) in connection with and for purposes of its consideration of the
Transaction. The issuance of this opinion was approved by the Centerview Partners LLC Fairness Opinion Committee.
Based upon and subject to the foregoing, including the various assumptions made, procedures followed, matters considered, and qualifications and limitations set forth herein, we are of the opinion, as of the date hereof, that the Exchange Ratio provided for pursuant to the Agreement is fair, from a
financial point of view, to the holders of Shares other than Excluded Shares.
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Very truly yours,
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CENTERVIEW PARTNERS LLC
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B-4
Annex C
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LionTree Advisors LLC
660 Madison Avenue, 15
th
Floor
New York, NY 10065
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CONFIDENTIAL
September 23, 2018
The Board of Directors
Pandora Media, Inc.
2101 Webster Street, Suite 1650
Oakland, California 94612
Dear Members of the Board:
We understand that Pandora Media, Inc. (the
Company
) proposes to enter into an Agreement and Plan of Merger and Reorganization, to be dated as of September 23, 2018 (the
Agreement
), by and among the Company, Sirius XM Holdings Inc. (the
Acquiror
) and White Oaks Acquisition
Corp., a wholly owned subsidiary of the Acquiror (
Merger Sub
), pursuant to which (i) a newly formed corporation and wholly owned subsidiary of the Company will merge with and into the Company, as a result of which the Company will become a wholly owned subsidiary of a newly formed
corporation (
New Holdco
), and each issued and outstanding share of common stock, par value $0.0001 per share, of the Company (the
Company Stock
) will be converted, subject to certain exceptions, into one validly issued, fully paid and non-assessable share of common stock of New Holdco (
New
Holdco Stock
), and (ii) immediately thereafter, Merger Sub will merge with and into New Holdco, as a result of which New Holdco will become a wholly owned subsidiary of the Acquiror, and each issued and outstanding share of New Holdco Stock will be converted, subject to certain exceptions, into
the right to receive 1.44 (the
Exchange Ratio
) validly issued, fully paid and non-assessable shares of common stock, par value $0.001 per share, of the Acquiror (the
Acquiror Stock
and, such number of shares of Company Stock to be issued, the
Consideration
).
The transactions contemplated by the Agreement (collectively, the
Transaction
) and the terms and conditions thereof are more fully set forth in the Agreement.
You have requested our opinion as to the fairness, from a financial point of view, of the Exchange Ratio pursuant to the Agreement to the public holders of Company Stock (other than the Acquiror and its respective affiliates (collectively, the
Excluded Parties
)) (without giving effect to any
impact of the Transaction on any particular stockholder of the Company other than in its capacity as a holder of Company Stock).
In arriving at our opinion, we have, among other things:
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(i)
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reviewed a draft, dated September 23, 2018, of the Agreement;
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(ii)
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reviewed certain publicly available business and financial information relating to the Company and the Acquiror;
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(iii)
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reviewed certain historical financial information and other data relating to the Company that were provided to us by the management of the Company, approved for our use by the Company, and not publicly available;
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(iv)
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reviewed certain internal financial forecasts, estimates, and other data relating to the business and financial prospects of the Company that were provided to us by the management of the Company, approved for our use by the Company, and not publicly available, including financial forecasts
and estimates for the fiscal years ending December 31, 2018, through December 31, 2025, prepared by the management of the Company;
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C-1
The Board of Directors
Pandora Media, Inc.
September 23, 2018
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(v)
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conducted discussions with members of the senior management of the Company concerning the business, operations, historical financial results, and financial prospects of the Company and the Transaction;
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(vi)
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conducted limited discussions with members of the senior management of the Acquiror concerning near term financial prospects of the Acquiror;
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(vii)
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reviewed current and historical market prices of the Company Stock and the Acquiror Stock;
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(viii)
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reviewed certain publicly available financial and stock market data with respect to certain other companies;
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(ix)
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reviewed and compared data regarding the premiums paid in certain other transactions;
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(x)
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reviewed certain financial performance data of the Company and compared that data with similar data for certain other companies; and
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(xi)
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conducted such other financial studies, analyses and investigations, and considered such other information, as we deemed necessary or appropriate.
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In connection with our review, with your consent, we have assumed and relied upon, without independent verification, the accuracy and completeness of the information provided to, discussed with, or reviewed by us for the purpose of this opinion. In addition, with your consent, we have not made
any independent evaluation or appraisal of any of the assets or liabilities (contingent or otherwise) of the Company or the Acquiror, or any of their respective subsidiaries, nor have we been furnished with any such evaluation or appraisal. With respect to the financial forecasts and estimates referred to
above, we have assumed, with your consent (and based on advice of management of the Company), that they have been reasonably prepared in good faith on a basis reflecting the best currently available estimates and judgments of the management of the Company as to the future financial performance
of the Company and its subsidiaries and will be achieved at the times and in the amounts projected. We express no opinion with respect to such forecasts or estimates. We also have assumed, with your consent, that the Transaction will have the tax consequences contemplated by the Agreement. This
opinion does not address any legal, regulatory, taxation, or accounting matters, as to which we understand that you have obtained such advice as you deemed necessary from qualified professionals, and we have assumed the accuracy and veracity of all assessments made by such advisors to the Company
with respect to such matters. Our opinion is necessarily based on economic, monetary, market, and other conditions as in effect on, and the information available to us as of, the date hereof and our opinion speaks only as of the date hereof.
Our opinion does not address the Companys underlying business decision to engage in the Transaction or any related transaction, the relative merits of the Transaction or any related transaction as compared to other business strategies or transactions that might be available to the Company, or
whether the consideration to be received by the stockholders of the Company pursuant to the Agreement represents the best price obtainable. In connection with our engagement, we did not negotiate the Exchange Ratio or any other matter with the Acquiror or its representatives on your behalf and we
were not requested to, and did not, solicit interest from other parties prior to the date hereof with respect to an acquisition of, or other business combination with, the Company or any other alternative transaction. We also express no view as to, and our opinion does not address, the solvency of the
Company or any other entity under any state, federal, or other laws relating to bankruptcy, insolvency, or similar matters. This opinion addresses only the fairness, from a financial point of view, of the Exchange Ratio pursuant to the Agreement, as of the date hereof, to the holders of Company Stock
(other than the Excluded Parties). We have not been asked to, nor do we, offer any opinion as to the terms, other than the Exchange Ratio to the extent expressly specified herein, of the Agreement or any related documents or the form of the Transaction or any related transaction (including any
agreement or transaction between any Excluded Party and the
C-2
The Board of Directors
Pandora Media, Inc.
September 23, 2018
Company or between any Excluded Party and the Acquiror), including the fairness of the Transaction to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, or other constituencies of the Company, the Acquiror, or any of their respective
affiliates. We have not been asked to, nor do we, offer any opinion with respect to any allocation of the Consideration (or any portion thereof), or the fair market value of the Company, the Acquiror, the Company Stock, or the Acquiror Stock. In addition, we express no opinion as to the fairness of the
amount or nature of any compensation to be received by any officers, directors, or employees of any parties to the Transaction, any Excluded Parties, or any class of such persons, whether relative to the Exchange Ratio or otherwise. This letter should not be construed as creating any fiduciary duty on
the part of LionTree Advisors LLC (or any of its affiliates) to any party. We express no opinion as to what the value of the Acquiror Stock will be when issued pursuant to the Transaction or the prices at which the Acquiror Stock or Company Stock will trade at any time. In rendering this opinion, we
have assumed, with your consent, that except as would not be in any way meaningful to our analysis: (i) the final executed form of the Agreement will not differ from the draft that we have reviewed, (ii) the representations and warranties of the parties to the Agreement, and the related Transaction
documents, are true and correct, (iii) the parties to the Agreement, and the related Transaction documents, will comply with and perform all covenants and agreements required to be complied with or performed by such parties under the Agreement and the related Transaction documents, and (iv) the
Transaction will be consummated in accordance with the terms of the Agreement and related Transaction documents, without any waiver or amendment of any term or condition thereof. We have also assumed, with your consent, that all governmental, regulatory, or other third-party consents and
approvals necessary for the consummation of the Transaction or otherwise contemplated by the Agreement will be obtained without any adverse effect on the Company, the Acquiror, or on the expected benefits of the Transaction in any way meaningful to our analysis.
This opinion is provided solely for the benefit of the Board of Directors of the Company (in its capacity as such) in connection with, and for the sole purpose of, its evaluation of the Transaction, and does not constitute a recommendation to any stockholder as to how such stockholder should vote or
act with respect to the Transaction or any other matter.
We have acted as financial advisor to the Board of Directors of the Company in connection with the Transaction. We will receive a fee for our services, a portion of which is payable in connection with this opinion, and the Company has agreed to reimburse certain of our expenses arising, and
indemnify us against certain liabilities that may arise, out of our engagement. In the past, we and our affiliates have provided investment banking services and capital markets services to affiliates of the Acquiror and their related entities or entities in which such affiliates have a significant direct or
indirect interest, unrelated to the proposed Transaction, for which we and our affiliates received, and may receive, compensation, including having acted as (i) financial advisor to Charter Communications, Inc., Liberty Global plc, Lions Gate Entertainment Corp., Live Nation Entertainment, Inc. and Starz
in connection with a number of merger and acquisition transactions or similar matters and (ii) co-manager in connection with certain debt offerings of such entities (including Charter Communications, Inc. and Live Nation Entertainment, Inc.). We and our affiliates may also seek to provide such services
to the Company, the Acquiror, their respective affiliates and their related entities or entities in which they have a significant direct or indirect interest, and expect to receive fees for the rendering of these services. In addition, from time to time, John C. Malone, who has a significant indirect ownership
interest in the Acquiror through affiliated entities, and Greg Maffei, who is Chairman of the Company and Chairman of the Acquiror, have invested in, or alongside with, investment vehicles established by one or more of our affiliates. One or more of our affiliates may establish investment vehicles in the
future in which affiliates of the Acquiror may invest. In connection with the bankruptcy proceedings of iHeart Media, Inc. (
iHeart
), in which affiliates of the Acquiror have an interest, we and our affiliates have been engaged to act as a
C-3
The Board of Directors
Pandora Media, Inc.
September 23, 2018
special financial advisor to iHeart for which we and our affiliates may receive compensation. In the ordinary course of business, certain of our employees and affiliates may hold or trade, for their own accounts and the accounts of their investors, securities of the Company and the Acquiror and,
accordingly, may at any time hold a long or short position in such securities. The issuance of this opinion was approved by an authorized committee of LionTree Advisors LLC.
This opinion may not be disclosed, referred to, or communicated (in whole or in part) to any third party, nor shall any public reference to us be made, for any purpose whatsoever except with our prior written consent in each instance.
Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Exchange Ratio pursuant to the Agreement is fair, from a financial point of view, to the holders of Company Stock (other than the Excluded Parties).
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Very truly yours,
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LIONTREE ADVISORS LLC
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C-4
PANDORA MEDIA, INC.
ATTN: LEGAL DEPARTMENT
2100 FRANKLIN
STREET
SUITE 700
OAKLAND, CA 94612
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