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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section
13 or 15(d)
of the Securities
Exchange Act of 1934
Date of Report (date of earliest event reported): December 11, 2023
LIBERTY
MEDIA CORPORATION
(Exact name of registrant
as specified in its charter)
Delaware | |
001-35707 | |
37-1699499 |
(State or other jurisdiction of incorporation or organization) | |
(Commission File Number) | |
(I.R.S. Employer
Identification No.) |
12300
Liberty Blvd.
Englewood,
Colorado 80112
(Address of principal executive offices and zip
code)
Registrant's telephone number, including area
code: (720) 875-5400
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
Trading
Symbol |
Name
of each exchange on which
registered |
Series
A Liberty SiriusXM Common Stock |
LSXMA |
The
Nasdaq Stock Market LLC |
Series
B Liberty SiriusXM Common Stock |
LSXMB |
The
Nasdaq Stock Market LLC |
Series
C Liberty SiriusXM Common Stock |
LSXMK |
The
Nasdaq Stock Market LLC |
Series
A Liberty Formula One Common Stock |
FWONA |
The
Nasdaq Stock Market LLC |
Series
C Liberty Formula One Common Stock |
FWONK |
The
Nasdaq Stock Market LLC |
Series
A Liberty Live Common Stock |
LLYVA |
The
Nasdaq Stock Market LLC |
Series
C Liberty Live Common Stock |
LLYVK |
The
Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On December 11, 2023,
Liberty Media Corporation, a Delaware corporation (“Liberty Media”), entered into definitive agreements whereby, subject
to the terms thereof, Liberty Sirius XM Holdings Inc., a Delaware corporation and a wholly owned subsidiary of Liberty Media (“New
Sirius”), would split-off from Liberty Media, and Radio Merger Sub, LLC, a Delaware limited liability company and a wholly owned
subsidiary of New Sirius (“Merger Sub”), would combine with Sirius XM Holdings Inc., a Delaware corporation (“SiriusXM”),
to create a new public company, which will be renamed “SiriusXM Holdings Inc.”. The transactions would be effectuated by means
of a redemptive split-off of New Sirius (the “Split-Off), which will own all of the assets and liabilities attributed to
the Liberty SiriusXM Group, followed by New Sirius combining with SiriusXM through the merger of Merger Sub with SiriusXM, with SiriusXM
becoming a wholly owned subsidiary of New Sirius (the “Merger” and, together with the Split-Off, the “Transactions”).
To effect the Transactions,
on December 11, 2023, Liberty Media entered into (i) a Reorganization Agreement (the “Reorganization Agreement”)
with SiriusXM and New Sirius, and (ii) an Agreement and Plan of Merger (the “Merger Agreement”) with New Sirius,
SiriusXM and Merger Sub.
In connection with the Merger
Agreement and the Reorganization Agreement, on December 11, 2023, certain trusts related to Dr. John C. Malone (collectively,
the “Malone Stockholders”) entered into a voting agreement (the “Voting Agreement”) with Liberty
Media, SiriusXM and New Sirius, pursuant to which, among other things, the Malone Stockholders have agreed, subject to the terms of the
Voting Agreement, to vote their respective shares of Liberty Media’s Series A Liberty SiriusXM common stock, par value $0.01
per share (“LSXMA”), and Liberty Media’s Series B Liberty SiriusXM common stock, par value $0.01 per share
(“LSXMB”), in favor of the Split-Off.
The terms of the definitive
agreements entered into in connection with the Split-Off and the Merger are summarized below.
Reorganization Agreement
The Reorganization Agreement
governs, among other things, the terms and conditions of the Split-Off. The Split-Off would be accomplished by a redemption by Liberty
Media of each outstanding share of LSXMA, LSXMB and Liberty Media’s Series C Liberty SiriusXM common stock, par value $0.01
per share (“LSXMK” and, together with LSXMA and LSXMB, “Liberty SiriusXM Common Stock”), in exchange
for a number of shares of New Sirius common stock, par value $0.001 per share (“New Sirius Common Stock”), equal to
the Exchange Ratio (as defined in the Reorganization Agreement and further described below) (such redemption and exchange, the “Redemption”),
with cash paid in lieu of any fractional shares of New Sirius Common Stock. At the time of the Split-Off, New Sirius will hold all of
the businesses, assets and liabilities attributed to the Liberty SiriusXM Group, including (1) all of Liberty Media’s direct
and indirect interest in SiriusXM (which currently represents approximately 84% of the outstanding shares of common stock, par value $0.001
per share, of SiriusXM (“SiriusXM Common Stock”)), (2) corporate cash, (3) Liberty Media’s 3.75% Convertible
Senior Notes due 2028, (4) Liberty Media’s 2.75% Exchangeable Senior Debentures due 2049 and (5) a margin loan obligation
(the “Margin Loan”) incurred by Liberty Media’s wholly owned special purpose subsidiary, which is secured by
shares of SiriusXM Common Stock (collectively, the “New Sirius Assets and Liabilities”).
As a result of the Split-Off,
New Sirius would become an independent, publicly traded company with one class of common stock outstanding immediately following the Split-Off.
Equity
Awards. In connection with the Split-Off, (i) stock options relating to Liberty SiriusXM Common Stock that are outstanding
immediately prior to the Split-Off would accelerate and become fully vested and holders thereof will receive stock options relating to
New Sirius Common Stock, with the number of shares underlying such stock options and the exercise prices thereof adjusted based on the
Exchange Ratio, and (ii) restricted stock awards and restricted stock units relating to Liberty SiriusXM Common Stock will accelerate
and become fully vested prior to the Split-Off and will be treated as outstanding shares of Liberty SiriusXM Common Stock in the Redemption.
The New Sirius options will be governed by the terms of the Liberty SiriusXM Transitional Stock Adjustment Plan, which was approved in
connection with the Reorganization Agreement. Additionally, the Sirius XM 2024 Long-Term Incentive Plan, which was approved in connection
with the Transactions, will permit equity awards with respect to 350 million shares of New Sirius Common Stock to be granted to eligible
employees and other service providers of New Sirius following the Merger.
Conditions.
The closing of the Split-Off is conditioned on, among other things, the satisfaction (or, if permissible, waiver) of the conditions to
the Merger in the Merger Agreement (subject to certain limited exceptions).
Exchange
Ratio. Prior to the closing of the Split-Off and pursuant to the Reorganization Agreement, the Exchange Ratio will be calculated
based on (i) the number of shares of SiriusXM Common Stock held by Liberty Media immediately prior to the Split-Off reduced by a
net liabilities share adjustment, divided by (ii) the number of adjusted fully diluted shares of Liberty SiriusXM Common Stock
as of the date that is seven business days prior to the date of closing of the Redemption (the “Measurement Date”):
| ● | Net liabilities share adjustment will be calculated by dividing (x) the amount of net liabilities
attributed to the Liberty SiriusXM Group being assumed by New Sirius (excluding Liberty Media’s 3.75% Convertible Senior Notes due
2028, but including (by way of example) Liberty Media’s 2.75% Exchangeable Senior Debentures, the Margin Loan, Liberty Media’s
transaction expenses, certain litigation related liabilities, certain financing costs, and other corporate adjustments), by (y) a
negotiated reference price equal to $4.23, which was calculated based on the average of the daily volume-weighted average trading price
of shares of SiriusXM Common Stock for the twenty (20) consecutive trading days ending on September 25, 2023, the day before Liberty
Media publicly disclosed that it had communicated a proposal to the special committee of the board of directors of SiriusXM outlining
the terms of a proposed combination. |
| ● | Number of adjusted fully diluted shares of Liberty SiriusXM Common Stock will be calculated by
adding (1) the number of outstanding shares of Liberty SiriusXM Common Stock as of the Measurement Date, (2) the number
of shares of LSXMA underlying Liberty Media’s 3.75% Convertible Senior Notes due 2028, and (3) the number of shares of Liberty
SiriusXM Common Stock underlying certain then-outstanding equity awards, and subtracting therefrom the quotient obtained by dividing
(i) the aggregate exercise price of stock options relating to Liberty SiriusXM Common Stock granted prior to the date of the Reorganization
Agreement and outstanding as of the Measurement Date (subject to certain adjustments) by (ii) an average of the daily volume-weighted
average trading price of shares of LSXMK for ten (10) consecutive trading days ending on the Measurement Date. |
Ancillary
Agreements. At or prior to the closing of the Split-Off, Liberty Media and New Sirius will enter into other agreements, including,
but not limited to, a tax sharing agreement that will govern Liberty Media’s and New Sirius’s respective rights, responsibilities
and obligations with respect to certain taxes and tax benefits, the filing of tax returns, the control of audits and other tax matters
(the “Tax Sharing Agreement”), as well as certain other restructuring agreements related to the Split-Off. Further
information regarding these agreements will be included in New Sirius’ registration statement on Form S-4.
Cross-Indemnities.
From and after the Split-Off, New Sirius has agreed to indemnify Liberty Media, its subsidiaries (excluding New Sirius and its subsidiaries)
and their respective representatives from losses sustained in connection with, among others, the New Sirius Assets and Liabilities and
the conduct of the businesses of New Sirius. From and after the Split-Off, Liberty Media has agreed to indemnify New Sirius, its subsidiaries
and their respective representatives from losses sustained in connection with, among others, the assets, liabilities and businesses being
retained by Liberty Media in connection with the Split-Off.
The foregoing description
of the Reorganization Agreement does not purport to be complete and is qualified in its entirety by the full text of the Reorganization
Agreement, a copy of which is filed herewith as Exhibit 10.1 and the terms of which are incorporated by reference herein.
Agreement and Plan of Merger
Pursuant to the Merger Agreement,
the Merger would be consummated substantially concurrently with, but following, the Split-Off. Upon completion of the Split-Off and the
Merger, New Sirius would own and hold, directly or indirectly, the New Sirius Assets and Liabilities (other than liabilities satisfied
in connection with the Merger), and SiriusXM would become a wholly owned subsidiary of New Sirius.
Effect
on SiriusXM Common Stock. In the Merger Agreement, each share of SiriusXM Common Stock issued and outstanding immediately prior
to the effective time of the Merger (the “Effective Time”) (other than shares owned by New Sirius and its subsidiaries)
would be converted into the right to receive one share of New Sirius Common Stock (the “Merger Consideration”).
Effect
on SiriusXM Equity Awards. In connection with the Merger, (i) each stock option relating to SiriusXM Common Stock (a “SiriusXM
option”) that is outstanding and unexercised immediately prior to the Effective Time would be converted into a stock option
relating to New Sirius Common Stock, and such converted option will have the same terms (including the number of shares subject to and
the exercise price and vesting requirements) as those of the corresponding SiriusXM option immediately prior to the Effective Time, and
(ii) each restricted stock unit relating to SiriusXM Common Stock (a “SiriusXM RSU”) that is outstanding immediately
prior to the Effective Time would be converted into a restricted stock unit relating to New Sirius Common Stock, with such converted restricted
stock unit having the same terms (including the number of shares subject to and vesting requirements) as those of the corresponding SiriusXM
RSU immediately prior to the Effective Time.
Closing
Conditions. The closing of the Merger is subject to certain customary conditions, including: (i) the approval of the Redemption
by the holders of at least a majority of the aggregate voting power of the shares of LSXMA and shares of LSXMB, voting together as a separate
class, that are present (in person or by proxy) and entitled to vote at a meeting of the holders of LSXMA and LSXMB, or any adjournment
or postponement thereof, (ii) the completion of the Split-Off, (iii) any required approvals under applicable U.S. antitrust
laws, (iv) any required approvals under applicable U.S. communications laws, (v) the absence of any law or order prohibiting
the consummation of the Transactions, (vi) an effective registration statement on Form S-4 with respect to shares of New Sirius
Common Stock to be issued in the Transactions and (vii) Nasdaq listing approval of the shares of New Sirius Common Stock to be issued
in the Transactions.
Tax
Opinions. In addition, the obligation of SiriusXM and Liberty Media to complete the Merger is conditioned on each party’s
receipt of a customary tax opinion regarding the intended tax-free status of the Merger. Liberty Media’s obligation to complete
the Merger is further conditioned on Liberty Media’s receipt of customary tax opinions regarding the intended tax-free status of
the Contribution (as defined in the Reorganization Agreement) and the Redemption and the non-impact of the Contribution, Redemption and
Merger on Liberty Media’s prior split-off of its former wholly owned subsidiary, Atlanta Braves Holdings, Inc.
SiriusXM
Merger Approval. In connection with the execution of the Merger Agreement, Liberty Radio, LLC, a wholly owned subsidiary of
Liberty Media that holds a majority of the outstanding shares of SiriusXM Common Stock, in its capacity as a stockholder of SiriusXM,
has delivered to SiriusXM a written consent pursuant to Section 228 of the General Corporation Law of the State of Delaware, adopting
the Merger Agreement and approving the transactions contemplated by the Merger Agreement, including the Merger. As a result, no meeting
of the stockholders of SiriusXM is expected to be held in connection with the Transactions.
Representations,
Warranties and Covenants. The Merger Agreement includes certain customary representations, warranties and covenants of Liberty
Media, New Sirius, Merger Sub and SiriusXM. In addition, each of Liberty Media and SiriusXM has agreed to customary “no-shop”
restrictions prohibiting each party from soliciting alternative proposals from or participating in any discussions or negotiations with,
third parties regarding alternative acquisition proposals. The Board of Directors of Liberty Media (the “Liberty Board”)
has agreed to recommend that holders of shares of LSXMA and LSXMB vote in favor of the approval of the Redemption, subject to the right
to change its recommendation if the Liberty Board determines, in good faith, after consulting with outside legal counsel, that failure
to make such change would result in a violation of the Liberty Board’s fiduciary duties under applicable law. In the event that
the Liberty Board changes its recommendation, SiriusXM has the right to either (i) require Liberty Media to hold a stockholder vote
on the Redemption or (ii) terminate the Merger Agreement, subject to the payment by Liberty Media to SiriusXM of a termination fee
equal to $450 million.
Termination.
The Merger Agreement, in addition to certain customary termination provisions and the right of SiriusXM to terminate following a change
of recommendation of the Liberty Board as discussed above, provides that Liberty Media or SiriusXM may terminate the Merger Agreement,
subject to certain limitations, if (i) the Merger has not been consummated by November 15, 2024 or (ii) the approval of
the requisite holders of shares of LSXMA and LSXMB is not obtained at a meeting thereof called for the purpose of approving the Redemption.
Tax
Sharing. Pursuant to the Merger Agreement, at the Effective Time, all of Liberty Media’s and SiriusXM’s rights
and obligations under the existing tax sharing agreement between Liberty Media and SiriusXM will be terminated, and, from and after the
Effective Time, Liberty Media, New Sirius and SiriusXM’s rights and obligations with respect to taxes and tax matters will be governed
by the Tax Sharing Agreement.
New
Sirius Management. At the Effective Time, the board of directors of New Sirius (the “New Sirius Board”)
will consist of a total of nine directors and be classified and divided into three classes, designated Class I, Class II and
Class III, with each class initially consisting of three directors. Liberty Media will designate five individuals (the “Liberty
Media Designees”), including Gregory B. Maffei and four directors who will be determined at a later date (subject to three of
such four director designees satisfying certain independence requirements). SiriusXM will designate four individuals (the “SiriusXM
Designees”), including Jennifer Witz and three directors who will be determined at a later date (subject to such three director
designees satisfying certain independence requirements). In connection with the foregoing appointments, (i) three of the SiriusXM
Designees will be designated as the initial Class I directors for a term expiring at the first annual meeting of stockholders of
New Sirius held after the Effective Time, (ii) the remaining SiriusXM Designee and two Liberty Media Designees will be designated
as the initial Class II directors for a term expiring at the second annual meeting of stockholders of New Sirius held after the Effective
Time, and (iii) Gregory B. Maffei and the two remaining Liberty Media Designees will be designated as the initial Class III
directors for a term expiring at the third annual meeting of stockholders of New Sirius held after the Effective Time. Following the third
annual meeting held after the Effective Time, the New Sirius Board will cease to be classified, and all directors thereafter elected will
serve for a term expiring at the subsequent annual meeting. The officers of SiriusXM at the Effective Time will serve in the same capacity
at New Sirius.
Pro
Forma Ownership. As a result of the Transactions, based on an estimated number of 3,838.9 million shares of SiriusXM Common
Stock outstanding and 326.6 million shares of Liberty SiriusXM Common Stock outstanding, Liberty Media estimates that the former holders
of Liberty SiriusXM Common Stock will own approximately 81% of New Sirius, with the former holders of SiriusXM Common Stock, other than
Liberty Media and its subsidiaries, owning the remaining approximately 19% of New Sirius.
Approval
and Recommendation. The Liberty Board has approved the Merger Agreement, the Reorganization Agreement and the transactions
contemplated thereby and recommended that the holders of shares of LSXMA and LSXMB approve the Redemption and the transactions contemplated
thereby, subject to certain exceptions set forth in the Merger Agreement.
The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its entirety by the full text of the Merger Agreement, a copy
of which is filed herewith as Exhibit 2.1 and the terms of which are incorporated by reference herein.
Voting Agreement
The Voting Agreement provides
that, among other things, the Malone Stockholders have agreed to vote their respective shares of LSXMA and LSXMB, representing approximately
48% of the total voting power of the issued and outstanding shares of LSXMA and LSXMB in the aggregate, in favor of the Split-Off and
the transactions contemplated thereby, except that they will be obligated to vote shares representing approximately 33.37% in favor of
thereof in the event that the Liberty Board changes its recommendation and SiriusXM elects not to terminate the Merger Agreement.
In addition, subject to certain
conditions, the Malone Stockholders have agreed to vote their respective
shares of LSXMA and LSXMB subject to the Voting Agreement against any SplitCo Takeover Proposal (as defined in the Merger Agreement) and
certain other matters. The Voting Agreement will automatically terminate upon, among other events, the termination of the Merger Agreement
or the Reorganization Agreement in accordance with their respective terms. Under the Voting Agreement, each of SiriusXM and New Sirius,
jointly and severally, has agreed to indemnify each Malone Stockholder for certain losses incurred in connection with or arising out of
the Voting Agreement or the performance of such Malone Stockholder’s obligations thereunder, including, subject to certain conditions,
reasonable fees and expenses of such Malone Stockholder incurred in the defense of any such claim brought by a third party. In addition,
SiriusXM and New Sirius have agreed to pay up to $150,000 in the aggregate of reasonable out-of-pocket costs and expenses incurred by
the Malone Stockholders in connection with the preparation, negotiation, execution and delivery of the Voting Agreement.
The foregoing description
of the Voting Agreement does not purport to be complete and is qualified in its entirety by the full text of the Voting Agreement, a copy
of which is filed herewith as Exhibit 10.2 and the terms of which are incorporated by reference herein.
The Reorganization Agreement,
the Merger Agreement, the Voting Agreement and the above descriptions have been included to provide investors and security holders with
information regarding the terms of the Reorganization Agreement, the Merger Agreement, the Voting Agreement, the Split-Off, the Merger
and the other transactions contemplated by such agreements. It is not intended to provide any other factual information about Liberty
Media, SiriusXM, New Sirius, Merger Sub or their respective subsidiaries or affiliates, or equityholders. The representations, warranties
and covenants set forth in the Reorganization Agreement, the Merger Agreement and the Voting Agreement were made only for the purposes
of that agreement and as of specific dates, were made solely for the benefit of the parties to the Reorganization Agreement, the Merger
Agreement and the Voting Agreement (and the express third party beneficiaries described therein), as applicable, and may be subject to
limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating
contractual risk between the parties to the Reorganization Agreement, Merger Agreement and Voting Agreement instead of establishing these
matters as facts, as well as by information contained in each party’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q,
and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors
should be aware that the representations, warranties and covenants or any description thereof may not reflect the actual state of facts
or condition of Liberty Media, SiriusXM, New Sirius, Merger Sub, or any of their respective subsidiaries, affiliates, businesses, or equityholders.
Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the
Reorganization Agreement, the Merger Agreement and Voting Agreement, which subsequent information may or may not be fully reflected in
public disclosures by Liberty Media or SiriusXM. Accordingly, representations and warranties in the Reorganization Agreement, the Merger
Agreement and Voting Agreement should not be relied on as characterization of the actual state of facts about Liberty Media, SiriusXM,
New Sirius or Merger Sub.
Item 5.02 Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Liberty Media entered into
a letter agreement with its Chief Executive Officer (“Mr. Maffei”) pursuant to which, subject to the terms thereof,
Mr. Maffei will receive a lump sum cash payment, in consideration for Mr. Maffei’s waiver of any right to resign from
his employment with Liberty Media for “good reason” (as such term is defined in his employment agreement by and between Liberty
Media and himself) as a result of the Transactions.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. |
|
Description |
2.1† |
|
Agreement and Plan of Merger, dated as of December 11, 2023, by and among Liberty Media Corporation, Sirius XM Holdings Inc., Liberty Sirius XM Holdings Inc. and Radio Merger Sub, LLC |
10.1† |
|
Reorganization Agreement, dated as of December 11, 2023, by and among Liberty Media Corporation, Sirius XM Holdings Inc. and Liberty Sirius XM Holdings Inc. |
10.2 |
|
Voting Agreement, dated as of December 11, 2023, by and among Liberty Media Corporation, Sirius XM Holdings Inc., Liberty Sirius XM Holdings Inc. and each of The John C. Malone 1995 Revocable Trust, The Leslie A. Malone 1995 Revocable Trust, The Malone Family Land Preservation Foundation and John C. Malone June 2003 Charitable Remainder Unitrust |
104 |
|
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
† Schedules have been omitted pursuant
to Item 601(b)(2) of Regulation S-K. Liberty Media hereby undertakes to furnish supplemental copies of any of the omitted schedules
upon request by the Securities and Exchange Commission (“SEC”); provided, however, that Liberty Media may request confidential
treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so furnished.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K
includes certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including certain
statements relating to the completion of the proposed transaction, proposed trading of New Sirius Common Stock and other matters related
to such proposed transaction. All statements other than statements of historical fact are “forward-looking statements” for
purposes of federal and state securities laws. These forward-looking statements generally can be identified by phrases such as “possible,”
“potential,” “intends” or “expects” or other words or phrases of similar import or future or conditional
verbs such as “will,” “may,” “might,” “should,” “would,” “could,”
or similar variations. These forward-looking statements involve many risks and uncertainties that could cause actual results and the timing
of events to differ materially from those expressed or implied by such statements, including, but not limited to: historical financial
information may not be representative of future results; there may be significant transaction costs and integration costs in connection
with the proposed transaction (including significant tax liability); the parties may not realize the potential benefits of the proposed
transaction in the near term or at all; an active trading market for New Sirius Common Stock may not develop; the uncertainty of the market
value of the New Sirius Common Stock; the satisfaction of all conditions to the proposed transaction; the proposed transaction may not
be consummated; Liberty Media and SiriusXM may need to use resources that are needed in other parts of its business to do so; there may
be liabilities that are not known, probable or estimable at this time; the proposed transaction may result in the diversion of management’s
time and attention to issues relating to the proposed transaction and integration; unfavorable outcome of legal proceedings that may be
instituted against Liberty Media and/or SiriusXM following the announcement of the proposed transaction; risks related to disruption of
management time from ongoing business operations due to the proposed transaction; risks inherent to the business may result in additional
strategic and operational risks, which may impact Liberty Media, New Sirius and/or SiriusXM’s risk profiles, which each company
may not be able to mitigate effectively; and other risks and uncertainties detailed in periodic reports that Liberty Media and SiriusXM
file with the SEC. These forward-looking statements speak only as of the date of this Current Report on Form 8-K, and Liberty Media
and SiriusXM expressly disclaim any obligation or undertaking to disseminate any updates or revisions to any forward-looking statement
contained herein to reflect any change in Liberty Media’s or SiriusXM’s expectations with regard thereto or any change in
events, conditions or circumstances on which any such statement is based. Please refer to the publicly filed documents of Liberty Media
and SiriusXM, including their most recent Forms 10-K and 10-Q, as such risk factors may be amended, supplemented or superseded from time
to time by other reports Liberty Media or SiriusXM subsequently file with the SEC, for additional information about Liberty Media and
SiriusXM and about the risks and uncertainties related to Liberty Media’s and SiriusXM’s businesses which may affect the statements
made in this Current Report on Form 8-K.
Additional Information
Nothing in this Current Report
on Form 8-K shall constitute a solicitation to buy or an offer to sell shares of common stock of Liberty Media, SiriusXM or New Sirius.
The proposed offer and issuance of shares of New Sirius Common Stock in the proposed transactions will be made only pursuant to an effective
registration statement on Form S-4, including a proxy statement of Liberty Media, prospectus of New Sirius, and information statement
of SiriusXM. LIBERTY MEDIA AND SIRIUSXM STOCKHOLDERS AND OTHER INVESTORS ARE URGED TO READ THE REGISTRATION STATEMENT WHEN IT IS AVAILABLE,
TOGETHER WITH ALL RELEVANT SEC FILINGS REGARDING THE PROPOSED TRANSACTION, AND ANY OTHER RELEVANT DOCUMENTS FILED AS EXHIBITS THEREWITH,
AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
After the registration statement is declared effective, the proxy statement/prospectus/information statement and other relevant materials
for the proposed transaction will be mailed to all Liberty Media and SiriusXM stockholders. Copies of these SEC filings will be available,
free of charge, at the SEC’s website (http://www.sec.gov). Copies of the filings together with the materials incorporated by reference
therein will also be available, without charge, by directing a request to Liberty Media Corporation, 12300 Liberty Boulevard, Englewood,
Colorado 80112, Attention: Investor Relations, Telephone: (877) 772-1518 or Sirius XM Holdings Inc., 1221 Avenue of the Americas, 35th
Floor, New York, New York 10021, Attention: Investor Relations, (212) 584-5100.
Participants in a Solicitation
Liberty Media anticipates
that the following individuals will be participants (the “Liberty Media Participants”) in the solicitation of proxies
from holders of Liberty Media’s LSXMA and LSXMB common stock in connection with the proposed transaction: John C. Malone, Chairman
of the Liberty Board, Robert R. Bennett, Derek Chang, Brian M. Deevy, M. Ian G. Gilchrist, Evan D. Malone, Larry E. Romrell, and Andrea
L. Wong, all of whom are members of the Liberty Board, Gregory B. Maffei, Liberty Media’s President, Chief Executive Officer and
Director, and Brian J. Wendling, Liberty Media’s Chief Accounting Officer and Principal Financial Officer. Information regarding
the Liberty Media Participants, including a description of their direct or indirect interests, by security holdings or otherwise, can
be found under the caption “Security Ownership of Certain Beneficial Owners and Management—Pro Forma Security Ownership of
Management of Liberty Media Following the Reclassification” contained in Liberty Media’s registration statement on Form S-4
(the “S-4”), which was filed with the SEC on June 8, 2023 and is available at: https://www.sec.gov/Archives/edgar/data/1560385/000110465923069028/tm2232384-33_s4a.htm.
To the extent that certain Liberty Media Participants or their affiliates have acquired or disposed of security holdings since the “as
of” date disclosed in the S-4, such transactions have been or will be reflected on Statements of Change in Ownership on Form 4
or amendments to beneficial ownership reports on Schedules 13D filed with the SEC, which are available at: https://www.sec.gov/edgar/browse/?CIK=1560385&owner=exclude.
Additional information regarding the Liberty Media Participants in the proxy solicitation and a description of their interests will be
contained in the proxy statement for Liberty Media’s special meeting of stockholders and other relevant materials to be filed with
the SEC in respect of the contemplated transactions when they become available. These documents can be obtained free of charge from the
sources indicated above.
SiriusXM anticipates that
the following individuals will be participants (the “SiriusXM Participants”) in the solicitation of proxies from holders
of Liberty Media’s LSXMA and LSXMB common stock in connection with the proposed transaction Gregory B. Maffei, Chairman of the SiriusXM
Board of Directors, David A. Blau, Eddy W. Hartenstein, Robin P. Hickenlooper, James P. Holden, Evan D. Malone, James E. Meyer, Jonelle
Procope, Michael Rapino, Kristina M. Salen, Carl E. Vogel and David Zaslav, all of whom are members of SiriusXM’s Board of Directors,
Jennifer Witz, SiriusXM’s Chief Executive Officer and Director and Thomas D. Barry, SiriusXM’s Chief Financial Officer. Information
regarding the SiriusXM Participants, including a description of their direct or indirect interests, by security holdings or otherwise,
can be found under the caption “Stock Ownership” contained in SiriusXM’s definitive proxy statement for its 2023 annual
meeting of stockholders (the “2023 Proxy Statement”), which was filed with the SEC on April 21, 2023 and is available
at: https://www.sec.gov/ix?doc=/Archives/edgar/data/908937/000093041323001281/c105679_def14a-ixbrl.htm. To the extent that certain SiriusXM
Participants or their affiliates have acquired or disposed of security holdings since the “as of” date disclosed in the 2023
Proxy Statement, such transactions have been or will be reflected on Statements of Change in Ownership on Form 4, which are available
at: https://www.sec.gov/edgar/browse/?CIK=908937&owner=exclude. Additional information regarding certain of the SiriusXM Participants
in the proxy solicitation and a description of their interests will be contained in the information statement and other relevant materials
to be filed with the SEC in respect of the contemplated transactions when they become available. These documents can be obtained free
of charge from the sources indicated above.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
Date:
December 12, 2023
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LIBERTY MEDIA CORPORATION |
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By: |
/s/ Brittany A. Uthoff |
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Name: Brittany A. Uthoff |
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Title: Vice President and Assistant Secretary |
EXHIBIT 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
Dated as of December 11, 2023
by and among
LIBERTY MEDIA CORPORATION,
LIBERTY SIRIUS XM HOLDINGS INC.,
RADIO MERGER SUB, LLC
and
SIRIUS XM HOLDINGS INC.
ARTICLE
I. The Merger |
| 3 |
Section
1.1 |
The
Merger |
| 3 |
Section
1.2 |
Closing |
| 3 |
Section
1.3 |
Effective
Time of the Merger |
| 3 |
Section
1.4 |
Effects
of the Merger |
| 3 |
Section
1.5 |
Certificate
of Incorporation and Bylaws of the Surviving Corporation and SplitCo |
| 3 |
Section
1.6 |
Directors
and Officers of SplitCo and Surviving Corporation |
| 4 |
ARTICLE
II. Effect of the Merger on the Capital Stock of the Constituent Corporations; Exchange of Certificates; Stock Options |
| 5 |
Section
2.1 |
Effect
on Capital Stock |
| 5 |
Section
2.2 |
Exchange
of Certificates and Book-Entry Shares |
| 6 |
Section
2.3 |
SiriusXM
Equity Awards |
| 9 |
Section
2.4 |
Actions
by SplitCo |
| 10 |
ARTICLE
III. Representations and Warranties of Liberty |
| 11 |
Section
3.1 |
Organization,
Standing and Corporate Power |
| 11 |
Section
3.2 |
Capitalization |
| 12 |
Section
3.3 |
Authority;
Noncontravention; Voting Requirements |
| 12 |
Section
3.4 |
Liberty
SEC Documents |
| 15 |
Section
3.5 |
Information
Supplied |
| 16 |
Section
3.6 |
Brokers
and Other Advisors |
| 16 |
Section
3.7 |
Liberty
Owned SiriusXM Shares |
| 17 |
Section
3.8 |
Solvency |
| 17 |
Section
3.9 |
State
Takeover Statutes |
| 17 |
Section
3.10 |
Tax
Matters |
| 18 |
Section
3.11 |
Absence
of Operations |
| 19 |
Section
3.12 |
Investigation;
Reliance |
| 19 |
ARTICLE
IV. Representations and Warranties of SplitCo and Merger Sub |
| 20 |
Section
4.1 |
Organization,
Standing and Power |
| 20 |
Section
4.2 |
Capitalization |
| 21 |
Section
4.3 |
Authority;
Noncontravention; Voting Requirements |
| 22 |
Section
4.4 |
Absence
of Operations |
| 24 |
Section
4.5 |
Investigation;
Reliance |
| 24 |
ARTICLE
V. Representations and Warranties of SiriusXM |
| 24 |
Section
5.1 |
Organization,
Standing and Corporate Power |
| 25 |
Section
5.2 |
Capitalization |
| 25 |
Section
5.3 |
Authority;
Noncontravention; Voting Requirements |
| 26 |
Section
5.4 |
SiriusXM
SEC Documents |
| 28 |
Section
5.5 |
Information
Supplied |
| 29 |
Section
5.6 |
Brokers
and Other Advisors |
| 29 |
Section
5.7 |
State
Takeover Statutes |
| 30 |
Section
5.8 |
Tax
Matters |
| 30 |
Section
5.9 |
Opinion
of Financial Advisor |
| 31 |
Section
5.10 |
No
Liberty Interest |
| 31 |
Section
5.11 |
Investigation;
Reliance |
| 32 |
Section
5.12 |
Financing |
| 32 |
ARTICLE
VI. Additional Covenants and Agreements |
| 33 |
Section
6.1 |
Preparation
of the Form S-4 and Prospectus / Proxy Statement |
| 33 |
Section
6.2 |
Conduct
of Business by SplitCo and Liberty Pending the Transactions |
| 35 |
Section
6.3 |
Conduct
of Business by SiriusXM Pending the Transactions |
| 40 |
Section
6.4 |
No
Solicitation by Liberty and SplitCo; Etc. |
| 41 |
Section
6.5 |
No
Solicitation by SiriusXM; Etc. |
| 43 |
Section
6.6 |
Reasonable
Best Efforts |
| 45 |
Section
6.7 |
Public
Announcements |
| 48 |
Section
6.8 |
Access
to Information; Confidentiality |
| 49 |
Section
6.9 |
Notification
of Certain Matters |
| 50 |
Section
6.10 |
Indemnification;
Insurance |
| 50 |
Section
6.11 |
Litigation |
| 53 |
Section
6.12 |
Fees
and Expenses |
| 54 |
Section
6.13 |
Tax
Matters |
| 54 |
Section
6.14 |
Rule
16b-3 |
| 55 |
Section
6.15 |
Nasdaq
Listing |
| 56 |
Section
6.16 |
SiriusXM
Common Stock Delisting |
| 56 |
Section
6.17 |
No
Acquisition of a Liberty Interest by SiriusXM |
| 56 |
Section
6.18 |
No
Acquisition of a SiriusXM Interest by Liberty |
| 56 |
Section
6.19 |
Intercompany
Arrangements; Intercompany Payables |
| 57 |
Section
6.20 |
Liberty
Undertaking; Effects of Split-Off |
| 57 |
Section
6.21 |
State
Takeover Statutes |
| 58 |
Section
6.22 |
3.75%
Convertible Senior Notes and 2.75% Exchangeable Senior Debentures |
| 59 |
Section
6.23 |
Financing |
| 60 |
Section
6.24 |
Other
Debt Items |
| 62 |
ARTICLE
VII. Conditions Precedent |
| 62 |
Section
7.1 |
Conditions
to Each Party’s Obligation to Effect the Merger |
| 62 |
Section
7.2 |
Conditions
to Obligations of SiriusXM |
| 63 |
Section
7.3 |
Conditions
to Obligation of Liberty, SplitCo and Merger Sub |
| 64 |
Section
7.4 |
Frustration
of Closing Conditions |
| 65 |
ARTICLE
VIII. Survival |
| 65 |
Section
8.1 |
Survival |
| 65 |
ARTICLE
IX. Termination |
| 65 |
Section
9.1 |
Termination |
| 65 |
Section
9.2 |
Effect
of Termination |
| 67 |
Section
9.3 |
Termination
Fee and Expenses |
| 67 |
ARTICLE
X. Miscellaneous |
| 68 |
Section
10.1 |
Amendment
or Supplement |
| 68 |
Section
10.2 |
Extension
of Time, Waiver, Etc. |
| 68 |
Section
10.3 |
Assignment |
| 68 |
Section
10.4 |
Counterparts |
| 69 |
Section
10.5 |
Entire
Agreement; No Third-Party Beneficiaries |
| 69 |
Section
10.6 |
Governing
Law; Jurisdiction; Waiver of Jury Trial |
| 69 |
Section
10.7 |
Specific
Enforcement |
| 70 |
Section
10.8 |
Notices |
| 70 |
Section
10.9 |
Severability |
| 71 |
Section
10.10 |
Definitions |
| 72 |
Section
10.11 |
Interpretation |
| 87 |
Section
10.12 |
Debt
Financing Sources |
| 88 |
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF
MERGER, dated as of December 11, 2023 (this “Agreement”), is by and among LIBERTY MEDIA CORPORATION, a Delaware
corporation (“Liberty”), LIBERTY SIRIUS XM HOLDINGS INC., a Delaware corporation and a wholly owned Subsidiary of
Liberty (“SplitCo”), RADIO MERGER SUB, LLC, a Delaware limited liability company and a wholly owned Subsidiary of
SplitCo (“Merger Sub”), and SIRIUS XM HOLDINGS INC., a Delaware corporation (“SiriusXM”). Certain
terms used in this Agreement are used as defined in Section 10.10.
WHEREAS, in accordance with
and pursuant to the Liberty Charter Documents (as defined below), the businesses, assets and liabilities of Liberty are currently attributed
to three tracking stock groups: the Liberty SiriusXM Group (“Liberty SiriusXM”), the Formula One Group and the Liberty
Live Group;
WHEREAS, subject to the receipt
of the Liberty Stockholder Approval, prior to the Split-Off Effective Time, Liberty will, pursuant to the Liberty Charter Documents and
the Reorganization Agreement, by and between SplitCo, Liberty and SiriusXM and dated as of the date hereof (the “Reorganization
Agreement”), complete the Restructuring and, at the Split-Off Effective Time, pursuant to the Liberty Charter Documents and
the Reorganization Agreement, complete the Redemption (collectively, the “Split-Off”);
WHEREAS, in accordance with
the terms and conditions hereof, following the consummation of the Split-Off, the parties intend to effectuate the Merger, by virtue
of which Merger Sub will be merged with and into SiriusXM, with SiriusXM surviving the Merger as the surviving corporation and a wholly
owned subsidiary of SplitCo;
WHEREAS, the Board of Directors
of Liberty acting by unanimous written consent has (a) approved and declared advisable and in the best interests of Liberty and
its stockholders (including the holders of Liberty SiriusXM Common Stock): (i) the Split-Off and the transactions contemplated thereby
(including the transactions contemplated by the Reorganization Agreement) and (ii) this Agreement, each of the other Transaction
Agreements to which Liberty is a party, and the transactions contemplated hereby and thereby (including the Merger and the other Transactions)
and (b) resolved to recommend that holders of Series A Liberty SiriusXM Common Stock and Series B Liberty SiriusXM Common
Stock, voting together as a separate class, approve the Split-Off;
WHEREAS, the Special Committee
has approved and declared advisable and in the best interests of SiriusXM and its stockholders (other than Liberty, SplitCo or any of
their respective Affiliates), and has recommended that the Board of Directors of SiriusXM approve, this Agreement, each of the other
Transaction Agreements to which SiriusXM is a party, and the transactions contemplated hereby and thereby (including the Merger and the
other Transactions);
WHEREAS, the Board of Directors
of SiriusXM, following receipt of the recommendation of the Special Committee, has unanimously (a) approved and declared advisable
and in the best interests of SiriusXM and its stockholders, this Agreement, each of the other Transaction Agreements to which SiriusXM
is a party, and the transactions contemplated hereby and thereby (including the Merger and the other Transactions) and (b) resolved
to recommend that the stockholders of SiriusXM adopt this Agreement;
WHEREAS, the Board of Directors
of SplitCo, acting by unanimous written consent, has approved and declared advisable and in the best interests of SplitCo and its sole
stockholder this Agreement, each of the other Transaction Agreements to which SplitCo is a party, and the transactions contemplated hereby
and thereby (including the Merger and the other Transactions);
WHEREAS, Liberty Radio, LLC,
a Delaware limited liability company and a wholly owned subsidiary of Liberty (“Liberty Radio”), in its capacity as
a stockholder of SiriusXM that holds a majority of the outstanding SiriusXM Common Stock, has delivered to SiriusXM a written consent
pursuant to Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”), adopting this Agreement
(as the terms and conditions hereof may be amended, modified or waived) and approving the transactions contemplated hereby (including
the Merger), which consent is to become effective immediately following the execution and delivery of this Agreement by all parties hereto
(the “SiriusXM Stockholder Consent”);
WHEREAS, Liberty, in its capacity
as the sole stockholder of SplitCo, has delivered to SplitCo a written consent pursuant to Section 228 of the DGCL adopting the
SplitCo A&R Charter (as defined below), which consent is to become effective immediately following the execution and delivery of
this Agreement by all parties hereto (the “SplitCo Stockholder Consent”) and whereas the Board of Directors of SplitCo
has executed a written consent adopting the SplitCo A&R Charter and the SplitCo A&R Bylaws (as defined below) as of the Split-Off
Effective Time;
WHEREAS, SplitCo, in its capacity
as the sole and managing member of Merger Sub, has delivered to Merger Sub a written consent pursuant to Section 18-302(d) of
the Delaware Limited Liability Company Act (the “DLLCA”) and the limited liability agreement of Merger Sub, (i) approving
this Agreement (as the terms and conditions hereof may be amended, modified or waived) and (ii) approving each of the other Transaction
Agreements to which Merger Sub is a party, and the transactions contemplated hereby and thereby (including the Merger and the Transactions)
(the “Merger Sub Member Consent”);
WHEREAS, concurrently with
the execution of this Agreement and as a condition and material inducement to SiriusXM entering into this Agreement, each of The John
C. Malone 1995 Revocable Trust, The Leslie A. Malone 1995 Revocable Trust, The Malone Family Land Preservation Foundation, and The John
C. Malone June 2003 Charitable Remainder Unitrust (collectively, the “Significant Stockholders”), as a Beneficial
Owner of shares of Liberty SiriusXM Common Stock, is entering into a Voting Agreement with Liberty, SplitCo and SiriusXM agreeing to
vote certain shares of Liberty SiriusXM Common Stock Beneficially Owned by such Significant Stockholders in favor of approval of the
Split-Off and the transactions contemplated thereby, subject to the terms and conditions set forth therein (the “Voting Agreement”);
and
WHEREAS, for U.S. federal income
tax purposes, it is intended that the exchanges of SiriusXM Common Stock for the Merger Consideration pursuant to the Merger, taken together
with the Contribution, will qualify as exchanges described in Section 351 of the Code;
NOW, THEREFORE, in consideration
of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, Liberty,
SplitCo, Merger Sub and SiriusXM hereby agree as set forth herein.
ARTICLE I.
The Merger
Section 1.1 The
Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL and the DLLCA,
at the Merger Effective Time, Merger Sub shall be merged with and into SiriusXM (the “Merger”), and following the
Merger the separate existence of Merger Sub shall thereupon cease, and SiriusXM shall be the surviving corporation in the Merger (the
“Surviving Corporation”).
Section 1.2 Closing.
Subject to the completion of the Split-Off, the closing of the Merger (the “Closing”) shall take place substantially
concurrently with (but following) the Split-Off Effective Time on the date that the Split-Off is consummated (the “Closing Date”)
at the offices of O’Melveny & Myers LLP, Two Embarcadero Center, San Francisco, CA 94111, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 1.3 Effective
Time of the Merger. Subject to the provisions of this Agreement, as soon as practicable (and in all events following the Split-Off
Effective Time) on the Closing Date, SiriusXM shall file with the Secretary of State of the State of Delaware a certificate of merger,
in the form required by and executed in accordance with the relevant provisions of the DGCL and the DLLCA (the “Certificate
of Merger”) and shall make all other filings or recordings required under the DGCL and the DLLCA in connection with the Merger.
The Merger shall become effective upon the filing of the Certificate of Merger or at such later time as is agreed to by the parties hereto
and specified in the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as the “Merger
Effective Time”).
Section 1.4 Effects
of the Merger. The Merger shall have the effects set forth herein and in the DGCL and the DLLCA. Without limiting the generality
of the foregoing, and subject thereto, at the Merger Effective Time, all of the properties, rights, privileges, powers and franchises
of Merger Sub and SiriusXM shall vest in the Surviving Corporation, and all debts, liabilities and duties of Merger Sub and SiriusXM
shall become the debts, liabilities and duties of the Surviving Corporation.
Section 1.5 Certificate
of Incorporation and Bylaws of the Surviving Corporation and SplitCo.
(a) Prior
to the Split-Off Effective Time, SplitCo shall cause the certificate of incorporation of SplitCo (the “SplitCo Charter”)
and bylaws of SplitCo (the “SplitCo Bylaws”) to be amended and restated in their entirety in the forms set forth in
Exhibit A-1 (the “SplitCo A&R Charter”) and Exhibit A-2 (the “SplitCo A&R
Bylaws” and, together with the SplitCo A&R Charter, the “SplitCo Public Charter Documents”).
(b) At
the Merger Effective Time, (a) the amended and restated certificate of incorporation of SiriusXM in effect immediately prior to
the Merger Effective Time and (b) the amended and restated bylaws of SiriusXM in effect immediately prior to the Merger Effective
Time, shall be amended and restated to read in their entirety in the forms set forth in Exhibit B-1 and Exhibit B-2,
respectively, until thereafter amended as provided therein or by applicable Law.
Section 1.6 Directors
and Officers of SplitCo and Surviving Corporation.
(a) The
parties hereto shall take all requisite action so that, from and after the Merger Effective Time, (i) the total number of directors
of SplitCo shall initially be nine, and (ii) the directors of SplitCo from and after the Merger shall be the individuals determined
in accordance with this Section 1.6(a), each to hold office in accordance with the SplitCo Public Charter Documents (as amended
from time to time) until each such director’s successor is duly elected and qualified, or until their earlier death, resignation
or removal. The parties hereto shall take all requisite action so that, at the Merger Effective Time and until the third annual meeting
of stockholders of SplitCo held after the Merger Effective Time, pursuant to the SplitCo A&R Charter, the board of directors of SplitCo
shall be classified and divided into three classes, designated Class I, Class II and Class III, with each class initially
consisting of three directors. Liberty has designated one individual set forth on Section 1.6(a)(i) of the Liberty Disclosure
Schedule and shall, in consultation with SiriusXM’s management, designate an additional four individuals (who shall comply
with the requirements set forth in Section 1.6(a)(ii) of the Liberty Disclosure Schedule) to initially serve as directors
on the board of directors of SplitCo from and after the Merger Effective Time (the “Liberty Designees”), and SiriusXM
has designated one individual set forth on Section 1.6(a)(i) of the SiriusXM Disclosure Schedule and shall designate
an additional three individuals (who shall comply with the requirements set forth in Section 1.6(a)(ii) of the SiriusXM
Disclosure Schedule) to initially serve as directors on the board of directors of SplitCo from and after the Merger Effective Time
(the “SiriusXM Designees”), it being understood that each such individual designated by SiriusXM or Liberty pursuant
to this sentence shall hold office in accordance with the SplitCo Public Charter Documents (as amended from time to time) until each
such director’s successor is duly elected and qualified, or until their earlier death, resignation or removal. The parties hereto
shall take all requisite action so that at the Merger Effective Time: (i) three SiriusXM Designees shall be designated as, and shall
serve as, the initial Class I directors for a term expiring at the first annual meeting of stockholders of SplitCo held after the
Merger Effective Time in accordance with the SplitCo A&R Charter, (ii) the remaining SiriusXM Designee and two Liberty Designees
shall be designated as, and shall serve as, the initial Class II directors for a term expiring at the second annual meeting of stockholders
of SplitCo held after the Merger Effective Time in accordance with the SplitCo A&R Charter and (iii) the remaining three Liberty
Designees (including the director set forth on Section 1.6(a)(i) of the Liberty Disclosure Schedule and two directors
who would qualify as “independent” directors under the Nasdaq listing rules with respect to each of SplitCo and Liberty)
shall be designated as, and shall serve as, the initial Class III directors for a term expiring at the third annual meeting of stockholders
of SplitCo held after the Merger Effective Time in accordance with the SplitCo A&R Charter. The parties hereto shall take all requisite
action so that, from and after the Merger Effective Time, the individuals set forth in Section 1.6(a)(iii) of the SiriusXM
Disclosure Schedule (as defined below) shall be, from and after the Merger Effective Time, the directors of the Surviving Corporation
following the Merger, each to hold office in accordance with the certificate of incorporation and bylaws of Surviving Corporation (as
amended from time to time) until each such director’s successor is duly elected and qualified, or until their earlier death, resignation
or removal.
(b) The
parties hereto shall take all requisite action so that, from and after the Merger Effective Time, (i) the officers of SiriusXM immediately
prior to the Merger Effective Time shall be, from and after the Merger Effective Time, the officers of SplitCo following the Merger,
each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation (as amended from time
to time) until their respective successors are duly appointed and qualified or until their earlier death, resignation or removal and
(ii) the officers of SiriusXM immediately prior to the Merger Effective Time shall be, from and after the Merger Effective Time,
the officers of the Surviving Corporation following the Merger, each to hold office in accordance with the certificate of incorporation
and bylaws of Surviving Corporation (as amended from time to time) until their respective successors are duly appointed and qualified
or until their earlier death, resignation or removal.
ARTICLE II.
Effect of the Merger on the Capital Stock of the
Constituent Corporations; Exchange of Certificates; Stock Options
Section 2.1 Effect
on Capital Stock.
(a) At
the Merger Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of capital stock or
limited liability company interest of any party:
(i) Conversion
of SiriusXM Common Stock. Subject to this Section 2.1(a) and Section 2.1(b), each share of common stock of SiriusXM,
par value $0.001 per share (the “SiriusXM Common Stock”), issued and outstanding immediately prior to the Merger Effective
Time, other than (A) the Liberty Owned SiriusXM Shares and (B) the shares of SiriusXM Common Stock to be canceled pursuant
to Section 2.1(a)(ii), shall be automatically converted into and become the right to receive one (the “SiriusXM Exchange
Ratio”) validly issued, fully paid and nonassessable share of SplitCo Common Stock (the “Merger Consideration”).
At the Merger Effective Time, except as otherwise provided herein with respect to Liberty Owned SiriusXM Shares and shares cancelled
in accordance with Section 2.1(a)(ii), all shares of SiriusXM Common Stock outstanding immediately prior to the Merger Effective
Time shall be canceled upon their conversion and shall cease to exist and each holder of a SiriusXM Certificate and each holder of uncertificated
shares of SiriusXM Common Stock shall cease to have any rights with respect thereto, except that such SiriusXM Certificate or uncertificated
share shall represent only the right to receive (x) the Merger Consideration deliverable in respect of the shares of SiriusXM Common
Stock represented by such SiriusXM Certificate or uncertificated share immediately prior to the Merger Effective Time and (y) any
dividends or other distributions payable pursuant to Section 2.2(d), all to be issued or paid, without interest, in consideration
therefor upon the surrender of such SiriusXM Certificate or uncertificated share in accordance with Section 2.2(c) (or, in
the case of a lost, stolen or destroyed SiriusXM Certificate, Section 2.2(f)).
(ii) Cancellation
of Shares. Each issued share of SiriusXM Common Stock that is owned by SiriusXM and issued and outstanding immediately prior to the
Merger Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(iii) Conversion
of Merger Sub Limited Liability Company Interests. All of the limited liability company interests of Merger Sub issued and outstanding
immediately prior to the Merger Effective Time shall be, in the aggregate, automatically converted and divided into that number of shares
of common stock, par value $0.001 per share, of the Surviving Corporation (“Surviving Corporation Common Stock”) equal
to the number of shares of SiriusXM Common Stock outstanding immediately prior to the Merger Effective Time, excluding the Liberty Owned
SiriusXM Shares and shares of SiriusXM Common Stock cancelled pursuant to Section 2.1(a)(ii).
(iv) Conversion
of Liberty Owned SiriusXM Shares. Each Liberty Owned SiriusXM Share (which will be held by SplitCo and its Subsidiaries immediately
following the Split-Off Effective Time) issued and outstanding immediately prior to the Merger Effective Time shall be automatically
converted into one validly issued, fully paid and nonassessable share of Surviving Corporation Common Stock.
(b) Adjustments
to Exchange Ratio. So as to maintain the relative proportionate interests of the holders of the Liberty SiriusXM Common Stock and
the SiriusXM Common Stock prior to the closing of the Transactions in SplitCo Common Stock immediately following the Merger Effective
Time, the SiriusXM Exchange Ratio and the Merger Consideration shall be adjusted to reflect fully the appropriate effect of any stock
split, split-up, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into, or exercisable
or exchangeable for, SiriusXM Common Stock or Liberty SiriusXM Common Stock), reorganization, recapitalization, reclassification, combination
or exchange of shares, or other similar change with respect to (i) SiriusXM Common Stock having a record date on or after the date
hereof and prior to the Merger Effective Time and (ii) Liberty SiriusXM Common Stock having a record date occurring on or after
the date hereof and prior to the Split-Off Effective Time; provided, however, that the Split-Off and related transactions
shall not trigger the effects of this Section 2.1(b).
Section 2.2 Exchange
of Certificates and Book-Entry Shares.
(a) Exchange
Agent. Prior to the Closing Date, SplitCo shall (i) enter into an agreement reasonably satisfactory to SiriusXM, SplitCo and
Liberty (“Transfer Agent Agreement”) with a transfer agent mutually acceptable to Liberty and SiriusXM (the “Transfer
Agent”), and (ii) select an institution to serve as exchange agent mutually agreeable to Liberty and SiriusXM (“Exchange
Agent”) and enter into an agreement reasonably satisfactory to SiriusXM, SplitCo and Liberty with the Exchange Agent (“Exchange
Agent Agreement”) pursuant to which the Exchange Agent will exchange Certificates (as defined below) and Book-Entry Shares
(as defined below) for the Merger Consideration, as applicable, as set forth in this Article II. At the Closing, SplitCo shall instruct
the Transfer Agent to, promptly following the Merger Effective Time, issue and deposit, in trust for the benefit of the holders of record
of shares of SiriusXM Common Stock immediately prior to the Merger Effective Time, with the Exchange Agent for exchange in accordance
with this Article II shares in book-entry form representing the shares of SplitCo Common Stock issuable pursuant to Section 2.1
(such shares of SplitCo Common Stock, together with any dividends or other distributions with respect thereto with a record date after
the Merger Effective Time, being hereinafter referred to as the “Exchange Fund”).
(b) Exchange
Procedures. Promptly after the Merger Effective Time, and in any event no later than ten (10) Business Days after the Merger
Effective Time, SplitCo shall cause the Exchange Agent to mail to each holder of record of a certificate which immediately prior to the
Merger Effective Time represented outstanding shares of SiriusXM Common Stock (other than the Liberty Owned SiriusXM Shares) (the “Certificates”)
which at the Merger Effective Time were converted into the right to receive the Merger Consideration pursuant to Section 2.1, (i) a
letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Exchange Agent, and which shall be in customary form and shall have such other provisions
as SplitCo may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for
the Merger Consideration and any dividends or other distributions to which holders of Certificates are entitled pursuant to Section 2.2(d).
Each holder of shares in book-entry form which immediately prior to the Merger Effective Time represented outstanding shares of SiriusXM
Common Stock (other than the Liberty Owned SiriusXM Shares and shares cancelled in accordance with Section 2.1(a)(ii)) (“Book-Entry
Shares”) shall not be required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent to receive
the Merger Consideration payable pursuant to Section 2.1. In lieu thereof, each holder of record of one or more Book-Entry Shares
may provide an “agent’s message” in customary form with respect to any Book-Entry Share (or such other evidence, if
any, of transfer as the Exchange Agent may reasonably request). Upon surrender of a Certificate for cancellation to the Exchange Agent,
together with such letter of transmittal, duly completed and validly executed in accordance with the instructions (and such other customary
documents as may reasonably be required by the Exchange Agent), or upon receipt by the Exchange Agent of an appropriate agent’s
message (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of book-entry transfer
of Book-Entry Shares, each holder of such shares of SiriusXM Common Stock that have been converted into a right to receive the Merger
Consideration shall be entitled to receive in exchange therefor: (A) shares in book-entry form representing that number of whole
shares of SplitCo Common Stock that such holder has the right to receive pursuant to the provisions of this Article II after taking
into account all of the shares of SiriusXM Common Stock then held by such holder under all such Certificates so surrendered and Book-Entry
Shares so exchanged and (B) any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(d),
and the Certificate(s) so surrendered and/or Book-Entry Share(s) so exchanged shall forthwith be canceled. Until surrendered
or exchanged as contemplated by this Section 2.2(b), each Certificate and Book-Entry Share shall be deemed at any time after the
Merger Effective Time to represent only the right to receive the Merger Consideration and any dividends or other distributions to which
the holder of such Certificate or Book-Entry Share is entitled pursuant to Section 2.2(d), in each case, without interest.
(c) Certificate
Holder. If any portion of the Merger Consideration (or any other payment provided for in this Article II) is to be paid or registered
in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, it shall be a condition
to the payment or registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for
transfer and that the Person requesting such delivery of Merger Consideration (or other payment) shall pay to the Exchange Agent any
transfer or other similar Taxes required as a result of such payment or registration in the name of a Person other than the registered
holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d) Distributions
with Respect to Unexchanged Shares. No dividends or other distributions with respect to SplitCo Common Stock with a record date after
the Merger Effective Time shall be paid to the holder of any unsurrendered Certificate or non-exchanged Book-Entry Share with respect
to the shares of SplitCo Common Stock that the holder thereof has the right to receive upon the surrender thereof until the holder of
such Certificate or Book-Entry Share shall surrender such Certificate or exchange such Book-Entry Share in accordance with this Article II.
Following surrender of any Certificate or exchange of any Book-Entry Share in accordance with this Article II, there shall be paid
to the record holder thereof, without interest, (i) promptly following the time of such surrender or exchange the amount of dividends
or other distributions, payable with respect to that number of whole shares of SplitCo Common Stock issuable in exchange for such Certificate
or Book-Entry Share pursuant to this Article II, with a record date after the Merger Effective Time and paid with respect to SplitCo
Common Stock prior to such surrender, and (ii) at the appropriate payment date, the amount of dividends or other distributions with
a record date after the Merger Effective Time but prior to such surrender or exchange and a payment date subsequent to such surrender
or exchange payable with respect to such whole shares of SplitCo Common Stock.
(e) Transfer
Books; No Further Ownership Rights. All shares of SplitCo Common Stock issued upon the surrender of Certificates and exchange of
Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been issued (and paid) in full satisfaction
of all rights pertaining to the shares of SiriusXM Common Stock previously represented by such Certificates and Book-Entry Shares, and
at the Merger Effective Time the stock transfer books of SiriusXM shall be closed and thereafter there shall be no further registration
of transfers on the stock transfer books of the Surviving Corporation of the shares of SiriusXM Common Stock that were outstanding immediately
prior to the Merger Effective Time. Except as required by applicable Law, from and after the Merger Effective Time, the holders of Certificates
or Book-Entry Shares that evidenced ownership of shares of SiriusXM Common Stock outstanding immediately prior to the Merger Effective
Time shall cease to have any rights with respect to such shares. Subject to the last sentence of Section 2.2(g), if, at any time
after the Merger Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, SplitCo or the Exchange
Agent for any reason, they shall be canceled and exchanged as provided in this Article II.
(f) Lost,
Stolen or Destroyed Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the Person claiming such Certificate to have been lost, stolen or destroyed and, if required by SplitCo, the posting by
such Person of a bond, in such reasonable amount as SplitCo may direct, as indemnity against any claim that may be made against it with
respect to such Certificate, the Exchange Agent will issue, in exchange for such lost, stolen or destroyed Certificate, as applicable,
the Merger Consideration and any dividends or other distributions to which the holder of such Certificate would be entitled pursuant
to Section 2.2(d), in each case pursuant to this Agreement.
(g) Termination
of Fund. Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates or Book-Entry Shares for
six (6) months after the Merger Effective Time shall be delivered to SplitCo, upon demand by SplitCo and any holders of Certificates
or Book-Entry Shares who have not theretofore complied with this Article II shall thereafter look only to SplitCo for payment of
their claim for (i) the Merger Consideration and (ii) any dividends or other distributions with respect to shares of SplitCo
Common Stock in accordance with this Article II. If any Certificate or Book-Entry Share shall not have been surrendered or exchanged,
as applicable, immediately prior to such date on which any Merger Consideration (and all dividends or other distributions payable pursuant
to Section 2.2(d)) would otherwise escheat to or become property of any Governmental Authority, any such Merger Consideration (and
all dividends or other distributions payable pursuant to Section 2.2(d)) shall become, to the extent permitted by applicable Law,
the property of SplitCo, free and clear of all claims or interest of any Person previously entitled thereto.
(h) No
Liability. Notwithstanding any provision of this Agreement to the contrary, none of the parties hereto, the Surviving Corporation
or the Exchange Agent shall be liable to any Person in respect of any shares of SplitCo Common Stock (or dividends or other distributions
with respect thereto) or cash from the Exchange Fund, in each case delivered to a public official pursuant to any applicable abandoned
property, escheat or similar Law.
(i) Withholding
Taxes. SplitCo, the Surviving Corporation and the Exchange Agent shall each be entitled to deduct and withhold from the consideration
otherwise payable to a holder of shares of SiriusXM Common Stock or to any other Person pursuant to this Agreement such amounts as may
be required to be deducted and withheld with respect to the making of such payment under the Code, or under any provision of state, local
or foreign Tax Law. To the extent that amounts are so deducted or withheld by SplitCo, the Surviving Corporation and/or the Exchange
Agent, as applicable, and paid over to the appropriate Governmental Authority, such amounts shall be treated for the purposes of this
Agreement as having been paid to the holder of shares of SiriusXM Common Stock or other Person, as applicable, in respect of which such
deduction and withholding was made.
Section 2.3 SiriusXM
Equity Awards.
(a) SiriusXM
Stock Options. At the Merger Effective Time, each SiriusXM Stock Option (whether or not vested) that is outstanding and unexercised
immediately prior to the Merger Effective Time, shall, automatically and without any required action on the part of the holder thereof,
cease to represent an option award to purchase SiriusXM Common Stock and be converted into an option award to purchase SplitCo Common
Stock (an “Adjusted SiriusXM Stock Option”) governed by the same terms and conditions (including any applicable vesting
requirements) as applied to such SiriusXM Stock Option immediately prior to the Merger Effective Time, except that (1) the number
of shares of SplitCo Common Stock subject to such Adjusted SiriusXM Stock Option shall be equal to the product of (x) the SiriusXM
Exchange Ratio, multiplied by (y) the number of shares of SiriusXM Common Stock subject to such SiriusXM Stock Option immediately
prior to the Merger Effective Time, rounded down to the next whole share of SplitCo Common Stock and (2) the per share exercise
price of such Adjusted SiriusXM Stock Option shall be equal to the quotient of (A) the exercise price per share of the SiriusXM
Common Stock Option immediately prior to the Merger Effective Time divided by (B) the SiriusXM Exchange Ratio, with the result rounded
up to the nearest cent. It is the intent of the parties that conversion of each SiriusXM Stock Option to an Adjusted SiriusXM Option
shall be effected in a manner that satisfies the requirements of Section 409A of the Code and the Treasury Regulations, and this
Section 2.3(a) will be construed consistent with this intent.
(b) SiriusXM
Restricted Stock Units. At the Merger Effective Time, each SiriusXM Restricted Stock Unit that is outstanding immediately prior to
the Merger Effective Time shall, automatically and without any action on the part of the holder thereof, cease to represent a restricted
stock unit award denominated in shares of SiriusXM Common Stock and be converted into a restricted stock unit award denominated in shares
of SplitCo Common Stock (an “Adjusted SiriusXM Restricted Stock Units”), governed by the same terms and conditions
(including any applicable service-based or performance-based vesting requirements) as applied to each such SiriusXM Restricted Stock
Units immediately prior to the Merger Effective Time, except that the number of shares of SplitCo Common Stock subject to such Adjusted
SiriusXM Restricted Stock Units shall be equal to the product of (x) the SiriusXM Exchange Ratio (as defined below), multiplied
by (y) the number of shares of SiriusXM Common Stock subject to such SiriusXM Restricted Stock Units immediately prior to the Merger
Effective Time, rounded down to the next whole share of SplitCo Common Stock. For the avoidance of doubt, any amounts relating to dividend
equivalent rights, if any, that are accrued but unpaid under an outstanding SiriusXM Restricted Stock Units as of immediately prior to
the Merger Effective Time shall be converted consistent with the foregoing and remain subject to the same terms and conditions (including
any applicable service-based or performance-based vesting requirements) as were applicable under such SiriusXM Restricted Stock Units
immediately prior to the Merger Effective Time.
(c) Authorization.
Prior to the Merger Effective Time, SiriusXM or the Board of Directors of SiriusXM (or the applicable committee thereof), as applicable,
shall adopt resolutions and take all other actions necessary to authorize and direct the treatment of the SiriusXM Equity Awards set
forth in this Section 2.3.
Section 2.4 Actions
by SplitCo.
(a) At
the Merger Effective Time, by virtue of the Merger and without the need of any further corporate action by SplitCo or the Surviving Corporation,
SplitCo shall assume the SiriusXM Stock Plans, including all obligations with respect to the SiriusXM Equity Awards outstanding at the
Merger Effective Time (adjusted pursuant to Section 2.3). Following the Merger Effective Time, all references in the SiriusXM Stock
Plans to “the Company” will be deemed amended to refer instead to SplitCo and the SplitCo Board of Directors or a committee
thereof will succeed to the authority and responsibility of the SiriusXM Board of Directors or any applicable committee thereof with
respect to the administration of the SiriusXM Stock Plans.
(b) As
soon as practicable after the Merger Effective Time, SplitCo shall prepare and file with the Securities and Exchange Commission (the
“SEC”) a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the
shares of SplitCo Common Stock subject to SiriusXM Equity Awards outstanding at the Merger Effective Time (adjusted pursuant to Section 2.3).
(c) As
soon as practicable after the Merger Effective Time, SplitCo shall deliver to the holders of SiriusXM Equity Awards outstanding at the
Merger Effective Time (adjusted pursuant to Section 2.3) appropriate notices setting forth such holders’ rights after giving
effect to the Merger as described in Section 2.3.
ARTICLE III.
Representations and Warranties of Liberty
Except (a) as set forth
in the disclosure schedule delivered by Liberty to SiriusXM simultaneously with the execution of this Agreement (the “Liberty
Disclosure Schedule”) and (b) as set forth in the Liberty SEC Documents publicly available and filed with or furnished
to the SEC since December 31, 2021 but at least three (3) Business Days prior to the date of this Agreement (excluding any
disclosures (i) referenced in the “Forward Looking Statements” section(s), (ii) in any risk factors section and
(iii) any other disclosures that are similarly predictive or forward-looking in nature), Liberty represents and warrants to SiriusXM
that the statements contained in this Article III, in each case other than with respect to SiriusXM and its Subsidiaries, are true
and correct. The Liberty Disclosure Schedule shall be arranged in numbered and lettered sections corresponding to the numbered and lettered
sections contained in this Article III and Article IV, and the disclosure in any section shall be deemed to qualify the numbered
and lettered sections contained in this Article III and Article IV that correspond to the section of the Liberty Disclosure
Schedule in which such disclosure is set forth as well as any other sections in this Article III and Article IV to the extent
that it is reasonably apparent from the face of such disclosure that such disclosure also qualifies or applies to such other sections.
Section 3.1 Organization,
Standing and Corporate Power.
(a) Liberty
is (a) a corporation duly organized, validly existing and duly qualified or licensed and in good standing under the Laws of the
state or jurisdiction of its organization with full corporate power and authority to own, lease, use and operate its properties and to
conduct its business (with respect to Liberty SiriusXM) as currently conducted, and (b) duly qualified or licensed to do business
(with respect to Liberty SiriusXM) and, to the extent applicable, in good standing in any other jurisdiction in which the nature of the
business conducted by it or the property it owns, leases, uses or operates requires it to be so qualified, licensed or in good standing
(in each case, with respect to Liberty SiriusXM), except where the failures to be so qualified, licensed or in good standing have not
had a Material Adverse Effect on the SplitCo Business or on SplitCo and its Subsidiaries (“SplitCo Material Adverse Effect”).
(b) Liberty
has delivered to SiriusXM correct and complete copies of its certificate of incorporation and bylaws (the “Liberty Charter Documents”),
in each case as amended to the date of this Agreement. All such Liberty Charter Documents are in full force and effect and Liberty is
not in violation of any of their respective provisions.
Section 3.2 Capitalization.
(a) Prior
to the consummation of the Split-Off, the authorized capital stock of Liberty with respect to Liberty SiriusXM consists of 4,075,000,000
shares of Liberty SiriusXM Common Stock, of which 2,000,000,000 are designated as Series A Liberty SiriusXM Common Stock, par value
$0.01 per share (“Series A Liberty SiriusXM Common Stock”), 75,000,000 are designated as Series B Liberty
SiriusXM Common Stock, par value $0.01 per share (“Series B Liberty SiriusXM Common Stock”), and 2,000,000,000
are designated as Series C Liberty SiriusXM Common Stock, par value $0.01 per share (“Series C Liberty SiriusXM Common
Stock”, and together with Series A Liberty SiriusXM Common Stock and Series B Liberty SiriusXM Common Stock, “Liberty
SiriusXM Common Stock”). At the close of business on December 8, 2023, (i) 98,134,522 shares of Series A Liberty
SiriusXM Common Stock were issued and outstanding (which figure includes 706 Series A Liberty SiriusXM Restricted Shares), 9,761,336
shares of Series B Liberty SiriusXM Common Stock were issued and outstanding and 218,682,677 shares of Series C Liberty SiriusXM
Common Stock were issued and outstanding (which figure includes 9,170 Series C Liberty SiriusXM Restricted Shares) and (ii) no
shares of Liberty SiriusXM Common Stock were held by Liberty in its treasury. In addition, Liberty has authorized 50,000,000 shares of
preferred stock, par value $0.01 per share (“Liberty Preferred Stock”), none of which are issued and outstanding.
All outstanding shares of Liberty SiriusXM Common Stock have been duly authorized and validly issued and are fully paid, nonassessable
and free of preemptive rights. Included in Section 3.2(a) of the Liberty Disclosure Schedule is a correct and complete
list, as of the close of business on December 8, 2023, of all outstanding options, restricted stock units or other rights to purchase
or receive shares of Liberty SiriusXM Common Stock (excluding Liberty SiriusXM Restricted Shares) granted under the Liberty Stock Plans
or otherwise by Liberty, and, for each such option, restricted stock unit or other right (excluding Liberty SiriusXM Restricted Shares),
(A) the number of shares of Liberty SiriusXM Common Stock subject thereto and the exercise price thereof, as applicable, and (B) the
grant and expiration dates thereof, as applicable, and the name of the holder thereof. Since December 8, 2023, Liberty has not issued
any shares of Liberty SiriusXM Common Stock, or any securities convertible into or exchangeable or exercisable for any shares of Liberty
SiriusXM Common Stock, other than pursuant to the exercise of outstanding options or vesting of restricted stock units referred to above
in this Section 3.2(a) or as is contemplated by Section 6.2(a)(i).
(b) Except
as expressly provided by any Transaction Agreement, except as expressly provided in Section 3.2(a) and except in connection
with any obligations for the net settlement of or withholding obligations relating to any options, Liberty SiriusXM Restricted Shares,
restricted stock units or other rights to purchase or receive shares of Liberty SiriusXM Common Stock, in each case, set forth on Section 3.2(a) of
the Liberty Disclosure Schedule (or, with respect to Liberty SiriusXM Restricted Shares, set forth in Section 3.2(a)) or issued
after the date hereof as expressly permitted by this Agreement, there are no outstanding obligations of Liberty or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any shares of Liberty SiriusXM Common Stock (or any options, warrants or other rights to acquire
any shares of Liberty SiriusXM Common Stock) other than Liberty SiriusXM Restricted Shares that may be forfeited by their terms.
Section 3.3 Authority;
Noncontravention; Voting Requirements.
(a) Liberty
has all necessary corporate power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it
is a party, and, subject to obtaining the Liberty Stockholder Approval, to perform its obligations hereunder and thereunder, and to consummate
the Transactions. The execution, delivery and performance by Liberty of this Agreement and each other Transaction Agreement to which
it is a party, and the consummation by it of the Transactions, have been duly authorized and approved by Liberty’s Board of Directors,
and subject to the effectiveness of the Liberty Stockholder Approval, SplitCo Stockholder Consent, Merger Sub Member Consent and Sirius
Stockholder Consent, no other corporate action on the part of Liberty is necessary to authorize the execution, delivery and performance
by Liberty of this Agreement and each other Transaction Agreement to which it is a party and the consummation by it of the Transactions.
This Agreement and each other Transaction Agreement to which it is a party has been duly executed and delivered by Liberty and, assuming
due authorization, execution and delivery hereof by the other parties hereto and thereto, constitutes a legal, valid and binding obligation
of Liberty, enforceable against Liberty in accordance with each of their respective terms, except that such enforceability (i) may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting
or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether
considered in a proceeding at Law or in equity (the “Bankruptcy and Equity Exception”).
(b) Except
as set forth in Section 3.3(b) of the Liberty Disclosure Schedule, neither the execution and delivery of this Agreement
or any of the other Transaction Agreements to which it is a party by Liberty nor the consummation by Liberty of the Transactions, nor
compliance by Liberty with any of the terms or provisions of this Agreement or any of the other Transaction Agreements to which it is
a party, will:
(i) conflict
with or violate any provision of the Liberty Charter Documents;
(ii) violate,
or conflict with, or result in a breach of any provision of, or constitute a change of control or default (or an event that, with the
giving of notice, the passage of time or otherwise, would constitute a default) under, or require any action, consent, waiver or approval
of any third party or entitle any Person (with the giving of notice, the passage of time or otherwise) to terminate, accelerate, modify
or call a default under, or give rise to any obligation to make a payment under, or to any increased, additional or guaranteed rights
of any Person under (including any right of any security holder to put to or require Liberty or any of its Subsidiaries to purchase such
securities), or result in the creation of any Lien upon any of the properties or assets of Liberty or any of its Subsidiaries (in each
case, with respect to Liberty SiriusXM) or under any of the terms, conditions or provisions of any material Contract to which Liberty
or any of its Subsidiaries is a party or pursuant to which any of their respective properties or assets are bound (in each case, with
respect to Liberty SiriusXM), except in any such case other than Liberty SiriusXM Indebtedness Agreements for any such conflicts, violations,
breaches, defaults or occurrences which would not prevent or materially delay the performance of this Agreement or the other Transaction
Agreements by Liberty or the consummation of the Transactions;
(iii) assuming
the approvals required under Section 3.3(b)(iv) are obtained, violate any order, writ, or injunction, or any decree, or any
material Law applicable to Liberty or any of its Subsidiaries, or any of their respective properties or assets; or
(iv) require
any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except for (x) (A) the
filing with the SEC of the registration statement on Form S-4 (as amended or supplemented from time to time, the “Form S-4”)
by SplitCo in connection with the issuance of shares of SplitCo Common Stock in the Split-Off and Merger, which shall contain a prospectus
and a proxy statement relating to the Liberty Stockholders Meeting to obtain the Liberty Stockholder Approval (as amended or supplemented
from time to time, the “Prospectus / Proxy Statement”), and shall also contain (1) a notice to the stockholders
of SiriusXM pursuant to Section 228(e) of the DGCL and (2) a Schedule 14C (Information Statement), in each case, with
respect to the SiriusXM Stockholder Consent and Merger), (B) the filing with the SEC of (1) a Form 8-A to register the
SplitCo Common Stock, (2) a Form 25 to delist the SiriusXM Common Stock and a Form 15 to terminate the registration of
SiriusXM and (3) filings required under Section 16 and Section 13(d) of the Exchange Act in connection with the Transactions,
(C) prior to the Split-Off Effective Time, the filing with the Secretary of State of the State of Delaware of the SplitCo A&R
Charter, (D) after the Merger Effective Time, the filing of a registration statement on Form S-8 by SplitCo with respect to
the shares of SplitCo Common Stock issuable upon exercise of the SiriusXM Stock Options assumed by SplitCo and issuable upon exercise
of the SplitCo option awards (as defined in the Reorganization Agreement) and as to which Form S-8 is available, (E) other
filings required under, and compliance with other applicable requirements of, the Exchange Act and the rules of Nasdaq, (F) filings
by Liberty required under, and compliance with other applicable requirements of, the HSR Act and the rules and regulations promulgated
thereunder, and any similar Laws of foreign jurisdictions and (G) approval of the Transactions under the Communications Act (the
“Liberty FCC Approvals”) and (y) where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications would not prevent or materially delay the performance of this Agreement or the other Transaction
Agreements by Liberty or the consummation of the Transactions.
(c) The
Board of Directors of Liberty acting by unanimous written consent has (i) approved and declared advisable and in the best interests
of Liberty and its stockholders (including the holders of Liberty SiriusXM Common Stock) (A) the Split-Off and the transactions
contemplated thereby (including the transactions contemplated by the Reorganization Agreement) and (B) this Agreement, each of the
other Transaction Agreements to which Liberty is a party, and the transactions contemplated hereby and thereby (including the Merger
and the Transactions), and (ii) resolved to recommend that holders of Series A Liberty SiriusXM Common Stock and Series B
Liberty SiriusXM Common Stock, voting together as a separate class, approve the Split-Off (subject to Section 6.4(c)).
(d) No
Default (as defined in the Liberty SiriusXM Indebtedness Agreements) has occurred and is continuing or Event of Default (as defined in
the Liberty SiriusXM Indebtedness Agreements) has occurred, and immediately after giving effect to the Transactions (assuming the actions
set forth in Section 3.3(b) of the Liberty Disclosure Schedule have occurred), there shall be no Default or Event of
Default, under the Liberty SiriusXM Indebtedness Agreements. Section 3.3(d) of the Liberty Disclosure Schedule sets
forth a true and complete list of all indebtedness for borrowed money of Liberty or any of its Subsidiaries with respect to the SplitCo
Business and, as of the date hereof, the principal amount thereof and all accrued interest thereon.
(e) The
affirmative vote (in person or by proxy) of the holders of record of a majority of the aggregate voting power of the shares of the Series A
Liberty SiriusXM Common Stock and Series B Liberty SiriusXM Common Stock, voting together as a separate class, that are present
(in person or by proxy) and entitled to vote at the Liberty Stockholders Meeting or any adjournment or postponement thereof, in favor
of the approval of the Redemption (the “Liberty Stockholder Approval”) is the only vote or approval of the holders
of any class or series of capital stock of Liberty that is legally required to approve the Transactions.
Section 3.4 Liberty
SEC Documents; Financial Statements.
(a) As
of their respective dates (or, if amended prior to the date hereof, as of such amendment date), all reports, prospectuses, forms, schedules,
registration statements, proxy statements or information statements required to be filed by Liberty under the Securities Act or under
the Exchange Act, in each case, to the extent relating to or affecting Liberty SiriusXM or the Transactions (the “Liberty SEC
Documents”), complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act,
as the case may be, and none of such Liberty SEC Documents when filed contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Since January 1, 2021, Liberty has timely filed all reports and other filings required to
be filed with the SEC under the rules and regulations of the SEC. The books and records of Liberty and its Subsidiaries (with respect
to Liberty SiriusXM) have been, and are being, maintained in all material respects in accordance with applicable legal and accounting
requirements. The audited consolidated financial statements and unaudited consolidated interim financial statements included in the Liberty
SEC Documents (including any related notes and schedules) solely as they relate to Liberty SiriusXM fairly present in all material respects
the financial position of Liberty SiriusXM as of the dates thereof and the results of operations and changes in financial position or
other information included therein for the periods or as of the dates then ended, subject, where appropriate, to normal, recurring year-end
adjustments in each case in accordance with past practice and GAAP during the periods involved (except as otherwise stated therein) (none
of which are material, individually or in the aggregate to the Knowledge of Liberty). Each of the foregoing representations in this Section 3.4(a) is
made only with respect to information relating to assets and liabilities attributed to Liberty SiriusXM and with “materiality”
being defined by reference to Liberty SiriusXM.
(b) From
the date of the most recent audited balance sheet or unaudited balance sheet (the “Liberty Balance Sheet Date”) included
in the Liberty SEC Documents to the date hereof, except as set forth in Section 3.4(b) of the Liberty Disclosure Schedule,
(i) the business of Liberty attributed to Liberty SiriusXM has been conducted in the ordinary course of business consistent with
past practices, (ii) there has not been any event, circumstance, change or effect that has had or would reasonably be expected to
have, individually or in the aggregate, a material impact on the business of Liberty attributed to Liberty SiriusXM; provided that
SiriusXM’s business, assets, properties, liabilities, results of operations or financial condition and any Event with respect thereto
shall be excluded for purposes of any determination as to the existence of a “material impact” with respect to the business
of Liberty attributed to Liberty SiriusXM, (iii) neither Liberty nor a Subsidiary of Liberty as it relates to Liberty SiriusXM has
waived, released, compromised or settled any right or claim of substantial value to Liberty, any of its Subsidiaries or any other Person
and (iv) neither Liberty nor a Subsidiary of Liberty as it relates to Liberty SiriusXM has engaged in any transaction or taken any
other action except in the ordinary course of business consistent with past practices.
(c) To
the Knowledge of Liberty, there are no Liabilities of Liberty and its Subsidiaries attributed to Liberty SiriusXM, and there is no existing
condition, situation or set of circumstances that would reasonably be expected to result in such a Liability, other than (i) Liabilities
disclosed or provided for in the most recent audited consolidated financial statements and unaudited consolidated interim financial statements
included in the Liberty SEC Documents; (ii) Liabilities for Taxes; (iii) Liabilities set forth in Section 3.4(c) of
the Liberty Disclosure Schedule; and (iv) Liabilities incurred in the ordinary course of business consistent with past practice
that are not material, individually or in the aggregate, relative to the business of Liberty attributed to Liberty SiriusXM; provided
that (A) in no event shall any Liability of SiriusXM or any of its Subsidiaries be deemed a Liability of Liberty or any of its
Subsidiaries for purposes of this Section 3.4(c) and (B) SiriusXM’s business, assets, properties, liabilities, results
of operations or financial condition and any Event with respect thereto shall be excluded for purposes of any determination as to the
existence of a “material impact” with respect to the business of Liberty attributed to Liberty SiriusXM.
Section 3.5 Information
Supplied. None of the information supplied (or to be supplied) in writing by or on behalf of Liberty specifically for inclusion in
or incorporation by reference in, and which is included in or incorporated by reference in, (a) the Form S-4 will, at the time
(i) that the Form S-4 or any amendments or supplements thereto are filed with the SEC, (ii) the Form S-4 becomes
effective under the Securities Act, (iii) of the Liberty Stockholders Meeting, (iv) of the Split-Off and (v) of the Merger,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements made therein not misleading, and (b) the Prospectus / Proxy Statement will, on the date it is first mailed
to stockholders of Liberty and at the time of the Liberty Stockholders Meeting (or filing with the SEC (as applicable)), be false or
misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication.
The Form S-4 and Prospectus / Proxy Statement will comply as to form in all material respects with the applicable requirements of
the Securities Act or Exchange Act. Notwithstanding the foregoing, Liberty makes no representation or warranty with respect to information
supplied by or on behalf of SiriusXM for inclusion or incorporation by reference in any of the foregoing documents.
Section 3.6 Brokers
and Other Advisors. Except for JPMorgan Chase & Co. (“JPMorgan”), no broker, investment banker, financial
advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission,
or the reimbursement of expenses, in connection with the Transactions based upon arrangements made by or on behalf of Liberty or any
of its Subsidiaries.
Section 3.7 Liberty
Owned SiriusXM Shares.
(a) As
of the date hereof, all of the shares of SiriusXM capital stock Beneficially Owned by Liberty (excluding, for the avoidance of doubt,
any shares owned by the executive officers and directors of Liberty in their respective individual capacities or through entities for
estate planning purposes) are owned as follows: (i) 1,000,000,000 shares of SiriusXM Common Stock are Beneficially Owned by Liberty
SIRI Marginco, LLC, a Delaware limited liability company (“Liberty SIRI Marginco”), and (ii) 2,205,832,796 shares
of SiriusXM Common Stock are Beneficially Owned by Liberty Radio, each wholly owned Subsidiaries of Liberty. All of the shares of SiriusXM
capital stock Beneficially Owned by Liberty (excluding, for the avoidance of doubt, any shares Beneficially Owned by the executive officers
and directors of Liberty in their respective individual capacities or through entities for estate planning purposes) are owned free and
clear of any and all Liens, other than those Liens securing obligations under the Margin Loan Agreement. Except as provided for in this
Section 3.7, as of the date hereof, Liberty does not Beneficially Own any other shares of SiriusXM capital stock or any options
or other rights to purchase or receive shares of SiriusXM capital stock (excluding, for the avoidance of doubt, any shares, options or
other rights to purchase or receive shares of SiriusXM capital stock owned by the executive officers and directors of Liberty in their
respective individual capacities or through entities for estate planning purposes). Immediately following the Split-Off and prior to
the Merger Effective Time, SplitCo and its Subsidiaries will have good and valid title to the Liberty Owned SiriusXM Shares, free and
clear of any and all Liens (other than Liens securing obligations under the Margin Loan Agreement and restrictions set forth in this
Agreement), and Liberty will have no right, title or interest in or to the Liberty Owned SiriusXM Shares.
(b) (i) Except
for the 2.75% Exchangeable Senior Debentures, Liberty has not entered into or acquired any derivative Contract with respect to any shares
of SiriusXM Common Stock, other than the shares described in the first sentence of Section 3.7(a), and (ii) Liberty has not
entered into any other hedging or other similar transaction that has the effect of providing Liberty with the economic benefits, voting
rights or risks of ownership of any shares of SiriusXM Common Stock, other than the shares described in the first sentence of Section 3.7(a),
in each case, which remains outstanding or in effect.
Section 3.8 Solvency.
Immediately prior to, and after, the Closing, (a) the fair value of the assets of Liberty and each of its Subsidiaries will exceed
each of its respective Liabilities, (b) each of Liberty and its Subsidiaries will be able to pay its Liabilities, as such Liabilities
become absolute and matured and (c) neither Liberty nor any of its Subsidiaries will have unreasonably small capital with which
to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing
Date.
Section 3.9 State
Takeover Statutes. No “fair price,” “moratorium,” “control share acquisition” or other similar
antitakeover statute or regulation enacted under state or federal Laws in the United States (with the exception of Section 203 of
the DGCL) applicable to Liberty is applicable to the Transactions. The action of the Board of Directors of Liberty in approving this
Agreement and the Transactions is sufficient to render inapplicable to this Agreement and the Transactions the restrictions on “business
combinations” (as defined in Section 203 of the DGCL) as set forth in Section 203 of the DGCL.
Section 3.10 Tax
Matters.
(a) Except
as would not reasonably be expected to have a SplitCo Material Adverse Effect:
(i) (A) All
Tax Returns required to be filed with any Taxing Authority by or on behalf of SplitCo or any of the Contributed Subsidiaries, or with
respect to the SplitCo Assets or the SplitCo Business, have been timely filed when due (taking into account any extension of time within
which to file) in accordance with all applicable Laws; (B) all such Tax Returns are true, accurate and complete in all respects
and have been prepared in substantial compliance with all applicable Laws; (C) all Taxes due and payable (including any Taxes that
are required to be collected, deducted or withheld in connection with any amounts paid or owing to, or received or owing from, any employee,
creditor, independent contractor or other third party) by SplitCo or any of the Contributed Subsidiaries, or in respect of the SplitCo
Assets or SplitCo Business, have been timely paid (or collected or withheld and remitted) to the appropriate Taxing Authority, except
for Taxes or Tax matters being contested in good faith and for which adequate reserves have been established in accordance with GAAP;
(D) no written claim has been made by any Taxing Authority in a jurisdiction where a Tax Return is not filed by or on behalf of
SplitCo or any of the Contributed Subsidiaries, or with respect to the SplitCo Assets or the SplitCo Business, that SplitCo, any of the
Contributed Subsidiaries, the SplitCo Assets or the SplitCo Business is, or may be, subject to Tax by or required to file or be included
in a Tax Return in that jurisdiction; and (E) there are no Liens on any of the SplitCo Assets or the SplitCo Business that arose
in connection with any failure (or alleged failure) to pay any Tax (except for Liens that arise by operation of Law for Taxes not yet
due and payable);
(ii) All
applicable Laws relating to the payment and withholding of Taxes by SplitCo or any of the Contributed Subsidiaries, or with respect to
the SplitCo Assets or the SplitCo Business, have been complied with and all amounts required to be so withheld and paid over under all
applicable Laws have been, within the time and the manner prescribed by applicable Law, withheld from and paid over to the proper Taxing
Authorities;
(iii) (A) No
outstanding written claim has been received by, and no audit, Action, suit or proceeding is in progress, against or with respect to SplitCo,
any of the Contributed Subsidiaries, the SplitCo Assets or the SplitCo Business in respect of any Tax; and (B) all deficiencies,
assessments or proposed adjustments asserted against SplitCo, any of the Contributed Subsidiaries, the SplitCo Assets or SplitCo Business
by any Taxing Authority have been paid or fully and finally settled;
(iv) Neither
SplitCo nor any of the Contributed Subsidiaries (A) is a party to any tax sharing, tax allocation or tax indemnification agreement
(other than the Liberty Tax Sharing Policies, the Tax Sharing Agreement and the Sirius/Liberty Tax Sharing Agreement) or (B) has
any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local,
or foreign Law) or as a transferee or successor, except for such liability arising from membership in a Liberty Combined Group;
(v) None
of SplitCo, any of the Contributed Subsidiaries or any other entity holding SplitCo Assets or a SplitCo Business has participated in
a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2);
(vi) Neither
SplitCo nor any of the Contributed Subsidiaries is a party to or bound by any advance pricing agreement, closing agreement or other agreement
or ruling relating to Taxes with any Taxing Authority that will remain in effect with respect to SplitCo, any of the Contributed Subsidiaries,
the SplitCo Assets or the SplitCo Business after the Closing; and
(vii) Other
than in connection with the ABHI Split-Off or the Split-Off, during the two-year period ending on the date of this Agreement, none of
SplitCo, any of the Contributed Subsidiaries or any other entity holding SplitCo Assets or a SplitCo Business has been either a “distributing
corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free
treatment under Section 355(a) of the Code.
(b) Liberty
has complied in all material respects with its obligations under the Sirius/Liberty Tax Sharing Agreement.
(c) As
of the date of this Agreement, Liberty is not aware of any fact, agreement, plan or other circumstance that could reasonably be expected
to (i) prevent or preclude the exchanges of SiriusXM Common Stock for the Merger Consideration pursuant to the Merger, taken together
with the Contribution, from qualifying for the Merger Intended Tax Treatment, (ii) cause the Split-Off to fail to qualify for the
Split-Off Intended Tax Treatment or (iii) prevent or preclude Liberty from delivering the Liberty Split-Off Representation Letters
or SplitCo from delivering the SplitCo Merger Representation Letter or the SplitCo Split-Off Representation Letters.
Section 3.11 Absence
of Operations. Liberty Radio and Liberty SIRI Marginco have conducted no activities prior to the Split-Off Effective Time other than
as provided in Section 3.11 of the Liberty Disclosure Schedule.
Section 3.12 Investigation;
Reliance. Liberty hereby acknowledges and agrees that SiriusXM makes no representations or warranties to Liberty, express or implied,
other than those representations and warranties set forth in this Agreement and the other Transaction Agreements. Liberty hereby expressly
acknowledges and agrees that, except in the case of fraud or willful breach, neither SiriusXM nor any Person will have or be subject
to any liability to Liberty or any other Person resulting from any statements or communications by SiriusXM or any of its Affiliates
or Representatives with respect to any matter in connection with its investigation or evaluation of the Transactions, including any information,
document or material made available in any offering memorandum, in any “data room,” in any management presentations or in
any other form, except for the representations and warranties expressly set forth in this Agreement and the other Transaction Agreements.
ARTICLE IV.
Representations and Warranties of SplitCo and Merger Sub
Except (a) as set forth
in the Liberty Disclosure Schedule and (b) as set forth in the Liberty SEC Documents publicly available and filed with or furnished
to the SEC since December 31, 2021 but at least three (3) Business Days prior to the date of this Agreement (excluding any
disclosures (i) referenced in the “Forward Looking Statements” section(s), (ii) in any risk factors section and
(iii) any other disclosures that are similarly predictive or forward-looking in nature), each of SplitCo and Merger Sub represents
and warrants to SiriusXM that the statements contained in this Article IV, in each case other than with respect to SiriusXM and
its Subsidiaries, are true and correct.
Section 4.1 Organization,
Standing and Power.
(a) Each
of SplitCo, Merger Sub and, as of the Split-Off Effective Time, SplitCo’s other Subsidiaries is (a) a corporation, limited
liability company or other legal entity duly organized, validly existing and duly qualified or licensed and in good standing under the
Laws of the state or jurisdiction of its organization with full corporate or other power, as the case may be, and authority to own, lease,
use and operate its properties and to conduct its business as currently conducted, and (b) duly qualified or licensed to do business
and, to the extent applicable, in good standing in any other jurisdiction in which the nature of the business conducted by it or the
property it owns, leases, uses or operates requires it to be so qualified, licensed or in good standing, except where the failures to
be so qualified, licensed or in good standing have not had a SplitCo Material Adverse Effect.
(b) As
of the date hereof, Merger Sub is SplitCo’s only Subsidiary. Section 4.1(b) of the Liberty Disclosure Schedule
lists all Subsidiaries of SplitCo together with (i) the jurisdiction of organization of each such Subsidiary and (ii) in the
case of Subsidiaries that are not wholly owned by SplitCo, the percentage owned by SplitCo, or in the case of an indirect Subsidiary,
the percentage owned by a Subsidiary of SplitCo, in each case as of the Split-Off Effective Time. As of the Split-Off Effective Time,
except as set forth in Section 4.1(b) of the Liberty Disclosure Schedule, (A) SplitCo does not have and has never
had any direct or indirect Subsidiaries, (B) SplitCo does not own, directly or indirectly, any capital stock, voting securities
or equity interests in any Person (other than any ownership in a Person directly or indirectly through SiriusXM) and (C) all the
outstanding shares of capital stock of, or other equity interests in, each Subsidiary of SplitCo have been duly authorized and validly
issued and are fully paid and nonassessable and are owned directly or indirectly by SplitCo free and clear of all Liens.
(c) SplitCo
(i) has delivered to SiriusXM correct and complete copies of (1) the SplitCo Charter and the SplitCo Bylaws (the “SplitCo
Charter Documents”), in each case, as amended to the date of this Agreement and without giving effect to the Split-Off and
(2) the certificate of formation and limited liability company operating agreement (collectively, the “Merger Sub Organizational
Documents”) and (ii) will deliver to SiriusXM correct and complete copies of the certificates of incorporation, bylaws
and stockholders’ or governance agreements (or comparable organizational documents) of each of its other Subsidiaries as of the
Split-Off Effective Time (the “SplitCo Subsidiary Documents”). As of the date of this Agreement, the SplitCo Charter
Documents and the Merger Sub Organizational Documents are in full force and effect and neither SplitCo nor Merger Sub, as applicable,
is in violation of any of their respective provisions. As of the Split-Off Effective Time, the SplitCo Public Charter Documents and all
of the SplitCo Subsidiary Documents, as applicable, will be in full force and effect and none of SplitCo, Merger Sub or SplitCo’s
other Subsidiaries will be in violation of any of their respective provisions.
Section 4.2 Capitalization.
(a) Prior
to the consummation of the Split-Off, the authorized capital stock of SplitCo consists of 1,000 shares of common stock, par value $0.001
per share, all of the issued and outstanding shares of which are held directly by Liberty prior to the Split-Off. Immediately following
the consummation of the Split-Off, except as set forth in Section 4.2(a) of the Liberty Disclosure Schedule, (i) there
will be a number of shares of SplitCo Common Stock outstanding equal to the sum of (A) the product of the number of shares of Series A
Liberty SiriusXM Common Stock issued and outstanding immediately prior to the Split-Off Effective Time multiplied by the Exchange
Ratio (as defined in the Reorganization Agreement), rounded up to the next whole share of SplitCo Common Stock plus (B) the
product of the number of shares of Series B Liberty SiriusXM Common Stock issued and outstanding immediately prior to the Split-Off
Effective Time multiplied by the Exchange Ratio, rounded up to the next whole share of SplitCo Common Stock plus (C) the
product of the number of shares of Series C Liberty SiriusXM Common Stock issued and outstanding immediately prior to the Split-Off
Effective Time multiplied by the Exchange Ratio, rounded up to the next whole share of SplitCo Common Stock (ii) there will
be a number of options to purchase SplitCo Common Stock equal to the number of Liberty SiriusXM Stock Options outstanding as of the Redemption
Date multiplied by the Exchange Ratio (as defined in the Reorganization Agreement), rounded down for each option award to the next whole
share of SplitCo Common Stock, in each case of (i) and (ii), as more fully described in, and subject to the terms of, Sections 2.1(h),
2.4(b), 2.4(c) and 2.4(d), as applicable, of the Reorganization Agreement, (iii) no shares of SplitCo Common Stock will be
held by SplitCo in its treasury and (iv) no shares of preferred stock of SplitCo will be issued or outstanding. All outstanding
shares of SplitCo Common Stock are, and all shares thereof which may be issued will be, when issued, duly authorized, validly issued,
fully paid, nonassessable and not subject to preemptive rights. Prior to the consummation of the Split-Off, except as set forth in this
Section 4.2, as expressly permitted under Section 6.2(a)(i) or Section 6.2(a)(i) of the Liberty Disclosure
Schedule and as expressly provided by the Reorganization Agreement, there are no shares of capital stock, voting securities or equity
interests of SplitCo issued and outstanding or any subscriptions, options, warrants, calls, convertible or exchangeable securities, rights,
commitments or agreements of any character providing for the issuance of any shares of capital stock, voting securities or equity interests
of SplitCo, including any representing the right to purchase or otherwise receive any SplitCo Common Stock. Except as expressly provided
by any Transaction Agreement or as set forth in Section 4.2(a) of the Liberty Disclosure Schedule, there are no outstanding
obligations of SplitCo or, as of the Split-Off Effective Time, any of its Subsidiaries to repurchase, redeem or otherwise acquire any
shares of capital stock, voting securities or equity interests (or any options, warrants or other rights to acquire any shares of capital
stock, voting securities or equity interests) of SplitCo or any of its Subsidiaries.
(b) There
are no issued or outstanding bonds, debentures, notes or other indebtedness of SplitCo or any of its Subsidiaries having the right to
vote (or convertible into, or exchangeable for, securities having the right to vote), upon the happening of a certain event or otherwise,
on any matters on which the equity holders of SplitCo or any of its Subsidiaries may vote other than, as of the Split-Off Effective Time,
to the extent outstanding, (i) the 2.75% Exchangeable Senior Debentures, (ii) the 3.75% Convertible Senior Notes and (iii) any
indebtedness permitted to be incurred pursuant to Section 6.2.
(c) All
of the authorized, issued and outstanding limited liability company interests of Merger Sub are held directly by SplitCo, which is the
sole and managing member of Merger Sub. All issued and outstanding limited liability company interests of Merger Sub are duly authorized,
validly issued, and not subject to preemptive rights. Other than as set forth in the first sentence of this Section 4.2(c), there
are no limited liability company interests, voting securities or other equity interests of Merger Sub issued and outstanding or any subscriptions,
options, warrants, calls, convertible or exchangeable securities, rights, commitments or agreements of any character providing for the
issuance of any limited liability company interests, voting securities or other equity interests of Merger Sub, including any representing
the right to purchase or otherwise receive any limited liability company interests of Merger Sub.
Section 4.3 Authority;
Noncontravention; Voting Requirements.
(a) Each
of SplitCo and Merger Sub has all necessary corporate and limited liability company power and authority to execute and deliver this Agreement
and each of the other Transaction Agreements to which it is a party and to perform its obligations hereunder and thereunder, and, subject
to the effectiveness of the SplitCo Stockholder Consent and Merger Sub Member Consent, to consummate the Transactions. The execution,
delivery and performance by each of SplitCo and Merger Sub of this Agreement and each of the other Transaction Agreements to which SplitCo
and/or Merger Sub, as applicable, is a party, and the consummation by each of SplitCo and Merger Sub of the Transactions, have been duly
authorized and approved by SplitCo’s Board of Directors and the sole member of Merger Sub, and subject to the effectiveness of
the SplitCo Stockholder Consent and Merger Sub Member Consent, no other corporate or limited liability company action on the part of
SplitCo or Merger Sub is necessary to authorize the execution, delivery and performance by each of SplitCo and Merger Sub of this Agreement,
each of the other Transaction Agreements to which SplitCo and/or Merger Sub, as applicable, is a party and the consummation by SplitCo
and Merger Sub of the Transactions. This Agreement and each of the other Transaction Agreements to which SplitCo and/or Merger Sub is
a party, as applicable, have been duly executed and delivered by SplitCo and/or Merger Sub, as applicable, and, assuming due authorization,
execution and delivery hereof and thereof by the other parties hereto and thereto, constitutes a legal, valid and binding obligation
of SplitCo and/or Merger Sub, as applicable, enforceable against SplitCo and/or Merger Sub, as applicable, in accordance with its and
their terms, except that such enforceability is subject to the Bankruptcy and Equity Exception.
(b) Except
as set forth in Section 4.3(b) of the Liberty Disclosure Schedule, neither the execution and delivery of this Agreement
or any of the other applicable Transaction Agreements by each of SplitCo and Merger Sub or, as of the Split-Off Effective Time, any of
SplitCo’s other Subsidiaries nor the consummation by SplitCo, Merger Sub or, as of the Split-Off Effective Time, any of its other
Subsidiaries of the Transactions, nor compliance by SplitCo, Merger Sub or, as of the Split-Off Effective Time, any of its other Subsidiaries
with any of the terms or provisions of this Agreement or any of the other Transaction Agreements to which it is a party, will:
(i) conflict
with or violate any provision of the SplitCo Charter Documents, the Merger Sub Organizational Documents or, as of the Split-Off Effective
Time, any provision of the SplitCo Subsidiary Documents or the SplitCo Public Charter Documents;
(ii) violate,
or conflict with, or result in a breach of any provision of, or constitute a change of control or default (or an event that, with the
giving of notice, the passage of time or otherwise, would constitute a default) under, or require any action, consent, waiver or approval
of any third party or entitle any Person (with the giving of notice, the passage of time or otherwise) to terminate, accelerate, modify
or call a default under, or give rise to any obligation to make a payment under, or to any increased, additional or guaranteed rights
of any Person under (including any right of any security holder to put or require SplitCo, Merger Sub or any of SplitCo’s other
Subsidiaries to purchase such securities), or result in the creation of any Lien upon any of the properties or assets of SplitCo, Merger
Sub or, as of the Split-Off Effective Time, any of SplitCo’s other Subsidiaries or under any of the terms, conditions or provisions
of any material Contract to which SplitCo, Merger Sub or, as of the Split-Off Effective Time, any of SplitCo’s other Subsidiaries
is a party or pursuant to which any of their respective properties or assets are bound, except in the case of any such material Contract
other than Liberty SiriusXM Indebtedness Agreements for any such conflicts, violations, breaches, defaults or occurrences which would
not have a material adverse effect on the SplitCo Business, SplitCo and SplitCo’s Subsidiaries or prevent or materially delay the
performance of this Agreement or the other Transaction Agreements by SplitCo or Merger Sub or the consummation of the Transactions; provided
that SiriusXM’s business, assets, properties, liabilities, results of operations or financial condition and any Event with
respect thereto shall be excluded for purposes of any determination as to the existence of a “material adverse effect” with
respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries;
(iii) assuming
the approvals required under Section 4.3(b)(iv) are obtained, violate any order, writ, or injunction, or any decree, or any
material Law applicable to SplitCo, Merger Sub or, as of the Split-Off Effective Time, any of SplitCo’s other Subsidiaries, or
any of their respective properties or assets; or
(iv) require
any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except for (x) (A) the
filing with the SEC of each of the Form S-4 and the Prospectus / Proxy Statement, (B) the filing with the SEC of (1) a
Form 8-A to register the SplitCo Common Stock, (2) a Form 25 to delist the SiriusXM Common Stock and a Form 15 to
terminate the registration of SiriusXM and (3) filings required under Section 16 and Section 13(d) of the Exchange
Act in connection with the Transactions, (C) prior to the Split-Off Effective Time, the filing with the Secretary of State of the
State of Delaware of the SplitCo A&R Charter, (D) after the Merger Effective Time, the filing of a registration statement on
Form S-8 by SplitCo with respect to the shares of SplitCo Common Stock issuable upon exercise of the SiriusXM Stock Options assumed
by SplitCo and issuable upon exercise of the SplitCo option awards and as to which Form S-8 is available, (E) other filings
required under, and compliance with other applicable requirements of, the Exchange Act and the rules of Nasdaq, (F) the filing
of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL and DLLCA, (G) filings by
SplitCo required under, and compliance with other applicable requirements of, the HSR Act and the rules and regulations promulgated
thereunder, and any similar Laws of foreign jurisdictions and (H) approval of the Transactions under the Communications Act (the
“SplitCo FCC Approvals”) and (y) where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications would not, individually or in the aggregate, have a SplitCo Material Adverse Effect or prevent
or materially delay the performance of this Agreement or the other Transaction Agreements by SplitCo or Merger Sub or the consummation
of the Transactions.
(c) On
or prior to the date hereof, the Board of Directors of SplitCo, acting by unanimous written consent, approved and declared advisable
and in the best interests of its sole stockholder, this Agreement, each of the other Transaction Agreements to which SplitCo is a party,
and the transactions contemplated hereby and thereby (including the Merger and the Transactions).
(d) The
Merger Sub Member Consent is the only approval necessary for Merger Sub to enter into and approve this Agreement and approve the Merger.
Section 4.4 Absence
of Operations. Other than as provided in Section 4.4 of the Liberty Disclosure Schedule, prior to the Split-Off Effective
Time, (a) SplitCo has conducted no activities other than in connection with the Transactions (including the execution and delivery
of this Agreement or the Transaction Agreements to which it is or will be a party) or its activities and business operations conducted
by SiriusXM and its Subsidiaries and (b) Merger Sub has conducted no activities other than in connection with the Transactions (including
the execution and delivery of this Agreement or the Transaction Agreements to which it is or will be a party).
Section 4.5 Investigation;
Reliance. Each of SplitCo and Merger Sub hereby acknowledges and agrees that SiriusXM makes no representations or warranties to SplitCo
or Merger Sub, express or implied, other than those representations and warranties set forth in this Agreement and the other Transaction
Agreements. Each of SplitCo and Merger Sub hereby expressly acknowledges and agrees that, except in the case of fraud or willful breach,
neither SiriusXM nor any Person will have or be subject to any liability to SplitCo, Merger Sub or any other Person resulting from any
statements or communications by SiriusXM or any of its Affiliates or Representatives with respect to any matter in connection with its
investigation or evaluation of the Transactions, including any information, document or material made available in any offering memorandum,
in any “data room,” in any management presentations or in any other form, except for the representations and warranties expressly
set forth in this Agreement and the other Transaction Agreements.
ARTICLE V.
Representations and Warranties of SiriusXM
Except (a) as set forth
in the disclosure schedule delivered by SiriusXM to Liberty and SplitCo simultaneously with the execution of this Agreement (the “SiriusXM
Disclosure Schedule”) and (b) as set forth in the SiriusXM SEC Documents publicly available and filed with or furnished
to the SEC since December 31, 2021 but at least three (3) Business Days prior to the date of this Agreement (excluding any
disclosures (i) referenced in the “Forward Looking Statements” section(s), (ii) in any risk factors section and
(iii) any other disclosures that are similarly predictive or forward-looking in nature), SiriusXM represents and warrants to Liberty,
SplitCo and Merger Sub that the statements contained in this Article V are true and correct. The SiriusXM Disclosure Schedule shall
be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article V, and
the disclosure in any section shall be deemed to qualify the numbered and lettered sections contained in this Article V that correspond
to the section of the SiriusXM Disclosure Schedule in which such disclosure is set forth as well as any other sections in this Article V
to the extent that it is reasonably apparent from the face of such disclosure that such disclosure also qualifies or applies to such
other sections.
Section 5.1 Organization,
Standing and Corporate Power.
(a) SiriusXM
is (a) a corporation duly organized, validly existing and duly qualified or licensed and in good standing under the Laws of the
state or jurisdiction of its organization with full corporate power and authority to own, lease, use and operate its properties and to
conduct its business as currently conducted, and (b) duly qualified or licensed to do business and, to the extent applicable, in
good standing in any other jurisdiction in which the nature of the business conducted by it or the property it owns, leases, uses or
operates requires it to be so qualified, licensed or in good standing, except where the failures to be so qualified, licensed or in good
standing have not had a Material Adverse Effect on SiriusXM (“SiriusXM Material Adverse Effect”).
(b) Section 5.1(b) of
the SiriusXM Disclosure Schedule lists all Subsidiaries of SiriusXM together with (i) the jurisdiction of organization of each
such Subsidiary and (ii) in the case of Subsidiaries that are not wholly owned by SiriusXM, the percentage owned by SiriusXM, or
in the case of an indirect Subsidiary, the percentage owned by a Subsidiary of SiriusXM. Except as set forth in Section 5.1(b) of
the SiriusXM Disclosure Schedule, all of the outstanding shares of capital stock of, or other equity interests in, each Subsidiary
of SiriusXM have been duly authorized and validly issued and are fully paid and nonassessable and are owned directly or indirectly by
SiriusXM free and clear of all Liens. Except as set forth in Section 5.1(b) of the SiriusXM Disclosure Schedule, SiriusXM
does not own, directly or indirectly, any capital stock, voting securities or equity interests in any Person.
(c) SiriusXM
has delivered to Liberty correct and complete copies of its certificate of incorporation and bylaws (the “SiriusXM Charter Documents”),
as amended to the date of this Agreement. All such SiriusXM Charter Documents and the certificates of incorporation, bylaws and stockholders’
or governance agreements (or comparable organizational documents) of each of its Subsidiaries (the “SiriusXM Subsidiary Documents”)
are in full force and effect and neither SiriusXM nor any of its Subsidiaries is in violation of any of their respective provisions.
Section 5.2 Capitalization.
(a) The
authorized capital stock of SiriusXM consists of 9,000,000,000 shares of SiriusXM Common Stock and 50,000,000 shares of preferred stock,
par value $0.001 per share (the “SiriusXM Preferred Stock”). At the close of business on December 7, 2023, (i) 3,841,384,374
shares of SiriusXM Common Stock were issued and outstanding, (ii) 0 shares of SiriusXM Common Stock were held by SiriusXM in its
treasury, (iii) 318,063,356 shares of SiriusXM Common Stock were reserved for issuance under the SiriusXM Stock Plans (of which
215,211,607 shares of SiriusXM Common Stock were subject to either outstanding options to purchase, or restricted stock units with respect
to, shares of SiriusXM Common Stock granted under the SiriusXM Stock Plan), and (iv) no shares of SiriusXM Preferred Stock were
issued or outstanding. All outstanding shares of SiriusXM Common Stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights. Included in Section 5.2(a) of the SiriusXM Disclosure Schedule is a correct
and complete list, as of December 7, 2023, of all outstanding options, restricted stock units or other rights to purchase or receive
shares of SiriusXM Common Stock granted under the SiriusXM Stock Plans or otherwise, and, for each such option, restricted stock unit
or other right, (A) the number of shares of SiriusXM Common Stock subject thereto and the exercise price thereof, as applicable,
and (B) the grant and expiration dates thereof, as applicable, and the name of the holder thereof. Since December 7, 2023,
SiriusXM has not issued any shares of SiriusXM capital stock, voting securities or equity interests, or any securities convertible into
or exchangeable or exercisable for any shares of SiriusXM capital stock, voting securities or equity interests, other than pursuant to
the exercise of outstanding options or the vesting of restricted stock units referred to above in this Section 5.2(a) or as
permitted under Section 6.3.
(b) Except
as set forth in Section 5.2(b) of the SiriusXM Disclosure Schedule, there are no outstanding obligations of SiriusXM
or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock, voting securities or equity interests
(or any options, warrants or other rights to acquire any shares of capital stock, voting securities or equity interests) of SiriusXM.
(c) There
are no issued or outstanding bonds, debentures, notes or other indebtedness of SiriusXM or any of its Subsidiaries having the right to
vote (or convertible into, or exchangeable for, securities having the right to vote), upon the happening of a certain event or otherwise,
on any matters on which the equity holders of SiriusXM or any of its Subsidiaries may vote.
Section 5.3 Authority;
Noncontravention; Voting Requirements.
(a) SiriusXM
has all necessary corporate power and authority to execute and deliver this Agreement and each of the other Transaction Agreements to
which it is a party and, subject to the effectiveness of the SiriusXM Stockholder Consent, to perform its obligations hereunder and thereunder,
and, subject to the effectiveness of the SiriusXM Stockholder Consent to consummate the Transactions. The execution, delivery and performance
by SiriusXM of this Agreement and each of the other Transaction Agreements to which it is a party, and the consummation by it of the
Transactions, have been duly authorized and approved by SiriusXM’s Board of Directors and the Special Committee and, subject to
the effectiveness of, the SiriusXM Stockholder Consent, no other corporate action on the part of SiriusXM is necessary to authorize the
execution, delivery and performance by SiriusXM of this Agreement, each of the other Transaction Agreements to which it is a party and
the consummation by it of the Transactions. This Agreement and each of the other Transaction Agreements to which it is a party have been
duly executed and delivered by SiriusXM and, assuming due authorization, execution and delivery hereof and thereof by the other parties
hereto and thereto, constitutes a legal, valid and binding obligation of SiriusXM, enforceable against SiriusXM in accordance with its
and their terms, except that such enforceability is subject to the Bankruptcy and Equity Exception.
(b) Except
as set forth in Section 5.3(b) of the SiriusXM Disclosure Schedule, neither the execution and delivery of this Agreement
or any of the other Transaction Agreements to which it is a party by SiriusXM nor the consummation by SiriusXM of the Transactions, nor
compliance by SiriusXM with any of the terms or provisions of this Agreement or any of the other Transaction Agreements to which it is
a party, will:
(i) conflict
with or violate any provision of the SiriusXM Charter Documents or any provision of the SiriusXM Subsidiary Documents;
(ii) violate,
or conflict with, or result in a breach of any provision of, or constitute a change of control or default (or an event that, with the
giving of notice, the passage of time or otherwise, would constitute a default) under, or require any action, consent, waiver or approval
of any third party or entitle any Person (with the giving of notice, the passage of time or otherwise) to terminate, accelerate, modify
or call a default under, or give rise to any obligation to make a payment under, or to any increased, additional or guaranteed rights
of any Person under, or result in the creation of any Lien upon any of the properties or assets of SiriusXM or any of its Subsidiaries
or under any of the terms, conditions or provisions of any material Contract to which SiriusXM or any of its Subsidiaries is a party
or pursuant to which any of their respective properties or assets are bound, except for any such conflicts, violations, breaches, defaults
or occurrences which would not, individually or in the aggregate, have a SiriusXM Material Adverse Effect or prevent or materially delay
the performance of this Agreement or the other Transaction Agreements by SiriusXM or the consummation of the Transactions;
(iii) assuming
the approvals required under Section 5.3(b)(iv) are obtained, violate any order, writ, or injunction, or any decree, or any
material Law applicable to SiriusXM or any of its Subsidiaries, or any of their respective properties or assets; or
(iv) require
any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except for (x) (A) the
filing with the SEC of each of the Form S-4 and the Prospectus / Proxy Statement, (B) the filing with the SEC of (1) the
Form 8-A to register the SplitCo Common Stock, (2) of a Form 25 to delist the SiriusXM Common Stock and a Form 15
to terminate the registration of SiriusXM and (3) of filings required under Section 16 and Section 13(d) of the Exchange
Act in connection with the Transactions, (C) prior to the Split-Off Effective time, the filing with the Secretary of State of the
State of Delaware of the SplitCo A&R Charter, (D) after the Merger Effective Time, the filing of a registration statement on
Form S-8 by SplitCo with respect to the shares of SplitCo Common Stock issuable upon exercise of the SiriusXM Stock Options assumed
by SplitCo and issuable upon exercise of the SplitCo option awards and as to which Form S-8 is available, (E) other filings
required under, and compliance with other applicable requirements of, the Exchange Act and the rules of Nasdaq, (F) filings
by SiriusXM required under, and compliance with other applicable requirements of, the HSR Act and the rules and regulations promulgated
thereunder, and any similar Laws of foreign jurisdictions and (G) approval of the Transactions under the Communications Act (the
“SiriusXM FCC Approvals” and collectively with the Liberty FCC Approvals and the SplitCo FCC Approvals, the “Requisite
FCC Approvals”) and (y) where the failure to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications would not, individually or in the aggregate, have a SiriusXM Material Adverse Effect or prevent or materially
delay the performance of this Agreement or the other Transaction Agreements by SiriusXM or the consummation of the Transactions.
(c) The
Special Committee has approved, and declared advisable and in the best interests of SiriusXM and its stockholders (other than Liberty,
SplitCo or any of their respective Subsidiaries), this Agreement, including the Merger, each of the other Transaction Agreements to which
SiriusXM is a party and the Transactions, and has recommended that the Board of Directors of SiriusXM approve this Agreement, including
the Merger, each of the other Transaction Agreements to which SiriusXM is a party and the Transactions. At a meeting of the Board of
Directors of SiriusXM duly called and held, the Board of Directors of SiriusXM unanimously (i) approved and declared advisable and
in the best interests of SiriusXM and its stockholders this Agreement, each of the other Transaction Agreements to which SiriusXM is
a party, and the transactions contemplated hereby and thereby (including the Merger and the other Transactions), and (ii) resolved
to recommend that the stockholders of SiriusXM adopt this Agreement and approve the Merger.
(d) The
affirmative vote (in person or by proxy) or action by written consent of the holders of record of a majority of the shares of SiriusXM
Common Stock outstanding on the record date for such meeting or any adjournment or postponement thereof, or on the date of such written
consent, as applicable, in favor of the adoption of this Agreement is the only vote or approval of the holders of any class or series
of capital stock of SiriusXM which is legally required to adopt this Agreement and approve the Merger.
Section 5.4 SiriusXM
SEC Documents.
(a) As
of their respective dates (or, if amended prior to the date hereof, as of such amendment date), all reports, prospectuses, forms, schedules,
registration statements, proxy statements or information statements required to be filed by SiriusXM under the Securities Act or under
the Exchange Act (the “SiriusXM SEC Documents”) complied in all material respects with the applicable requirements
of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder,
and none of such SiriusXM SEC Documents when filed contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading. Since January 1, 2021, SiriusXM has timely filed all reports and other filings required to be filed with the SEC
under the rules and regulations of the SEC. The books and records of SiriusXM and its Subsidiaries have been, and are being, maintained
in all material respects in accordance with applicable legal and accounting requirements. The audited consolidated financial statements
and unaudited consolidated interim financial statements included in the SiriusXM SEC Documents (including any related notes and schedules)
fairly present in all material respects the financial position of SiriusXM and its consolidated Subsidiaries as of the dates thereof
and the results of operations and changes in financial position or other information included therein for the periods or as of the dates
then ended, subject, where appropriate, to normal, recurring year-end adjustments in each case in accordance with past practice and GAAP
during the periods involved (except as otherwise stated therein) (none of which are material, individually or in the aggregate, to the
Knowledge of SiriusXM).
(b) There
are no Liabilities of SiriusXM and its Subsidiaries that would be required to be disclosed in a balance sheet prepared in accordance
with GAAP, and there is no existing condition, situation or set of circumstances that would reasonably be expected to result in such
a Liability, other than: (i) Liabilities disclosed or provided for in the most recent audited consolidated financial statements
and unaudited consolidated interim financial statements included in the SiriusXM SEC Documents; (ii) Liabilities for Taxes, (iii) the
Liabilities set forth in Section 5.4(b) of the SiriusXM Disclosure Schedule; and (iv) Liabilities incurred in the
ordinary course of business consistent with past practice since the date of the most recent audited or unaudited balance sheet included
in the SiriusXM SEC Documents filed and publicly available prior to the date hereof that have not had and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.5 Information
Supplied. None of the information supplied (or to be supplied) in writing by or on behalf of SiriusXM specifically for inclusion
in or incorporation by reference in, and which is included in or incorporated by reference in (a) the Form S-4, will, at the
time (i) that the Form S-4 or any amendments or supplements thereto are filed with the SEC, (ii) the Form S-4 becomes
effective under the Securities Act, (iii) of the Liberty Stockholders Meeting, (iv) of the Split-Off and (v) of the Merger,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements made therein not misleading, and (b) the Prospectus / Proxy Statement will, on the date it is first mailed
to stockholders of Liberty and at the time of the Liberty Stockholders Meeting (or filing with the SEC (as applicable)), be false or
misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication.
Notwithstanding the foregoing, SiriusXM makes no representation or warranty with respect to information supplied by or on behalf of Liberty,
Merger Sub or SplitCo for inclusion or incorporation by reference in any of the foregoing documents.
Section 5.6 Brokers
and Other Advisors. Except for Solomon Partners Securities, LLC (“Solomon”) and Morgan Stanley & Co.
LLC (“Morgan Stanley”), no broker, investment banker, financial advisor or other Person is entitled to any broker’s,
finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses, in connection with the
Transactions based upon arrangements made by or on behalf of SiriusXM or any of its Subsidiaries. SiriusXM has heretofore delivered to
Liberty a correct and complete copy of SiriusXM’s engagement letters with Solomon and Morgan Stanley, each of which describes all
fees payable to Solomon and Morgan Stanley, as applicable, in connection with the Transactions, all agreements under which any such fees
or any expenses are payable and all indemnification and other agreements related to the engagement of Solomon and Morgan Stanley, as
applicable.
Section 5.7 State
Takeover Statutes. No “fair price,” “moratorium,” “control share acquisition” or other similar
antitakeover statute or regulation enacted under state or federal Laws in the United States applicable to SiriusXM is applicable to the
Transactions.
Section 5.8 Tax
Matters.
(a) Except
as would not reasonably be expected to have a SiriusXM Material Adverse Effect:
(i) (A) All
Tax Returns required to be filed with any Taxing Authority by or on behalf of SiriusXM or any of its Subsidiaries (other than Tax Returns
of Liberty Combined Groups) have been timely filed when due (taking into account any extension of time within which to file) in accordance
with all applicable Laws; (B) all such Tax Returns are true, accurate and complete in all respects and have been prepared in substantial
compliance with all applicable Laws; (C) all Taxes due and payable (including any Taxes that are required to be collected, deducted
or withheld in connection with any amounts paid or owing to, or received or owing from, any employee, creditor, independent contractor
or other third party) by SiriusXM or any of its Subsidiaries have been timely paid (or collected or withheld and remitted) to the appropriate
Taxing Authority (other than any Taxes due on Tax Returns of Liberty Combined Groups), except for Taxes or Tax matters being contested
in good faith and for which adequate reserves have been established in accordance with GAAP; (D) no written claim has been made
by any Taxing Authority in a jurisdiction where a Tax Return is not filed by or on behalf of SiriusXM or any of its Subsidiaries that
SiriusXM or any of its Subsidiaries is, or may be, subject to Tax by or required to file or be included in a Tax Return in that jurisdiction;
and (E) there are no Liens on any of the assets of SiriusXM or any of its Subsidiaries that arose in connection with any failure
(or alleged failure) to pay any Tax (except for Liens that arise by operation of Law for Taxes not yet due and payable, and Liens for
Taxes due on Tax Returns of Liberty Combined Groups);
(ii) All
applicable Laws relating to the payment and withholding of Taxes by SiriusXM or any of its Subsidiaries have been complied with and all
amounts required to be so withheld and paid over under all applicable Laws have been, within the time and the manner prescribed by applicable
Law, withheld from and paid over to the proper Taxing Authorities;
(iii) (A) No
outstanding written claim has been received by, and no audit, Action, suit or proceeding is in progress, against or with respect to SiriusXM
or any of its Subsidiaries in respect of any Tax; and (B) all deficiencies, assessments or proposed adjustments asserted against
SiriusXM or any of its Subsidiaries by any Taxing Authority have been paid or fully and finally settled;
(iv) None
of SiriusXM or any of its Subsidiaries (A) is a party to any tax sharing, tax allocation or tax indemnification agreement (other
than the Sirius/Liberty Tax Sharing Agreement) or (B) has any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6
(or any similar provision of state, local, or foreign Law) or as a transferee or successor, except for such liability arising from membership
in a SiriusXM Combined Group or a Liberty Combined Group;
(v) Neither
SiriusXM nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations
Section 1.6011-4(b)(2); and
(vi) Neither
SiriusXM nor any of its Subsidiaries is a party to or bound by any advance pricing agreement, closing agreement or other agreement or
ruling relating to Taxes with any Taxing Authority that will remain in effect with respect to SiriusXM or any of its Subsidiaries after
the Closing; and
(vii) Other
than in connection with the ABHI Split-Off or the Split-Off, during the two-year period ending on the date of this Agreement, neither
SiriusXM nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation”
in a distribution of stock qualifying or intended to qualify for tax-free treatment under Section 355(a) of the Code.
(b) SiriusXM
has complied in all material respects with its obligations under the Sirius/Liberty Tax Sharing Agreement.
(c) The
representations and statements set forth in the SiriusXM Split-Off Representation Letter are true, correct and complete in all material
respects; provided that for all purposes of this Agreement, this representation 5.8(c) shall be deemed made only on the Closing
Date.
(d) As
of the date of this Agreement, SiriusXM is not aware of any fact, agreement, plan or other circumstance that could reasonably be expected
to (i) prevent or preclude the exchanges of SiriusXM Common Stock for the Merger Consideration pursuant to the Merger, taken together
with the Contribution, from qualifying for the Merger Intended Tax Treatment, (ii) cause the Split-Off to fail to qualify for the
Split-Off Intended Tax Treatment or (iii) prevent or preclude SiriusXM from delivering the SiriusXM Split-Off Representation Letter
or the SiriusXM Merger Representation Letter.
Section 5.9 Opinion
of Financial Advisor. The Special Committee has received an opinion of Solomon, financial advisor to the Special Committee, to the
effect that on the date hereof, taking into account the Transactions, the SiriusXM Exchange Ratio is fair, from a financial point of
view, to the holders of SiriusXM Common Stock (other than Liberty or its Subsidiaries).
Section 5.10 No
Liberty Interest. SiriusXM does not Beneficially Own any shares of Liberty Common Stock or any options or other rights to purchase
or receive shares of Liberty Common Stock. SiriusXM has not entered into or acquired any derivative contract with respect to any shares
of Liberty Common Stock or entered into any other hedging or other similar transaction that has the effect of providing SiriusXM with
the economic benefits, voting rights or risks of ownership of any shares of Liberty Common Stock (collectively, a “Liberty Interest”).
Section 5.11 Investigation;
Reliance. SiriusXM hereby acknowledges and agrees that none of Liberty, SplitCo or Merger Sub makes any representations or warranties
to SiriusXM, express or implied, other than those representations and warranties set forth in this Agreement and the other Transaction
Agreements. SiriusXM hereby expressly acknowledges and agrees that, except in the case of fraud or willful breach, none of Liberty, SplitCo,
Merger Sub nor any Person will have or be subject to any liability to SiriusXM or any other Person resulting from any statements or communications
by Liberty, SplitCo or any of their respective Affiliates or Representatives with respect to any matter in connection with its investigation
or evaluation of the Transactions or the SplitCo Business, SplitCo and SplitCo’s Subsidiaries (including any of the assets or liabilities
of the SplitCo Business, SplitCo and SplitCo’s Subsidiaries), including any information, document or material made available in
any offering memorandum, in any “data room,” in any management presentations or in any other form, except for the representations
and warranties expressly set forth in this Agreement and the other Transaction Agreements.
Section 5.12 Financing.
(a) SiriusXM
has delivered to Liberty and SplitCo true and complete copies of an executed debt commitment letter and any related term sheet, dated
as of the date hereof (the “Debt Commitment Letter” or the “Financing Commitments”), from the lenders
party thereto (the “Lenders”), pursuant to which, and subject to the terms and conditions of which, the Lenders have
committed to provide SiriusXM Radio with financing in the amounts described therein (the “Financing”). As of the date
hereof, each of the Financing Commitments is a legal, valid and binding obligation of SiriusXM Radio and, to the Knowledge of SiriusXM,
the Lenders, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws of general applicability affecting creditors’ rights generally and general principles of equity. As
of the date hereof, each of the Financing Commitments is in full force and effect, and none of the Financing Commitments has been withdrawn,
rescinded or terminated or otherwise amended, supplemented or modified in any respect and no waiver has been granted thereunder, no such
amendment, supplement, waiver or modification is contemplated, and, to the Knowledge of SiriusXM, no withdrawal or rescission thereof
is contemplated (it being understood that the exercise of any “market flex” provisions contained in the Fee Letter provided
to Liberty on the date hereof shall not be deemed a withdrawal, rescission, amendment, supplement, modification or waiver). As of the
date hereof, neither SiriusXM Radio, nor to the Knowledge of SiriusXM, any Lender is in breach of any of the material terms or conditions
set forth in any of the Financing Commitments. As of the date hereof, to the knowledge of SiriusXM, assuming the accuracy of the representations
and warranties set forth in Article III and Article IV, there is no fact or occurrence existing on the date hereof that, with
or without notice, lapse of time or both, would reasonably be expected to (A) result in any of the conditions in the Financing Commitments
not being satisfied on a timely basis at or prior to the time that the Closing is required to occur pursuant to the terms of this Agreement
or (B) constitute a breach by SiriusXM Radio or any Lender under the terms and conditions of the Debt Commitment Letter. As of the
date hereof, no Lender has notified SiriusXM or SiriusXM Radio of its intention to terminate any Financing Commitments or not provide
the Financing. Assuming (1) the Financing is funded in accordance with its terms and conditions and (2) the satisfaction of
the conditions to each of SiriusXM’s obligations to consummate the Merger set forth in Section 7.1 and Section 7.2, the
Financing will, together with other funds available to SiriusXM, provide SiriusXM and its Subsidiaries with cash proceeds on the Closing
Date sufficient for the satisfaction in full of all cash obligations required to consummate the Transactions on the Closing Date including,
but not limited to, payment of any fees and expenses due and owing under the Debt Commitment Letter and Fee Letter on the Closing Date
(such amounts, collectively, the “Financed Amounts”). SiriusXM Radio has paid in full any and all commitment or other
fees required by the Debt Commitment Letter and the Fee Letter that are due as of the date hereof. As of the date hereof, there are no
side letters, arrangements or other agreements, Contracts or arrangements of any kind relating to the Financing (other than as set forth
in the Debt Commitment Letters, the Fee Letter and the Engagement Letters) that could affect the availability, conditionality, enforceability
or aggregate principal amount of the Financing contemplated by the Debt Commitment Letter. As of the date hereof, there are no conditions
precedent related to the funding of the full amount of the Financing or any contingencies that would permit the Lenders to reduce the
total amount of the Financing below the amount necessary to pay the Financed Amounts (including any condition or other contingency relating
to the amount or availability of the Financing pursuant to any “flex” provision), other than as explicitly set forth in the
Financing Commitments.
(b) SiriusXM
has delivered to Liberty and SplitCo true and complete copies of (i) executed engagement letters and any related term sheet, dated
as of the date hereof (the “Engagement Letters”), from the parties thereto, pursuant to which, and subject to the
terms and conditions of which, SiriusXM Radio proposes to obtaining debt financing in an amount equal to the Financed Amount in lieu
of the Financing (the “Alternative Financing”) and (ii) all fee letters (collectively, the “Fee Letter”)
relating to the Debt Commitment Letter and the Engagement Letters (if any).
(c) In
no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing or the Alternative
Financing) by SiriusXM or any of its respective Affiliates or any other financing or other transactions be a condition to any of SiriusXM’s
obligations under this Agreement.
ARTICLE VI.
Additional Covenants and Agreements
Section 6.1 Preparation
of the Form S-4 and Prospectus / Proxy Statement.
(a) As
soon as reasonably practicable following the date of this Agreement, Liberty and SplitCo shall prepare, and SiriusXM shall assist and
contribute to such preparation, and SplitCo shall file with the SEC the Form S-4, in which the Prospectus / Proxy Statement will
be included. Each of Liberty and SplitCo shall use its reasonable best efforts to have the Form S-4 declared effective under the
Securities Act as promptly as practicable after such filing and keep the Form S-4 effective for so long as necessary to consummate
the Split Off and the Merger. SplitCo shall also take any reasonable action (other than qualifying to do business in any jurisdiction
in which SiriusXM is not now so qualified or filing a general consent to service of process) required to be taken under any applicable
state securities Laws in connection with the issuance of shares of SplitCo Common Stock in the Split-Off and the Merger, and Liberty
shall furnish all information concerning Liberty and the holders of shares of Liberty SiriusXM Common Stock as may be reasonably required
in connection with the Form S-4. SiriusXM shall furnish to Liberty and SplitCo all information concerning SiriusXM and the holders
of shares of SiriusXM Common Stock, and provide such other assistance as may be reasonably requested by Liberty or SplitCo in connection
with the Form S-4, including the Prospectus / Proxy Statement. Liberty (i) shall provide SiriusXM (through the Special Committee)
with reasonable opportunity to review and comment on the Form S-4 (including the audited financial statements of SplitCo and any
pro forma financial information provided by Liberty and SplitCo that are required to be included therein), and any amendment or supplement
thereto, prior to the filing thereof, and (ii) shall not file or mail the Form S-4 or respond to the SEC prior to receiving
the approval of SiriusXM (through the Special Committee), which approval shall not be unreasonably withheld, conditioned or delayed.
If at any time prior to the Split-Off Effective Time any information relating to Liberty, SplitCo or SiriusXM, or any of their respective
Affiliates, directors or officers, should be discovered by Liberty, SplitCo or SiriusXM which should be set forth in an amendment or
supplement to the Form S-4 or the Prospectus / Proxy Statement so that the Form S-4 or the Prospectus / Proxy Statement, as
applicable, would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly
notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the
SEC and, to the extent required by Law, disseminated to the holders of Liberty SiriusXM Common Stock and SiriusXM Common Stock. The parties
shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or
the staff of the SEC for amendments or supplements to the Form S-4 or the Prospectus / Proxy Statement or for additional information
and shall supply each other with copies of (x) correspondence between it or any of its Representatives, on the one hand, and the
SEC or the staff of the SEC, on the other hand, with respect to the Form S-4, the Prospectus / Proxy Statement or the Transactions
and (y) all orders of the SEC relating to the Form S-4 and/or the Prospectus / Proxy Statement. Liberty and SplitCo shall mail
the Prospectus / Proxy Statement to the holders of Liberty SiriusXM Common Stock and SiriusXM Common Stock, as applicable, as promptly
as practicable after the Form S-4 is declared effective under the Securities Act. Each of Liberty, SplitCo and SiriusXM shall furnish
such information and reasonably assist and cooperate with each other to complete the mailing of the Prospectus / Proxy Statement to the
holders of SiriusXM Common Stock and Liberty SiriusXM Common Stock, as applicable. In particular (but without limitation to the foregoing),
SiriusXM shall use reasonable efforts to provide Liberty and SplitCo a list of names and contact information for each of SiriusXM’s
stockholders and other information reasonably requested by Liberty and SplitCo, to complete the mailing of the Prospectus / Proxy Statement
to the holders of SiriusXM Common Stock.
(b) Liberty
shall, as soon as practicable following the date of effectiveness of the Form S-4 (but in no event later than forty-five (45) days
after such date), duly call, set a meeting date and record date, give notice of, convene and hold a meeting of the holders of the Series A
Liberty SiriusXM Common Stock and Series B Liberty SiriusXM Common Stock (the “Liberty Stockholders Meeting”),
which shall be held for the purpose of obtaining the Liberty Stockholder Approval. Subject to Section 6.4(c) hereof, Liberty’s
Board of Directors shall recommend (the “Liberty Board Recommendation”) that the holders of the Series A Liberty
SiriusXM Common Stock and Series B Liberty SiriusXM Common Stock approve the Split-Off pursuant to the Liberty Stockholder Approval.
Without limiting the generality of the foregoing (but subject to Section 6.4), Liberty’s obligations pursuant to the first
sentence of this Section 6.1(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication
to Liberty of any SplitCo Takeover Proposal or (ii) the withdrawal or modification of (A) the Liberty Board Recommendation
or (B) such Board of Directors’ approval of the Transaction Agreements or the Transactions. The Prospectus / Proxy Statement
shall include (subject to Section 6.4(c) hereof) the Liberty Board Recommendation. Notwithstanding anything to the contrary
contained in this Agreement, if Liberty reasonably believes, after consulting with its outside counsel that (x) it is necessary
to postpone or adjourn the Liberty Stockholders Meeting to ensure that any required supplement or amendment to the Prospectus / Proxy
Statement is provided to the stockholders of Liberty within a reasonable amount of time in advance of the Liberty Stockholders Meeting
or (y) (A) it will not receive proxies or votes sufficient to obtain the Liberty Stockholder Approval, whether or not a quorum
is present, or (B) it will not have sufficient Liberty Common Stock represented (either in person or by proxy) to constitute a quorum
necessary to conduct the business of the Liberty Stockholders Meeting, then Liberty may postpone or adjourn, or make one or more successive
postponements or adjournments of, the Liberty Stockholders Meeting; provided that in no event shall the Liberty Stockholders Meeting
be postponed or adjourned for more than ten (10) Business Days in the aggregate without the prior written consent of SiriusXM (through
the Special Committee); provided further, Liberty shall keep SiriusXM and the Special Committee informed on a reasonably current
basis as to the proxy solicitation process for the Liberty Stockholders Meeting (including interim results).
Section 6.2 Conduct
of Business by SplitCo and Liberty Pending the Transactions.
(a) Except
as expressly permitted by this Agreement, any of the other Transaction Agreements or as required by applicable Law, during the period
from the date of this Agreement until the earlier of the Merger Effective Time and the termination of this Agreement in accordance with
Article IX, each of Liberty (with respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries only) and SplitCo shall,
and shall cause each of their respective Subsidiaries (with respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries
only) to, (i) conduct its business in the ordinary course of business consistent in all material respects with past practice, (ii) comply
in all material respects with all applicable Laws and the requirements of all material Contracts to which SplitCo is a party, (iii) use
reasonable best efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships
with it and retain the services of its present officers and key employees, in each case, to the end that its goodwill and ongoing business
shall be unimpaired at the Merger Effective Time, and (iv) keep in full force and effect all material insurance policies maintained,
other than changes to such policies made in the ordinary course of business. Without limiting the generality of the foregoing, except
as (A) expressly permitted by this Agreement (including in connection with the Split-Off) or any of the other Transaction Agreements,
(B) required by applicable Law or (C) set forth in Section 6.2(a) of the Liberty Disclosure Schedule, during
the period from the date of this Agreement to the Merger Effective Time, each of Liberty (with respect to the SplitCo Business, SplitCo
and SplitCo’s Subsidiaries only) and SplitCo shall not, and shall not permit any of their respective Subsidiaries (with respect
to the SplitCo Business only) to, without the prior written consent of the Special Committee (on behalf of SiriusXM) (such consent not
to be unreasonably delayed, withheld or conditioned):
(i) issue,
sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of Liberty SiriusXM
Common Stock, SplitCo Common Stock or any other voting securities or equity interests in Liberty SiriusXM, SplitCo or any Subsidiary
of SplitCo or any class, or any subscriptions, options, calls, warrants, convertible or exchangeable securities or other rights, commitments
or agreements of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest), in
Liberty (with respect to Liberty SiriusXM), SplitCo or any Subsidiary of SplitCo, other than (A) issuances of shares of Liberty
SiriusXM Common Stock upon conversion or exchange of any outstanding convertible or exchangeable securities with respect thereto identified
on Section 6.2(a)(i) of the Liberty Disclosure Schedule or (B) pursuant to Liberty SiriusXM Equity Awards governed
by a Liberty Stock Plan or SplitCo Equity Awards governed by the SplitCo Transitional Plan that, in each case, (x) are outstanding
on the date of this Agreement or are granted following the date hereof as permitted by Section 6.2(a)(i) of the Liberty
Disclosure Schedule and (y) are issued in accordance with the terms thereof;
(ii) declare,
set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of Liberty SiriusXM Common Stock
or SplitCo’s capital stock or otherwise make any payments to holders of Liberty SiriusXM Common Stock or SplitCo’s stockholders
in their capacity as such;
(iii) split,
combine, subdivide or reclassify any shares of Liberty SiriusXM Common Stock or SplitCo capital stock;
(iv) incur
or assume any indebtedness for borrowed money or guarantee any indebtedness for borrowed money (or enter into a “keep well”
or similar agreement) or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities
of Liberty, SplitCo or any of their respective Subsidiaries, other than (A) the assumption by SplitCo of the 2.75% Exchangeable
Senior Debentures and the 3.75% Convertible Senior Notes, to the extent outstanding, as expressly contemplated by the Reorganization
Agreement, (B) without duplication of the amounts included in this clause (B) or in clause (D) of this paragraph, or in
clauses (B) or (D) of Section 6.2(a)(xii), prior to the Measurement Date, the incurrence of indebtedness in an aggregate
principal amount under the Margin Loan Agreement equal to the sum of amounts used or that will be used (1) to pay off amounts that
would otherwise be taken into account in the calculation of LSXM Net Liabilities Share Adjustment, (2) to pay Tax liabilities, (3) to
pay ordinary course expenses, (4) as needed to fund any actions required to be taken by Liberty or SplitCo pursuant to the Transaction
Agreements and (5) for general purposes in an aggregate principal amount not to exceed $50 million, (C) the incurrence of indebtedness
by SplitCo under the SiriusXM Promissory Note, (D) without duplication of the amounts included in this clause (D) or in clause
(B) of this paragraph, or in clauses (B) or (D) of Section 6.2(a)(xii), prior to the Measurement Date, the incurrence
of indebtedness that will be repaid on or prior to the Closing in an aggregate principal amount equal to the sum of amounts used or that
will be used (1) to pay off amounts that would otherwise be taken into account in the calculation of LSXM Net Liabilities Share
Adjustment, (2) to pay Tax liabilities, (3) to pay ordinary course expenses, (4) as needed to fund any actions required
to be taken by Liberty or SplitCo pursuant to the Transaction Agreements and (5) for general purposes in an aggregate principal
amount not to exceed $50 million or (E) prior to the Measurement Date, any Refinancing Indebtedness;
(v) directly
or indirectly acquire by any manner any equity interests in or material assets of any Person, division or business;
(vi) make
any investment (by contribution to capital, property transfers, purchase of securities or otherwise) in, or loan or advance (other than
travel and similar advances to its employees in the ordinary course of business consistent with past practice) to, any Person;
(vii) amend
(A) the SplitCo Charter Documents, (B) the Liberty Charter Documents with respect to Liberty SiriusXM or (C) the SplitCo
Subsidiary Documents (other than the Marginco Operating Amendment);
(viii) adopt
a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other
reorganization (other than as expressly contemplated by the Restructuring);
(ix) settle
or compromise (or amend any settlement or compromise related to) any Action related to the SplitCo Business, SplitCo or its Subsidiaries
other than (A) in accordance with the terms of Section 4.1(e) of the Reorganization Agreement and (B) any amendments
to the Agreed Settlement (as defined in the Reorganization Agreement) to the extent such amendments would not have an adverse impact
on SiriusXM or the holders of SiriusXM Common Stock other than Liberty and its Affiliates;
(x) except
as expressly permitted pursuant to Section 6.2(b) and Section 6.2(a)(xiii), but subject to Section 6.18, use, encumber,
or transfer or attribute out of Liberty SiriusXM any assets that would be SplitCo Assets other than cash prior to the Measurement Date
(as defined in the Reorganization Agreement);
(xi) pay,
discharge or satisfy Liabilities, other than (A) the payment, discharge or satisfaction of Liabilities (1) reflected or reserved
against in the financial statements included in the Liberty SEC Documents, (2) incurred since the Liberty Balance Sheet Date in
the ordinary course of business consistent with past practice, (3) otherwise in the ordinary course of business consistent with
past practice, (4) in respect of Taxes that are due and payable under applicable Law, (B) scheduled repayments of indebtedness
(1) reflected in the financial statements included in the Liberty SEC Documents or (2) in the ordinary course of business consistent
with past practice or (C) any indebtedness of Liberty (with respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries),
SplitCo or their respective Subsidiaries (with respect to the SplitCo Business);
(xii) make
any changes in the capital structure of SplitCo or any of its Subsidiaries except as permitted pursuant to Section 6.2(a)(xi), and
other than (A) the assumption by SplitCo of the 2.75% Exchangeable Senior Debentures and the 3.75% Convertible Senior Notes, to
the extent outstanding, as expressly contemplated by the Reorganization Agreement, (B) without duplication of the amounts included
in this clause (B) or in clause (D) of this paragraph, or in clauses (B) or (D) of Section 6.2(a)(iv), prior
to the Measurement Date, the incurrence of indebtedness in an aggregate principal amount under the Margin Loan Agreement equal to the
sum of amounts used or that will be used (1) to pay off amounts that would otherwise be taken into account in the calculation of
LSXM Net Liabilities Share Adjustment, (2) to pay Tax liabilities, (3) to pay ordinary course expenses, (4) as needed
to fund any actions required to be taken by Liberty or SplitCo pursuant to the Transaction Agreements and (5) for general purposes
in an aggregate principal amount not to exceed $50 million, (C) the incurrence of indebtedness by SplitCo of indebtedness under
the SiriusXM Promissory Note, (D) without duplication of the amounts included in this clause (D) or in clause (B) of this
paragraph, or in clauses (B) or (D) of Section 6.2(a)(iv), prior to the Measurement Date, the incurrence of indebtedness
that will be repaid on or prior to the Closing in an aggregate principal amount equal to the sum of amounts used or that will be used
(1) to pay off amounts that would otherwise be taken into account in the calculation of LSXM Net Liabilities Share Adjustment, (2) to
pay Tax liabilities, (3) to pay ordinary course expenses, (4) as needed to fund any actions required to be taken by Liberty
or SplitCo pursuant to the Transaction Agreements and (5) for general purposes in an aggregate principal amount not to exceed $50
million, or (E) prior to the Measurement Date, the incurrence of any Refinancing Indebtedness;
(xiii) sell,
transfer, lease, mortgage, encumber or otherwise dispose of or subject to any Lien any of the shares of SiriusXM capital stock Beneficially
Owned by Liberty (excluding, for the avoidance of doubt, any shares owned by the executive officers and directors of Liberty in their
respective individual capacities or through entities for estate planning purposes) other than pledging shares of SiriusXM under the Margin
Loan Agreement or any indebtedness incurred pursuant to Section 6.2(a)(iv)(D) that will be repaid on or prior to the Closing
Date;
(xiv) take
any action, or fail to take any action, that would result in Liberty being in breach of its obligations under the Sirius/Liberty Tax
Sharing Agreement in any material respect;
(xv) make
any change to the Liberty Tax Sharing Policies in any material respect that would (or would reasonably be expected to) adversely impact
SiriusXM and its Subsidiaries or Liberty SiriusXM;
(xvi) except
to the extent such action would not reasonably be expected to materially and adversely impact SplitCo, SiriusXM or their respective Subsidiaries
following the Split-Off, (A) make, change or revoke any material Tax election, (B) settle or compromise any material Tax liability
with any Governmental Authority, (C) surrender any right to claim a material refund of Taxes, (D) consent to any extension
or waiver of the limitation period applicable to any material Tax claim or assessment, (E) change any material method of Tax accounting,
(F) enter into any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or foreign
law), (G) apply for any Tax ruling or (H) file any amended material Tax Return;
(xvii) to
the extent outstanding, take any action that would result in a change to the conversion rate of the 3.75% Convertible Senior Notes from
the conversion rate in effect as of the date hereof (other than pursuant to the terms of the 3.75% Convertible Senior Notes Indenture
required as a result of any action by SiriusXM and, for the avoidance of doubt, any required change in connection with the Transactions);
(xviii) to
the extent outstanding, take any action that would result in a change to the exchange rate of the 2.75% Exchangeable Senior Debentures
from the exchange rate in effect as of the date hereof (other than pursuant to the terms of the 2.75% Exchangeable Senior Debentures
Indenture required as a result of any action by SiriusXM and, for the avoidance of doubt, any required change in connection with the
Transactions); or
(xix) agree,
in writing or otherwise, to take any of the foregoing actions;
(b) Notwithstanding
the foregoing, Liberty, SplitCo and SiriusXM agree it is their understanding and intention that:
(i) prior
to the Split-Off Effective Time and other than its business and operations conducted by SiriusXM and its Subsidiaries, SplitCo will not
conduct any business or operations other than in connection with the performance of its obligations hereunder and under the other Transaction
Agreements; and
(ii) on
or prior to the Measurement Date (and following the Measurement Date and prior to the Split-Off Effective Time only to the extent accounted
for in the final and binding calculation of LSXM Net Liabilities Share Adjustment pursuant to Section 4.2 of the Reorganization
Agreement), SplitCo and/or Liberty (with respect to Liberty SiriusXM) will be permitted, directly or indirectly, to:
(A) pay
to Liberty (or reduce the amount of cash transferred by Liberty to SplitCo in connection with the Contribution by the amount of) Liberty
SiriusXM’s customary allocation of: corporate overhead charges, group insurance, payroll and employee benefit expenses and fees,
costs and expenses of legal and accounting professionals and other professional service providers;
(B) repay
to Liberty (or reduce the amount of cash transferred by Liberty to SplitCo in connection with the Contribution by the amount of) advances
made in connection with cash management procedures;
(C) pay
to Liberty (or reduce the amount of cash transferred by Liberty to SplitCo in connection with the Contribution by the amount of) taxes
and other amounts attributed to Liberty SiriusXM pursuant to the Liberty Tax Sharing Policies and pay any amounts due to SiriusXM pursuant
to the Sirius/Liberty Tax Sharing Agreement;
(D) pay
to Liberty (or reduce the amount of cash transferred by Liberty to SplitCo in connection with the Contribution by the amount of) amounts
described in Section 6.2(b)(ii)(D) of the Liberty Disclosure Schedule; and
(E) pay
(or reduce the amount of cash transferred by Liberty to SplitCo in connection with the Contribution by the amount of) amounts required
to be paid to Liberty in accordance with the terms of any Transaction Agreement (including, to the extent paid by Liberty, SplitCo’s
applicable portion of the fees, costs and expenses of legal and accounting professionals incurred in connection with SplitCo’s
status as a publicly traded company).
Notwithstanding anything in this Section 6.2
to the contrary, in no event shall any action or omission of an action by SiriusXM or any of its Subsidiaries constitute a breach of
this Section 6.2 by Liberty, SplitCo or any of their respective Subsidiaries.
Section 6.3 Conduct
of Business by SiriusXM Pending the Transactions.
(a) Except
as (i) expressly permitted by this Agreement or any of the other Transaction Agreements, (ii) required by applicable Law or
(iii) set forth in Section 6.3(a) of the SiriusXM Disclosure Schedule, during the period from the date of this
Agreement to the Merger Effective Time, SiriusXM shall not, and shall not permit any of its Subsidiaries to, without the prior written
consent of Liberty and SplitCo (such consent not to be unreasonably delayed, withheld or conditioned):
(i) issue,
sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of SiriusXM
Common Stock, voting securities or equity interests or capital stock, voting securities or equity interests of any Subsidiary of SiriusXM
of any class, or any subscriptions, options, warrants, calls, convertible or exchangeable securities or other rights, commitments or
agreements of any kind to acquire any shares of capital stock, or any other ownership interest (including any phantom interest), in SiriusXM
or any of its Subsidiaries, other than (A) pursuant to this Agreement or (B) pursuant to a SiriusXM Equity Award granted under
a SiriusXM Stock Plan, which SiriusXM Equity Award (x) is outstanding on the date of this Agreement or is granted following the
date hereof as permitted by Section 6.3(a)(i) of the SiriusXM Disclosure Schedule and (y) is issued in accordance
with the terms thereof;
(ii) declare,
set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of SiriusXM Common Stock or otherwise
make any payments to holders of SiriusXM Common Stock in their capacity as such, other than the payment of quarterly dividends in the
ordinary course of business consistent with past practice;
(iii) split,
combine, subdivide or reclassify any shares of SiriusXM Common Stock;
(iv) other
than in the ordinary course of business consistent with past practice, materially amend (including by reducing an exercise price or extending
a term) or materially waive any of its rights under, or materially accelerate the vesting under, any provision of the SiriusXM Stock
Plans or any agreement evidencing any stock option, restricted stock unit or other right to acquire capital stock of SiriusXM or any
similar or related Contract;
(v) make
any investment (by contribution to capital, property transfers, purchase of securities or otherwise) in any Person (other than a Subsidiary
of SiriusXM) if such investment would reasonably be expected to impede or delay, in any material respect, the ability of the parties
to satisfy any of the conditions to the Merger set forth in this Agreement;
(vi) settle
or compromise the Specified Litigation Matter;
(vii) take
any action, or fail to take any action, that would result in SiriusXM being in breach of its obligations under the Sirius/Liberty Tax
Sharing Agreement in any material respect;
(viii) except
to the extent such action would not reasonably be expected to materially and adversely impact SplitCo, SiriusXM or their respective Subsidiaries
following the Split-Off, (A) make, change or revoke any material Tax election, (B) settle or compromise any material Tax liability
with any Governmental Authority, (C) surrender any right to claim a material refund of Taxes, (D) consent to any extension
or waiver of the limitation period applicable to any material Tax claim or assessment, (E) change any material method of Tax accounting,
(F) enter into any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or foreign
law), (G) apply for any Tax ruling or (H) file any amended material Tax Return; or
(ix) enter
into a new line of business or cease, abandon, discontinue, dispose of, or materially modify operations with respect to, any material
existing line of business; or
(x) agree,
in writing or otherwise, to take any of the foregoing actions.
Section 6.4 No
Solicitation by Liberty and SplitCo; Etc.
(a) From
the date of this Agreement until the Merger Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX,
(i) each of Liberty and SplitCo shall, and shall cause their respective Subsidiaries and Representatives to, (A) immediately
cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person with respect to any SplitCo
Takeover Proposal and (B) promptly request each such Person that has, within the twelve (12) months preceding the date hereof, executed
a confidentiality agreement in connection with its consideration of any SplitCo Takeover Proposal to return or destroy all confidential
information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of Liberty, SplitCo
or any of their respective Subsidiaries and promptly terminate access by all Persons (other than SiriusXM and their Subsidiaries and
Representatives) to any physical or electronic data rooms relating to a possible SplitCo Takeover Proposal and (ii) each of Liberty
and SplitCo shall not, and shall cause their respective Subsidiaries and their Representatives not to, directly or indirectly (A) solicit,
initiate, cause, facilitate or encourage (including by way of furnishing non-public information) any inquiries, proposals or announcements
that constitute, or could reasonably be expected to lead to, any SplitCo Takeover Proposal, (B) participate in any discussions or
negotiations with any third party regarding any SplitCo Takeover Proposal, (C) enter into any letter of intent, agreement, arrangement
or other understanding related to any SplitCo Takeover Proposal, (D) take any action to make the provisions of any “fair price,”
“moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover
statute or regulation (including any transaction under, or a Person becoming an “interested shareholder” under, Section 203
of the DGCL), or any restrictive provision of any applicable anti-takeover provision in Liberty’s or SplitCo’s certificate
of incorporation or bylaws, inapplicable to any transactions contemplated by a SplitCo Takeover Proposal (and, to the extent permitted
thereunder, Liberty and SplitCo shall promptly take all steps necessary to terminate any waiver that may have been heretofore granted,
to any Person other than SiriusXM, under any such provisions), (E) except as required by applicable Law, waive any provisions of
any confidentiality or standstill agreement (or any similar agreement) to which Liberty, SplitCo or any of their respective Subsidiaries
is a party relating to any such SplitCo Takeover Proposal, (F) furnish any non-public information with respect to Liberty, SplitCo
and their respective Subsidiaries to any Person or group (and their respective Representatives and Affiliates) making (or who would reasonably
be expected to make) any such SplitCo Takeover Proposal or (G) resolve, propose or agree to do any of the foregoing. Without limiting
the foregoing, it is understood that any violation of the foregoing restrictions by SplitCo, Liberty’s Subsidiaries, SplitCo’s
Subsidiaries, Liberty’s Representatives or SplitCo’s Representatives shall be deemed to be a breach of this Section 6.4
by Liberty if such violation occurs prior to the Split-Off Effective Time.
(b) In
addition to the other obligations of Liberty set forth in this Section 6.4, Liberty shall promptly advise SiriusXM (through the
Special Committee), orally and in writing, and in no event later than twenty-four (24) hours after receipt, if any proposal, offer, inquiry
or other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or
continued with, Liberty in respect of any SplitCo Takeover Proposal, and shall, in any such notice to SiriusXM (through the Special Committee),
indicate (i) the identity of the Person making such proposal, offer, inquiry or other contact and (ii) the terms and conditions
of any proposals or offers or the nature of any inquiries or contacts (and shall include with such notice copies of any written materials
received from or on behalf of such Person relating to such proposal, offer, inquiry or request), and thereafter shall promptly keep SiriusXM
fully informed of all material developments affecting the status and terms of any such proposals, offers, inquiries or requests (and
Liberty shall provide SiriusXM with copies of any additional written materials received that relate to such proposals, offers, inquiries
or requests) and the status of any such discussions or negotiations.
(c) Except
as expressly permitted by this Section 6.4(c), neither the Board of Directors of Liberty nor any committee thereof shall (i)(A) withdraw
or modify, or propose publicly to withdraw or modify, in a manner adverse to SiriusXM, the Liberty Board Recommendation or the approval
or declaration of advisability by such Board of Directors of the Reorganization Agreement and the Transactions (including the Merger
and the Split-Off) or (B) approve or recommend, or propose publicly to approve or recommend, any SplitCo Takeover Proposal (any
action described in this clause (i) being referred to as a “Liberty Adverse Recommendation Change”), (ii) approve
or recommend, or propose publicly to approve or recommend, or cause or authorize Liberty, SplitCo or any of their respective Subsidiaries
to enter into, any letter of intent, agreement in principle, memorandum of understanding, merger, acquisition, purchase or joint venture
agreement or other agreement related to any SplitCo Takeover Proposal, or (iii) recommend a SplitCo Takeover Proposal to the stockholders
of the Liberty SiriusXM Common Stock; provided, however, that the Board of Directors of Liberty may effect a Liberty Adverse
Recommendation Change with respect to the Liberty Board Recommendation if it determines, in good faith, after consulting with outside
legal counsel, that the failure to take such action would result in a violation of its fiduciary duties under applicable Law.
(d) For
purposes of this Agreement:
“SplitCo Takeover
Proposal” means any inquiry, proposal or offer from any Person or “group” (as defined in Section 13(d) of
the Exchange Act), other than SiriusXM and its Subsidiaries, relating to any (A) direct or indirect acquisition (whether in a single
transaction or a series of related transactions) of assets of the SplitCo Business or SplitCo and its Subsidiaries (including securities
of its Subsidiaries) equal to 10% or more of the SplitCo Business’ or SplitCo’s and its Subsidiaries’ consolidated
assets or to which 10% or more of the SplitCo Business’ or SplitCo’s and its Subsidiaries’ revenues or earnings on
a consolidated basis are attributable, (B) direct or indirect acquisition (whether in a single transaction or a series of related
transactions) of Beneficial Ownership of any shares of SiriusXM capital stock Beneficially Owned by Liberty (excluding, for the avoidance
of doubt, any shares owned by the executive officers and directors of Liberty in their respective individual capacities or through entities
for estate planning purposes) or 10% or more of any class of equity securities of SplitCo, (C) tender offer or exchange offer that
if consummated would result in any Person or “group” (as defined in Section 13(d) of the Exchange Act) Beneficially
Owning 10% or more of any class of equity securities of SplitCo or (D) merger, consolidation, share exchange, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the SplitCo Business, SplitCo or any of its Subsidiaries,
in each case, other than the Transactions.
(e) Nothing
in this Section 6.4 shall prohibit the Board of Directors of Liberty or SplitCo from taking and disclosing to holders of Liberty
Common Stock or SplitCo Common Stock, respectively, a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of
Regulation M-A promulgated under the Exchange Act if such Board determines in good faith, after consultation with outside counsel, that
failure to so disclose such position would constitute a violation of applicable Law; provided, however, that in no event
shall Liberty, SplitCo, or their respective Boards of Directors or any committee thereof take, or agree or resolve to take, any action
prohibited by Section 6.4(c).
Section 6.5 No
Solicitation by SiriusXM; Etc.
(a) From
the date of this Agreement until the Merger Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX,
(i) SiriusXM shall, and shall cause its Subsidiaries and its Representatives to, (A) immediately cease and cause to be terminated
any and all existing activities, discussions or negotiations with any Person with respect to any SiriusXM Takeover Proposal and (B) promptly
request each such Person that has, within the twelve (12) months preceding the date hereof, executed a confidentiality agreement in connection
with its consideration of any SiriusXM Takeover Proposal to return or destroy all confidential information furnished prior to the execution
of this Agreement to or for the benefit of such Person by or on behalf of SiriusXM or any of its Subsidiaries and promptly terminate
access by all Persons (other than Liberty, SplitCo and their Subsidiaries and Representatives) to any physical or electronic data rooms
relating to a possible SiriusXM Takeover Proposal and (ii) SiriusXM shall not, and shall cause its Subsidiaries and its Representatives
(the “SiriusXM Representatives”) not to, directly or indirectly (A) solicit, initiate, cause, facilitate or encourage
(including by way of furnishing non-public information) any inquiries, proposals or announcements that constitute, or could reasonably
be expected to lead to, any SiriusXM Takeover Proposal, (B) participate in any discussions or negotiations with any third party
regarding any SiriusXM Takeover Proposal, (C) enter into any letter of intent, agreement, arrangement or other understanding related
to any SiriusXM Takeover Proposal, (D) take any action to make the provisions of any “fair price,” “moratorium,”
“control share acquisition,” “business combination” or other similar anti-takeover statute or regulation, or
any restrictive provision of any applicable anti-takeover provision in SiriusXM’s certificate of incorporation or bylaws, inapplicable
to any transactions contemplated by a SiriusXM Takeover Proposal (and, to the extent permitted thereunder, SiriusXM shall promptly take
all steps necessary to terminate any waiver that may have been heretofore granted, to any Person other than Liberty, SplitCo or their
respective Subsidiaries, under any such provisions), (E) except as required by applicable Law, waive any provisions of any confidentiality
or standstill agreement (or any similar agreement) to which SiriusXM or any of its Subsidiaries is a party relating to any such SiriusXM
Takeover Proposal, (F) furnish any non-public information with respect to SiriusXM and its Subsidiaries to any Person or group (and
their respective Representatives and Affiliates) making (or who would reasonably be expected to make) any such SiriusXM Takeover Proposal
or (G) resolve, propose or agree to do any of the foregoing. Without limiting the foregoing, it is understood that any violation
of the foregoing restrictions by SiriusXM’s Subsidiaries or SiriusXM’s Representatives shall be deemed to be a breach of
this Section 6.5 by SiriusXM.
(b) In
addition to the other obligations of SiriusXM set forth in this Section 6.5, SiriusXM shall promptly advise Liberty and SplitCo,
orally and in writing, and in no event later than twenty-four (24) hours after receipt, if any proposal, offer, inquiry or other contact
is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, SiriusXM
in respect of any SiriusXM Takeover Proposal, and shall, in any such notice to Liberty and SplitCo, indicate (i) the identity of
the Person making such proposal, offer, inquiry or other contact and (ii) the terms and conditions of any proposals or offers or
the nature of any inquiries or contacts (and shall include with such notice copies of any written materials received from or on behalf
of such Person relating to such proposal, offer, inquiry or request).
(c) Neither
the Board of Directors of SiriusXM nor any committee thereof shall (i) approve or recommend, or propose publicly to approve or recommend,
any SiriusXM Takeover Proposal), (ii) approve or recommend, or propose publicly to approve or recommend, or cause or authorize SiriusXM
or any of its Subsidiaries to enter into, any letter of intent, agreement in principle, memorandum of understanding, merger, acquisition,
purchase or joint venture agreement or other agreement related to any SiriusXM Takeover Proposal, or (iii) to recommend a SiriusXM
Takeover Proposal to the SiriusXM stockholders.
(d) For
purposes of this Agreement:
“SiriusXM Takeover
Proposal” means any inquiry, proposal or offer from any Person or “group” (as defined in Section 13(d) of
the Exchange Act), other than Liberty, SplitCo and their respective Subsidiaries, relating to any (A) direct or indirect acquisition
(whether in a single transaction or a series of related transactions) of assets of SiriusXM and its Subsidiaries (including securities
of Subsidiaries) equal to 10% or more of SiriusXM’s consolidated assets or to which 10% or more of SiriusXM’s revenues or
earnings on a consolidated basis are attributable, (B) direct or indirect acquisition (whether in a single transaction or a series
of related transactions) of Beneficial Ownership of 10% or more of any class of equity securities of SiriusXM, (C) tender offer
or exchange offer that if consummated would result in any Person or “group” (as defined in Section 13(d) of the
Exchange Act) Beneficially Owning 10% or more of any class of equity securities of SiriusXM or (D) merger, consolidation, share
exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving SiriusXM or any of its Subsidiaries;
in each case, other than the Transactions.
(e) Nothing
in this Section 6.5 shall prohibit the Board of Directors of SiriusXM from taking and disclosing to SiriusXM stockholders a position
contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act if such
Board determines in good faith, after consultation with outside counsel, that failure to so disclose such position would constitute a
violation of applicable Law; provided, however, that in no event shall SiriusXM or its Board of Directors or any committee
thereof take, or agree or resolve to take, any action prohibited by Section 6.5(c).
Section 6.6 Reasonable
Best Efforts.
(a) Subject
to the terms and conditions of this Agreement (including Section 6.6(d)), each of Liberty, SplitCo, Merger Sub and SiriusXM shall
cooperate with the other parties and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts
to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable
to cause the conditions to effect the Merger under Article VII and the conditions to effect the Split-Off under the Reorganization
Agreement to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable,
the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions,
statements, registrations, submissions of information, applications and other documents (including any required or recommended filings
under applicable Antitrust Laws and the Requisite FCC Approvals), and (ii) bring about the end of any applicable waiting periods
or otherwise obtain all approvals, consents, registrations, permits, authorizations and other confirmations from any Governmental Authority
or third party necessary, proper or advisable to consummate the Transactions. For purposes hereof, “Antitrust Laws”
means the Sherman Antitrust Act of 1890, as amended, the Clayton Antitrust Act of 1914, as amended, the HSR Act, the Federal Trade Commission
Act of 1914, as amended, and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through
merger or acquisition.
(b) In
furtherance and not in limitation of the foregoing, each of Liberty, SplitCo and SiriusXM agrees to make necessary filings of a Notification
and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable and in any event within fifteen
(15) Business Days of the date hereof or as required under the HSR Act and to supply as promptly as practicable any additional information
and documentary material that may be requested pursuant to the HSR Act and use its reasonable best efforts to take, or cause to be taken,
all other actions consistent with this Section 6.6 necessary to cause the expiration or termination of the applicable waiting periods
under the HSR Act as soon as practicable.
(c) Each
of Liberty, SplitCo and SiriusXM shall cooperate and use its reasonable best efforts to file the applications as promptly as practicable
and, in any event, within fifteen (15) Business Days of the date hereof and obtain the Requisite FCC Approvals. Each of SiriusXM and
Liberty shall provide to the other a reasonable opportunity to review and comment on each submission to be filed by SiriusXM and/or Liberty
with the FCC in connection with obtaining the Requisite FCC Approvals (an “FCC Submission”) prior to the filing of
such FCC Submission with the FCC. No FCC Submission shall be filed by SiriusXM with the FCC unless, prior to such filing, Liberty and
SplitCo shall have agreed (which agreement shall not be unreasonably withheld, conditioned or delayed) as to the contents of such submission
to the extent that the submission (i) includes statements or representations relating to facts that are or will be under the exclusive
control of Liberty, SplitCo, any of their respective Subsidiaries or any of their respective stockholders, directors or officers or (ii) is
relevant to, or creates, any actual or potential obligations of, or limitations on, Liberty, SplitCo, any of their respective Subsidiaries
or any of their respective stockholders, directors or officers including any such obligations of, or limitations on, SplitCo or its Subsidiaries
under the Reorganization Agreement and other documents related to the Split-Off (each, a “Liberty FCC Issue”); provided,
however, that if the FCC requests same-day filing of an FCC Submission that does not include any material issue or statement related
to a Liberty FCC Issue, then SiriusXM is required only to make a good faith effort to notify Liberty’s and SplitCo’s Representatives
and to give such Representatives an opportunity to review and comment on such submission prior to filing it with the FCC. Neither SiriusXM
nor its Representatives shall initiate any substantive communications with the FCC with respect to the Transactions or the FCC Submission,
including meetings or conferences with FCC personnel, whether telephonically, in person or otherwise, without first notifying Liberty
and SplitCo (or their Representatives) and with respect to communications, meetings or conferences regarding a Liberty FCC Issue giving
Liberty and SplitCo (or their Representatives) a reasonable opportunity to participate, and a reasonable number of their Representatives
shall have an opportunity to participate in all conferences or meetings with FCC personnel that take place in person with respect to
any Liberty FCC Issue; provided, however, that in the case of communications concerning a FCC Submission that occur during
an unscheduled telephone conference initiated by the FCC in connection with which it is not reasonably practicable to provide to Liberty
and SplitCo or their respective Representatives advance notice and an opportunity to participate, and communications related to non-material
matters that are not Liberty FCC Issues, SiriusXM (or its Representatives) shall promptly update Liberty and SplitCo and their Representatives
as to the content of such communications. SiriusXM shall provide Liberty and SplitCo with copies of each FCC Submission filed with the
FCC promptly following the filing thereof and with copies of any correspondence related to the Requisite FCC Approvals received by SiriusXM.
The restrictions set forth in this Section 6.6(c) do not apply to communications between FCC personnel and SiriusXM or its
Representatives for a purpose unrelated to the FCC Required Approvals.
(d) Subject
to Section 6.6(c), each of Liberty, SplitCo and SiriusXM shall use its reasonable best efforts to (i) cooperate in all respects
with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in
connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any
proceeding initiated by a private party, and (ii) keep the other party informed in all material respects and on a reasonably timely
basis of any material communication received by such party from, or given by such party to, the FCC, the Federal Trade Commission, the
Antitrust Division of the Department of Justice, or any other Governmental Authority and of any material communication received or given
in connection with any proceeding by a private party, in each case regarding any of the Transactions. Subject to applicable Laws relating
to the exchange of information, each of the parties hereto shall have the right to review in advance, and to the extent practicable each
will consult the other on, all of the information relating to the other parties and their respective Subsidiaries, as the case may be,
that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection
with the Transactions. Subject to Sections 6.6(c) and 6.13(b), no party hereto shall independently participate in any formal or
informal meeting with any Governmental Authority in respect of any material communication or any filings, submissions, investigations
or other inquiry in connection with the Transaction, without giving the other parties hereto prior notice of the meeting and, to the
extent permitted by such Governmental Authority, the opportunity to attend and/or participate.
(e) In
furtherance and not in limitation of the covenants of the parties contained in this Section 6.6, each of Liberty, SplitCo and SiriusXM
shall use its reasonable best efforts to take any and all actions and do all things necessary, proper or advisable to obtain the Requisite
FCC Approvals, and any other required approval of a Governmental Authority or other Person with respect to the Transactions. Notwithstanding
the foregoing or any other provision of this Agreement, none of Liberty, SiriusXM or SplitCo (or Liberty on behalf of SplitCo) shall,
without the other party’s prior written consent, commit to any further divestiture transaction or agree to any restriction on its
business, and nothing in this Section 6.6 shall require any party to offer, accept or agree to (i) dispose or hold separate
(in trust or otherwise) any part of its businesses, operations, assets or product lines (or a combination of Liberty’s, SiriusXM’s
and SplitCo’s respective businesses, operations, assets or product lines) or otherwise rearrange the composition of its assets,
(ii) not compete in any geographic area or line of business, (iii) restrict the manner in which, or whether, any party may
carry on business in any part of the world (including such party’s freedom of action with respect to future acquisitions of assets
or businesses or its full rights of ownership with respect to any assets and businesses held as of the date hereof or at the Closing)
and/or (iv) take any action to impose restrictions or limitations upon the exercise of full rights of ownership by any holder of
capital stock of Liberty, SiriusXM or SplitCo or otherwise to require the repurchase, redemption, deemed transfer, divestiture or other
disposition (by forced sale or otherwise) of the capital stock held by any holder of shares of Liberty, SiriusXM or SplitCo. The parties
shall contest or otherwise resist any administrative or judicial Action, including any proceeding by a private party, challenging any
of the Transactions. Notwithstanding anything herein to the contrary, Liberty’s and its Subsidiaries’ obligations under this
Section 6.6 are solely with respect to Liberty SiriusXM, and Liberty and its Subsidiaries shall have no obligation hereunder whatsoever
to take any action or omit to take any action with respect to Liberty’s Formula One Group or Liberty Live Group.
(f) Tax
Opinion Efforts.
(i) Each
of SiriusXM, Liberty and SplitCo shall, and shall cause their respective Subsidiaries to, cooperate with one another and use their respective
reasonable best efforts to permit (A) Liberty to obtain the opinions referenced in Section 7.3(c), and (B) SiriusXM to
obtain the opinion referenced in Section 7.2(d). At or immediately following the Closing, Liberty shall provide SplitCo with a true
copy of the Liberty Split-Off Representation Letters and the SplitCo Split-Off Representation Letters.
(ii) Without
limitation of the foregoing, (A) SiriusXM shall, (x) immediately prior to the Split-Off Effective Time, execute and deliver
to Liberty Tax Counsel the SiriusXM Split-Off Representation Letter and execute and deliver to each of Liberty Tax Counsel and SiriusXM
Tax Counsel the SiriusXM Merger Representation Letter and (y) provide any similar representation letters in connection with similar
opinions that may be required in connection with the filing with the SEC of the Form S-4, (B) SplitCo shall, (x) immediately
prior to the Split-Off Effective Time, execute and deliver to Liberty Tax Counsel the SplitCo Split-Off Representation Letters and execute
and deliver to each of Liberty Tax Counsel and SiriusXM Tax Counsel the SplitCo Merger Representation Letter and (y) provide any
similar representation letter in connection with similar opinions that may be required in connection with the filing with the SEC of
the Form S-4, and (C) Liberty shall, (x) immediately prior to the Split-Off Effective Time, execute and deliver to Liberty
Tax Counsel the Liberty Split-Off Representation Letters and (y) provide any similar representation letters in connection with similar
opinions that may be required in connection with the filing with the SEC of the Form S-4.
(g) Each
of Liberty and SplitCo shall use, and shall cause their respective Subsidiaries to use, their reasonable best efforts to obtain at the
earliest practicable date all of the consents, waivers and approvals listed on Section 6.6(g) of the Liberty Disclosure
Schedule. All such consents, waivers, approvals and notices shall be in writing and in form and substance satisfactory to SiriusXM,
and executed counterparts of such consents, waivers and approvals shall be delivered to SiriusXM promptly after receipt thereof, and
copies of such notices shall be delivered to SiriusXM promptly after the making thereof.
Section 6.7 Public
Announcements. The initial press release with respect to the execution of this Agreement shall be a joint press release to be reasonably
agreed upon by SiriusXM (through the Special Committee) and Liberty (the “Public Announcement”). Thereafter until
the Merger Effective Time, none of Liberty, SplitCo or SiriusXM shall, and shall cause their respective Subsidiaries not to, issue or
cause the publication of any press release or other written or oral communication to the public (to the extent not previously issued
or made in accordance with this Agreement) with respect to the Merger, this Agreement or the Transactions without the prior written consent
of the other parties (which consent shall not be unreasonably withheld or delayed); provided, however, that Liberty, SplitCo
and SiriusXM may issue or cause the publication of any press release or other written or oral communication to the public with respect
to the Merger, this Agreement or the Transactions without the prior written consent of the other parties (a) as may be required
by Law or by any applicable listing agreement with a national securities exchange as determined in the good faith judgment of the party
proposing to make such release (in which case such party, to the extent such party is reasonably able to do so, shall not issue or cause
the publication of such press release or other public announcement without prior consultation with the other party) or (b) if such
release or other written or oral communication is consistent with the Public Announcement, the information contained in such release
or other written or oral communication has otherwise been publicly disclosed in accordance with this Agreement or becomes generally available
prior to the date of such release or other written or oral communication in accordance with this Agreement.
Section 6.8 Access
to Information; Confidentiality.
(a) Prior
to the Closing, with respect to the SplitCo Business, SplitCo or its Subsidiaries only, Liberty and SplitCo shall, and shall cause each
of their respective Subsidiaries to, afford to SiriusXM and SiriusXM’s Representatives reasonable access during normal business
hours to all of their properties, commitments, books, Contracts, records and correspondence (in each case, whether in physical or electronic
form), officers, employees, accountants, counsel, financial advisors and other Representatives as SiriusXM may reasonably request with
reasonable prior notice and Liberty and SplitCo shall furnish as soon as reasonably practicable to SiriusXM all information concerning
the SplitCo Business, SplitCo or its Subsidiaries as SiriusXM may reasonably request, subject in all cases, to any bona fide concerns
of loss of attorney-client privilege and attorney work product protections that Liberty and SplitCo may in their good faith judgment
reasonably have and any restrictions contained in Contracts to which Liberty, SplitCo or any of their Subsidiaries is a party (it being
understood that each of Liberty and SplitCo shall use its reasonable best efforts to provide any such information in a manner that does
not result in such loss of privilege or protection or violation). SiriusXM and its Representatives shall conduct any such activities
in a manner as not to interfere unreasonably with the business of Liberty, SplitCo or any of their Subsidiaries or otherwise cause any
unreasonable interference with the prompt and timely discharge by the employees of Liberty, SplitCo or any of their respective Subsidiaries
of their normal duties. From the date of this Agreement until the date that is five (5) years following the Closing Date or the
termination of this Agreement pursuant to Article IX, SiriusXM shall, and shall cause its Subsidiaries and its and their respective
Representatives to, hold in confidence any and all non-public or confidential information concerning Liberty, SplitCo and their respective
Subsidiaries received pursuant to this Section 6.8(a) or otherwise in connection with this Agreement or the Transactions from
or on behalf of Liberty, SplitCo or their respective Representatives; provided, however, that SiriusXM shall not be prevented
from disclosing information (i) as required by applicable Law, (ii) which is or becomes generally available to the public other
than as a result of a disclosure by SiriusXM, its Subsidiaries or their respective Representatives in breach of any confidentiality obligation
with respect thereto, (iii) which has previously been publicly disclosed as contemplated by this Agreement or the other Transaction
Agreements (including in connection with the Prospectus / Proxy Statement or any other filings under applicable Exchange Act or stock
market listing rules) or (iv) with respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries from and after Closing.
No investigation, or information received, pursuant to this Section 6.8(a) will modify any of the representations and warranties
of the parties hereto.
(b) Prior
to the Closing, SiriusXM shall, and shall cause each of its Subsidiaries to, afford to Liberty, SplitCo and their respective Representatives
reasonable access during normal business hours to all of their properties, commitments, books, Contracts, records and correspondence
(in each case, whether in physical or electronic form), officers, employees, accountants, counsel, financial advisors and other Representatives
as Liberty or SplitCo may reasonably request with reasonable prior notice and SiriusXM shall furnish as soon as reasonably practicable
to Liberty and SplitCo all information concerning SiriusXM and its Subsidiaries as Liberty and SplitCo may reasonably request, subject
in all cases, to any bona fide concerns of attorney-client privilege or attorney work product protections that SiriusXM may reasonably
have and any restrictions contained in Contracts to which SiriusXM or any of its Subsidiaries is a party (it being understood that SiriusXM
shall use its reasonable best efforts to provide any such information in a manner that does not result in such violation). Liberty, SplitCo
and their respective Representatives shall conduct any such activities in a manner as not to interfere unreasonably with the business
of SiriusXM or any of its Subsidiaries or otherwise cause any unreasonable interference with the prompt and timely discharge by the employees
of SiriusXM or any of its respective Subsidiaries of their normal duties. From the date of this Agreement until the date that is five
(5) years following the Closing Date or the termination of this Agreement pursuant to Article IX, Liberty shall, and shall
cause its respective Subsidiaries (including SplitCo prior to the Split-Off Effective Time) and Representatives to, hold in confidence
any and all non-public or confidential information concerning SiriusXM received pursuant to this Section 6.8(b) or otherwise
in connection with this Agreement or the Transactions; provided, however, that Liberty and its Subsidiaries and Representatives
shall not be prevented from disclosing information (i) as required by applicable Law, (ii) which is or becomes generally available
to the public other than as a result of a disclosure by Liberty, its Subsidiaries or its Representatives in breach of any confidentiality
obligation with respect thereto or (iii) which has previously been publicly disclosed as contemplated by this Agreement or the other
Transaction Agreements (including in connection with the Prospectus / Proxy Statement or any other filings under applicable Exchange
Act or stock market listing rules). No investigation, or information received, pursuant to this Section 6.8(b) will modify
any of the representations and warranties of the parties hereto.
Section 6.9 Notification
of Certain Matters. Liberty and SplitCo shall give prompt notice to SiriusXM, and SiriusXM shall give prompt notice to Liberty and
SplitCo, of (i) any notice or other communication received by such party from any Governmental Authority in connection with the
Transactions or from any Person alleging that the consent of such Person is or may be required in connection with the Transactions, if
the subject matter of such communication or the failure of such party to obtain such consent would reasonably be expected to be material
to Liberty (solely with respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries, the Liberty Owned SiriusXM Shares
or the Transactions), SplitCo, or SiriusXM, (ii) any Actions commenced or, to such party’s Knowledge, threatened against,
relating to or involving or otherwise affecting such party or any of its Subsidiaries which relate to the Transactions, (iii) the
discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event the occurrence or non-occurrence of which,
would cause any representation or warranty made by such party contained in this Agreement to be breached, which breach would give rise
to the failure of a condition set forth in Section 7.2(a) or Section 7.3(a), and (iv) any material failure of such
party to comply with or satisfy any covenant or agreement to be complied with or satisfied by it hereunder which failure would give rise
to the failure of a condition set forth in Section 7.2(b), Section 7.2(c) or Section 7.3(b); provided, however,
that the delivery of any notice pursuant to this Section 6.9 shall not (x) cure any breach of, or non-compliance with, any
other provision of this Agreement or (y) limit the remedies available to the party receiving such notice.
Section 6.10 Indemnification;
Insurance.
(a) From
and after the Merger Effective Time, SplitCo shall, and shall cause its Subsidiaries to, in each case, to the fullest extent permitted
under applicable Law (i) indemnify, hold harmless and advance expenses to the individuals who at or prior to the Merger Effective
Time were directors or officers of SiriusXM or any of its Subsidiaries (each, an “Indemnitee” and collectively, the
“Indemnitees”) with respect to all Actions and all claims, liabilities, losses, damages, judgments, fines, penalties,
costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) arising from,
relating to or in connection with any Action (whether civil, criminal, administrative or investigative), whenever asserted, based on
or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of SiriusXM or such Subsidiary
or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of SiriusXM or such Subsidiary,
or taken at the request of SiriusXM or such Subsidiary, in each case under clause (A) or (B), at, or at any time prior to, the Merger
Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision)
and (ii) comply with its obligations to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from
liabilities for acts or omissions occurring at or prior to the Merger Effective Time as provided in the certificate of incorporation
or any bylaws of SiriusXM or its Subsidiaries or indemnification agreements, in each case, as in effect immediately prior to the Merger
Effective Time or in any agreement in existence as of the date of this Agreement providing for indemnification between SiriusXM or any
of its Subsidiaries and any Indemnitee. Without limiting the foregoing, from and after the Merger Effective Time, SplitCo shall cause,
unless otherwise required by Law, the certificate of incorporation and bylaws of SplitCo and any successor thereto to contain provisions
no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification and advancement
than are set forth in SplitCo’s Public Charter Documents, which provisions shall not be amended, repealed or otherwise modified
in a manner that would materially adversely affect the rights thereunder of the Indemnitees.
(b) SplitCo
shall not settle, compromise or consent to the entry of any judgment in any threatened or actual Action relating to any acts or omissions
covered under this Section 6.10 (each, a “Claim”) for which indemnification could be sought by an Indemnitee
hereunder, unless such settlement compromise or consent includes an unconditional release of such Indemnitee from all liability arising
out of such Claim or such Indemnitee otherwise consents in writing to such settlement, compromise or consent (such consent not to be
unreasonably delayed, withheld or conditioned). SplitCo and the Indemnitees shall cooperate in the defense of any Claim and shall provide
access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony,
and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(c) Prior
to the Merger Effective Time, SiriusXM shall purchase a “tail” directors’ and officers’ liability insurance policy
(the “D&O Tail Policy”) covering the six-year period from and after the Merger Effective Time for SiriusXM’s
current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage
currently maintained by SiriusXM from a comparable carrier to SiriusXM’s current directors’ and officers’ liability
insurance carrier on terms that are no less favorable to the terms of the directors’ and officers’ liability insurance coverage
currently maintained by SiriusXM as of the date of this Agreement with respect to claims arising from facts or events that occurred on
or before the Merger Effective Time. If SiriusXM is unable to obtain the “tail” policy described in the immediately preceding
sentence as of the Merger Effective Time, SplitCo shall obtain an insurance and indemnification policy (from a comparable carrier as
the current SiriusXM insurer) that provides directors’ and officers’ liability insurance for events, acts and omissions occurring
at or prior to the Merger Effective Time for an aggregate period of no less than six years from the Merger Effective Time that is no
less favorable to the Indemnitees than SiriusXM’s existing policy. In addition, SplitCo shall obtain an insurance and indemnification
policy (from a comparable carrier as the current SiriusXM insurer) that provides directors’ and officers’ liability insurance
for events, acts and omissions occurring from and after the Merger Effective Time that is no less favorable to the Indemnitees than SiriusXM’s
existing policy. Notwithstanding the foregoing, in no event will SiriusXM or SplitCo be required to pay annual premiums for such coverage
described in this Section 6.10(c) in excess of 300% of the last annual premium paid by SiriusXM for the directors’ and
officers’ liability insurance coverage currently maintained by SiriusXM; provided that, in such an event that the annual
premium for any such policy exceeds 300% of the last annual premium paid by SiriusXM for the directors’ and officers’ liability
insurance coverage currently maintained by SiriusXM, SiriusXM or SplitCo, as applicable, shall obtain the available policy or policies,
as applicable and in each case, with an annual premium equal to or less than 300% of the last annual premium paid by SiriusXM for the
directors’ and officers’ liability insurance coverage currently maintained by SiriusXM, that most closely satisfies the obligations
set forth in this Section 6.10(c) in the aggregate. SiriusXM or SplitCo, as applicable, shall use its reasonable best efforts
to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder. SiriusXM
shall cause the D&O Tail Policy to expressly provide that it survives the Closing.
(d) The
provisions of this Section 6.10 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his
or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification
or contribution that any such individual may have. The obligations of SplitCo and SiriusXM under this Section 6.10 shall not be
terminated or modified in such a manner as to materially and adversely affect the rights of any Indemnitee to whom this Section 6.10
applies unless (A) such termination or modification is required by applicable Law or (B) the affected Indemnitee shall have
consented in writing to such termination or modification (such consent not to be unreasonably delayed, withheld or conditioned) (it being
expressly agreed that the Indemnitees to whom this Section 6.10 applies shall be third party beneficiaries of this Section 6.10).
(e) In
the event that SplitCo or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the
continuing or surviving corporation or entity of such consolidation or merger, (ii) transfers or conveys all or substantially all
of its properties and assets to any Person or (iii) winds up or dissolves, then, and in each such case, proper provision shall be
made so that the successors and assigns of SplitCo shall assume all of the obligations thereof set forth in this Section 6.10.
(f) SplitCo
hereby acknowledges that the Indemnitees have or may, in the future, have certain rights to indemnification, advancement of expenses
and/or insurance provided by other Persons (collectively, “Other Indemnitors”). SplitCo hereby agrees that, (i) SplitCo
and its Subsidiaries are the indemnitors of first resort (i.e., their obligations to a Indemnitee shall be primary and any obligation
of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee
shall be secondary), (ii) SplitCo and its Subsidiaries shall, to the extent permitted by the SplitCo Public Charter Documents and
SplitCo Subsidiary Documents or pursuant to any indemnity agreements between any of SiriusXM and its Subsidiaries and any such Indemnitees
as in effect on the date of this Agreement, be required to advance the full amount of expenses incurred by any Indemnitee and, to the
extent permitted by the SplitCo Public Charter Documents and SplitCo Subsidiary Documents or pursuant to any indemnity agreements between
any of SiriusXM and its Subsidiaries and any such Indemnitees as in effect on the date of this Agreement, be liable for the full amount
of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted, without regard to any rights
the Indemnitee may have against the Other Indemnitors, and (iii) effective upon the Closing, SplitCo and its Subsidiaries, irrevocably
waive, relinquish and release the Other Indemnitors (other than the insurers under the D&O Tail Policy) from any and all claims (A) against
the Other Indemnitors for contribution, indemnification, subrogation or any other recovery of any kind in respect thereof and (B) that
the Indemnitees must seek expense advancement, reimbursement or indemnification from any Other Indemnitor before SplitCo and its Subsidiaries
must perform its expense advancement, reimbursement or indemnification obligations under this Agreement. SplitCo hereby further agrees
that no advancement, indemnification or other payment by the Other Indemnitors on behalf of a Indemnitee with respect to any claim for
which a Indemnitee has sought indemnification from SplitCo and its Subsidiaries shall affect the foregoing, and the Other Indemnitors
shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of
the rights of recovery of such Indemnitee against SplitCo and its Subsidiaries, and SplitCo and its Subsidiaries shall jointly and severally
indemnify and hold harmless against such amounts actually paid by the Other Indemnitors.
(g) Nothing
in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’
insurance claims under any policy that is or has been in existence with respect to SiriusXM or any of its Subsidiaries for any of their
respective directors, officers or other employees or the D&O Tail Policy, it being understood and agreed that the indemnification
provided for in this Section 6.10 is not prior to or in substitution for any such claims under such policies.
(h) The
obligations of SiriusXM and SplitCo (or any successor entity thereto) under this Section 6.10 shall continue in full force and effect
for a period of six years from the Merger Effective Time; provided, however, that if any Claim (whether arising before,
at or after the Merger Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Merger Effective
Time, the provisions of this Section 6.10 shall continue in effect until the full and final resolution of such Claim.
Section 6.11 Litigation.
(a) Each
of Liberty, SplitCo, Merger Sub and SiriusXM shall (i) use its reasonable best efforts to defend against, and shall promptly notify
the other parties hereto of and keep such other parties reasonably informed with respect to the status of, all Actions in which such
party or any of their respective directors or officers is named as a defendant that arises out of, relates to or is in connection with
any or all of the Transactions, including any Actions that seek to enjoin, restrain or prohibit any or all of the Transactions and/or
seek monetary damages relating to, arising from or in connection with any or all of the Transactions (“Transaction Litigation”)
and (ii) bear its own fees, costs and expenses with respect to its participation in the defense of, and/or engagement of counsel
with respect to, any Transaction Litigation (understanding that all such fees and expenses of Liberty (A) prior to the Closing shall
be paid by Liberty or reduce Transferred Cash (as defined in the Reorganization Agreement) and (B) following the Closing shall become
SplitCo Liabilities under the Reorganization Agreement and be subject to Section 4.1(n) thereof). From the date hereof until
the Closing, Liberty shall have the right to take control of the defense and settlement with respect to any and all Transaction Litigation
and to employ and engage attorneys reasonably satisfactory to Liberty, upon written notice to the other parties of such election; provided
that Liberty shall keep SiriusXM reasonably informed of the status of any such defense and shall regularly consult with, and consider
in good faith any input from, SiriusXM with respect to any such defense. From and after the Closing, SplitCo shall have the right to
take control of the defense and settlement with respect to any and all Transaction Litigation and to employ and engage attorneys reasonably
satisfactory to SplitCo, upon written notice to the other parties of such election; provided that SplitCo shall keep Liberty reasonably
informed of the status of any such defense and shall regularly consult with, and consider in good faith any input from, Liberty with
respect to any such defense. None of Liberty, SplitCo, Merger Sub or SiriusXM shall settle any such Transaction Litigation or fail to
perfect on a timely basis any right to appeal any judgment rendered or order entered against such party therein without having the prior
written consent of Liberty and SplitCo (such consent not to be unreasonably delayed, withheld or conditioned). Each of Liberty, SplitCo,
Merger Sub and SiriusXM shall use reasonable best efforts to cause each of its Affiliates, directors and officers to use reasonable best
efforts to defend any Transaction Litigation in which such Affiliate, director or officer is named as a defendant and which seeks any
such relief to comply with this Section 6.11(a) to the same extent as if such Person was a party.
(b) Each
of Liberty, SplitCo, and SiriusXM shall use reasonable best efforts to pursue recovery for any Liabilities arising from the Specified
Litigation Matter or any Transaction Litigation under its applicable insurance policies to the maximum extent possible, the proceeds
of which shall be paid in accordance with the resolution of such litigation; provided that, in the event that Liberty, SplitCo
or SiriusXM obtains recovery under its applicable insurance policies after SiriusXM has paid any judgment or settlement amount with respect
to a SplitCo Liability, then the proceeds of such recovery shall be paid to SiriusXM (provided, that, for the avoidance of doubt,
if Liberty has separately paid any judgment or settlement amount in connection with the same matter and with respect to which Liberty
obtains recovery under its applicable insurance policies, then the proceeds of such recovery (up to the amount of such payment by Liberty)
shall not be paid to SiriusXM).
Section 6.12 Fees
and Expenses. Subject to Section 9.3(c), all fees and expenses incurred in connection with this Agreement, each other Transaction
Agreement, the Merger and the consummation of the Transactions shall be paid by the party incurring such fees or expenses, whether or
not the Merger is consummated; provided that all fees and expenses incurred by Liberty, SplitCo and Merger Sub in connection with
this Agreement, each other Transaction Agreement, the Merger and the consummation of the Transactions shall be borne by SplitCo by virtue
of such fees and expenses being attributed to Liberty SiriusXM and transferred to SplitCo in the Restructuring. Notwithstanding anything
to the contrary contained herein, (i) SplitCo will pay for the total SEC filing fee as well the printing and mailing of the Prospectus
/ Proxy Statement to the holders of SiriusXM Common Stock and Liberty SiriusXM Common Stock; provided, that, if this Agreement
is validly terminated prior to the Closing, SiriusXM will, within two (2) Business Days of such termination of this Agreement, reimburse
SplitCo for the cost of such SEC filing fee applicable to the Form S-4, which is attributable to the shares of SplitCo Common Stock
to be issued to the holders of SiriusXM Common Stock in the Merger, and the cost of the printing and mailing of the Prospectus / Proxy
Statement applicable to the holders of SiriusXM Common Stock and (ii) each of Liberty and SiriusXM shall bear fifty percent (50%)
of the fees payable in connection with the filings to be made pursuant to Section 6.6 to obtain the Requisite FCC Approvals.
Section 6.13 Tax
Matters.
(a) None
of Liberty, SplitCo, SiriusXM or any of their respective Subsidiaries shall take any action, cause any action to be taken, fail to take
any action or fail to cause any action to be taken, which action or failure to act could reasonably be expected to cause (i) the
exchanges of SiriusXM Common Stock for the Merger Consideration pursuant to the Merger, taken together with the Contribution, to fail
to qualify for the Merger Intended Tax Treatment, or (ii) the Split-Off to fail to qualify for the Split-Off Intended Tax Treatment.
(b) Liberty,
SiriusXM and SplitCo agree that, with respect to any and all Tax sharing or allocation agreements, whether written or unwritten, between
or among the Liberty Tax Sharing Parties, on the one hand, and the SplitCo Tax Sharing Parties, on the other hand, (in each case, other
than commercial agreements the primary subject matter of which is not Taxes) which are in effect as of immediately before the Split-Off
Effective Time (including, for the avoidance of doubt, the Sirius/Liberty Tax Sharing Agreement, but not including any Transaction Agreement)
(“Terminating Tax Sharing Agreements”), effective as of the Split-Off Effective Time, (i) none of the Liberty
Tax Sharing Parties shall have any further rights, benefits, obligations or liabilities against or with respect to any of the SplitCo
Tax Sharing Parties pursuant to the Terminating Tax Sharing Agreements, (ii) none of the SplitCo Tax Sharing Parties shall have
any further rights, benefits, obligations or liabilities against or with respect to any of the Liberty Tax Sharing Parties pursuant to
the Terminating Tax Sharing Agreements, (iii) the Sirius/Liberty Tax Sharing Agreement shall terminate and have no further force
and effect, and (iv) except as otherwise expressly set forth in this Agreement or in another Transaction Agreement, the rights,
benefits, obligations and liabilities of the Liberty Tax Sharing Parties, on the one hand, and the SplitCo Tax Sharing Parties, on the
other hand, with respect to Taxes and Tax matters shall be governed exclusively by the Tax Sharing Agreement. For the avoidance of doubt,
nothing in this Section 6.13(b) shall cause or result in the termination of the Liberty Tax Sharing Policies or the Tax Sharing
Agreement.
(c) At
the Closing, SiriusXM shall deliver to SplitCo a certificate, in form and substance reasonably satisfactory to SplitCo and that complies
with Treasury Regulations Section 1.897-2(h), to the effect that interests in SiriusXM are not United States real property interests.
Section 6.14 Rule 16b-3.
(a) Prior
to each of the Split-Off Effective Time and the Merger Effective Time, each of Liberty and SplitCo shall take such steps as may be reasonably
requested by any party hereto (to the extent permitted by applicable law) to cause (a) dispositions and acquisitions of Liberty
SiriusXM Common Stock and other equity securities (including securities deliverable upon exercise, vesting or settlement of any equity
awards or other derivative securities and also including any acquisitions resulting from the acceleration of any equity awards), and
(b) acquisitions of SplitCo’s equity securities (including securities deliverable upon exercise, vesting or settlement of
any equity awards or other derivative securities), pursuant to the transactions contemplated by this Agreement by each individual who
is a director or officer of Liberty or SplitCo, as the case may be, to be exempt under Rule 16b-3 promulgated under the Exchange
Act, including in accordance with that certain No-Action Letter dated January 12, 1999 issued by the SEC regarding such matters
(the “No-Action Letter”). For the avoidance of doubt, the foregoing shall only apply in respect of dispositions or
acquisitions eligible for the exemption set forth in Rule 16b-3.
(b) Prior
to each of the Split-Off Effective Time and the Merger Effective Time, SiriusXM shall take such steps as may be reasonably requested
by any party hereto (to the extent permitted by applicable law) to approve dispositions of SiriusXM Common Stock and other equity securities
of SiriusXM by each individual who is a director or officer of SiriusXM pursuant to the transactions contemplated by this Agreement under
Rule 16b-3 promulgated under the Exchange Act including in accordance with the No-Action Letter. For the avoidance of doubt, the
foregoing shall only apply in respect of dispositions eligible for the exemption set forth in Rule 16b-3.
Section 6.15 Nasdaq
Listing. SplitCo shall use reasonable best efforts to cause the shares of SplitCo Common Stock to be approved for listing on Nasdaq,
subject to official notice of issuance, prior to the Closing Date.
Section 6.16 SiriusXM
Common Stock Delisting. SiriusXM, Liberty and SplitCo shall cooperate and use their reasonable best efforts to take, or cause to
be taken, all actions, and do or cause to be done all things, reasonably necessary on their part under applicable Law and the rules and
policies of Nasdaq to enable the delisting of the shares of SiriusXM Common Stock from Nasdaq and the deregistration of the shares of
SiriusXM Common Stock under the Exchange Act as promptly as practicable after the Merger Effective Time.
Section 6.17 No
Acquisition of a Liberty Interest by SiriusXM. From and after the date hereof and prior to the earlier of the Merger Effective Time
and the termination of this Agreement in accordance with Article IX, SiriusXM will not (a) acquire, directly or indirectly,
any shares of Liberty SiriusXM Common Stock or any other rights to purchase or receive additional shares of Liberty SiriusXM Common Stock
other than as a result of stock splits, dividends or other similar transactions or (b) acquire, directly or indirectly, any Liberty
Interest.
Section 6.18 No
Acquisition of a SiriusXM Interest by Liberty. From and after the date hereof and prior to the earlier of the Merger Effective Time
and the termination of this Agreement in accordance with Article IX, Liberty will not (a) sell, dispose of or transfer, directly
or indirectly, any shares of SiriusXM Common Stock other than as contemplated by the Transaction Agreements (including in connection
with the Restructuring), (b) acquire, directly or indirectly, any additional shares of SiriusXM Common Stock or any other rights
to purchase or receive additional shares of SiriusXM Common Stock other than as a result of stock splits, dividends or other similar
transactions or any deemed purchases of SiriusXM Common Stock resulting from the refinancing or repurchase of the 2.75% Exchangeable
Senior Debentures or (c) enter into or acquire, directly or indirectly, any derivative contract with respect to any shares of SiriusXM
Common Stock or enter into any other hedging or other similar transaction that has the effect of providing Liberty, directly or indirectly,
with the economic benefits, voting rights or risks of ownership of any shares of SiriusXM Common Stock.
Section 6.19 Intercompany
Arrangements; Intercompany Payables; Termination of Investment Agreement and Section 253 Agreement.
(a) As
of the Split-Off Effective Time, except with respect to the Transaction Agreements, (i) none of SplitCo or any of its Subsidiaries
shall be liable to Liberty or any of its controlled Affiliates based upon, arising out of or resulting from any Contract, arrangement,
course of dealing or understanding existing on or prior to the Split-Off Effective Time, and (ii) each of SplitCo (on behalf of
itself and its Subsidiaries) and Liberty (on behalf of itself and its controlled Affiliates) hereby terminates any and all Contracts,
arrangements, courses of dealing and understandings between or among SplitCo (on behalf of itself and its Subsidiaries), on the one hand,
and Liberty (on behalf of itself and its controlled Affiliates), on the other hand, solely insofar as such Contracts, arrangements, course
of dealing and understandings relate to the SplitCo Business, SplitCo or any of SplitCo’s Subsidiaries, effective as of the Split-Off
Effective Time. No such Contract, arrangement, course of dealing or understanding (including any provision thereof which purports to
survive termination) insofar as it is terminated with respect to the SplitCo Business, SplitCo or any of SplitCo’s Subsidiaries
shall be of any further force or effect after the Split-Off Effective Time with respect to the SplitCo Business, SplitCo or any of SplitCo’s
Subsidiaries. SplitCo and Liberty shall, and shall cause their respective controlled Affiliates to, execute and deliver such agreements,
instruments and other papers as may be required to evidence the termination of any such Contract, arrangement, course of dealing or understanding
with respect to the SplitCo Business, SplitCo or any of SplitCo’s Subsidiaries pursuant to this Section 6.19 if so
requested by a party hereto. All intercompany payables and loans owed to Liberty or its Subsidiaries (except for SplitCo and its Subsidiaries),
on the one hand, by SplitCo or one of its Subsidiaries, on the other hand, including as provided in Section 6.2(b), shall, prior
to or at the Split-Off Effective Time, be canceled, settled or extinguished.
(b) Subject
to the consummation of the Merger, each of Liberty (on behalf of itself with respect to the Section 253 Agreement and on behalf
of Liberty Radio with respect to the Investment Agreement) and SiriusXM hereby terminates each of the Investment Agreement and the Section 253
Agreement, in each case, effective as of the Merger Effective Time and with no further obligations of SplitCo or its Affiliates from
and after the Closing. Liberty and SiriusXM shall, and shall cause their respective Subsidiaries to, execute and deliver such further
agreements, instruments and other papers as may be required to evidence the termination of the Investment Agreement and the Section 253
Agreement. Following such terminations, the Investment Agreement and the Section 253 Agreement shall be of no further or effect.
Section 6.20 Liberty
Undertaking; Effects of Split-Off.
(a) Liberty
agrees that during the period from the date hereof to the earlier of the Split-Off Effective Time and the termination of this Agreement
in accordance with Article IX, it will (i) cause SplitCo, Merger Sub and SplitCo’s other Subsidiaries to perform their
respective obligations under this Agreement in accordance with the terms hereof and (ii) be responsible for any Liability arising
out of a breach of any representation or warranty made by SplitCo or Merger Sub in this Agreement and for the failure of SplitCo or Merger
Sub to perform any of such party’s covenants, agreements or obligations hereunder in accordance with the terms hereof.
(b) Effective
as of the Split-Off Effective Time, Liberty hereby transfers, assigns and conveys to SplitCo all of Liberty’s rights and benefits
under this Agreement (other than Liberty’s (and its officers’ and directors’) rights under Sections 6.9, 6.11, 6.12,
6.13(b), 6.17, 6.19, 6.20 and 9.2 (such rights, collectively, the “Retained Rights”), provided that nothing
herein shall affect any of SplitCo’s, Merger Sub’s or SiriusXM’s rights (other than against Liberty) under such sections)
(such assigned rights and benefits, collectively, the “Assigned Rights”). Effective as of the Split-Off Effective
Time, SplitCo accepts the Assigned Rights and assumes and agrees to be bound by all of Liberty’s liabilities and obligations under
this Agreement (other than Liberty’s (and its officers’ and directors’) liabilities and obligations under Sections
6.9, 6.11, 6.12, 6.13(b) and 6.19 (the “Retained Obligations”)) (the “Assigned Obligations”),
and to perform the Assigned Obligations in accordance with this Agreement; provided that, such assumption of liabilities and obligations
is subject to Section 6.20(c).
(c) Effective
as of the Split-Off Effective Time, (i) SiriusXM, SplitCo and Merger Sub hereby release Liberty from any obligations and liabilities
relating to (A) any breach by Liberty, SplitCo or Merger Sub of any representation or warranty made by or on behalf of any of them
hereunder or the failure of Liberty, SplitCo or Merger Sub to perform any covenant, agreement or obligation to be performed by Liberty,
SplitCo or Merger Sub hereunder (other than the Retained Obligations), (B) Liberty’s obligation pursuant to this Agreement
to cause SplitCo and Merger Sub to perform their respective covenants, agreements or obligations hereunder and (C) SplitCo’s
performance after the Split-Off Effective Time of the Assigned Rights and Assigned Obligations (for the avoidance of doubt, the foregoing
does not constitute a release in favor of SplitCo with respect to any of the obligations of SplitCo hereunder) and (ii) Liberty
hereby releases each of SiriusXM, SplitCo and Merger Sub, from any obligations and liabilities relating to any breach by it of any representation
or warranty made by it hereunder or its failure to perform in all material respects any covenant, agreement or obligation to be performed
by it hereunder (other than any obligation of SplitCo and SiriusXM with respect to a Retained Right). In furtherance of and not in limitation
of the foregoing, the parties agree that from and after the Split-Off Effective Time, SiriusXM will look solely to SplitCo and Merger
Sub with respect to (i) the performance of SplitCo’s and Merger Sub’s covenants, agreements or obligations hereunder
and with respect to any liability of SplitCo or Merger Sub hereunder and (ii) the performance of Liberty’s covenants, agreements
or Assigned Obligations hereunder, whether such obligation or liability arises before or after the Split-Off Effective Time. Notwithstanding
anything to the contrary contained herein, the foregoing releases shall not affect the rights of the parties under the Transaction Agreements.
(d) For
the avoidance of doubt, nothing in this Section 6.20 shall affect the rights, benefits, obligations or liabilities of the parties
under the other Transaction Agreements.
(e) Nothing
in this Section 6.20 shall (i) relieve any party from liability for fraud or any willful breach of this Agreement or (ii) affect
the rights and obligations of any party under this Agreement upon termination of this Agreement pursuant to Article IX.
Section 6.21 State
Takeover Statutes. Each party hereto shall use its reasonable best efforts to (a) take all action necessary to ensure that no
“fair price,” “business combination,” “control share acquisition” or other state takeover statute
or similar Law is or becomes applicable to any of the Transactions and (b) if any “fair price,” “business combination,”
“control share acquisition” or other state takeover statute or similar Law becomes applicable to any of the Transactions,
take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by
this Agreement and otherwise minimize the effect of such Law on the Transactions.
Section 6.22 3.75%
Convertible Senior Notes and 2.75% Exchangeable Senior Debentures.
(a) At
or prior to the Split-Off Effective Time, to the extent the 3.75% Convertible Senior Notes and/or the 2.75% Exchangeable Senior Debentures
are outstanding, as applicable, Liberty and SplitCo shall give any notices and take all other actions necessary in accordance with the
terms of the Existing Indentures which actions shall include Liberty and SplitCo (or their Subsidiaries) (i) taking any corporate
or other organizational action and giving any notices, press releases, documents or instruments, in each case, that may be required in
connection with the Transactions, (ii) preparing any supplemental indentures required under the Existing Indentures in connection
with the Transactions and the consummation thereof to be executed and delivered to the trustee under the applicable Existing Indenture
at or prior to the Split-Off Effective Time, (iii) causing their counsel to deliver any opinions of counsel required to be delivered
at or prior to the Split-Off Effective Time (including, but not limited to, the opinions of counsel to the applicable trustee as set
forth in Section 10.04 of the 3.75% Convertible Senior Notes Indenture and Section 9.03 of the 2.75% Exchangeable Senior Debentures
Indenture) and any officer’s certificates or other documents or instruments, as may be necessary to comply with all of the terms
and conditions of the Existing Indentures in connection with the Transactions; and (iv) taking all actions under (A) the 3.75%
Convertible Senior Notes Indenture as are required thereby for the Transactions to qualify as a “SIRI Distribution” (as such
term is defined in the 3.75% Convertible Senior Notes Indenture) thereunder and (B) the 2.75% Exchangeable Senior Debentures Indenture
as are required thereby for the Transactions to qualify as a “Permitted Transfer” (as such term is defined in the 2.75% Exchangeable
Senior Debentures Indenture) thereunder.
(b) Liberty
and SplitCo shall (i) provide SiriusXM and the Special Committee reasonable opportunity to review and comment on any notices, certificates,
press releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments required to be
delivered under the Existing Indentures pursuant to Section 6.22(a), prior to the dispatch or making thereof and Liberty and SplitCo
shall give due consideration to any such comments proposed by SiriusXM and the Special Committee and (ii) provide SiriusXM and the
Special Committee and their respective counsel (to the extent not publicly available) with copies of any notices, certificates, press
releases, supplemental indentures, legal opinions, officers’ certificates or other documents or instruments required to be delivered
under the Existing Indentures pursuant to Section 6.22(a).
(c) Except
in connection with any action (x) permitted under Section 6.2 (including, but not limited to, entering into any supplemental
indenture to the 2.75% Exchangeable Senior Debentures Indenture related to any repurchase or redemption of the 2.75% Exchangeable Senior
Debentures permitted by Section 6.2(a)(xii)) or (y) permitted by Section 6.22(d), prior to the Merger Effective Time,
neither Liberty nor SplitCo shall amend, modify or supplement any Existing Indenture or take any action that, in each case, would adversely
affect Liberty’s obligations or SplitCo’s obligations under any Existing Indenture in any material respect without the prior
written consent of SiriusXM (other than, for the avoidance of doubt, any required change in connection with the Transactions).
(d) If
the Merger Effective Time has not occurred by the Resale Restriction Termination Date (as defined in the 3.75% Convertible Senior Notes
Indenture), Liberty shall use commercially reasonable efforts as promptly as reasonably practicable following the Resale Restriction
Termination Date and prior to the Closing Date (and in no event later than March 25, 2024) to remove the restrictive legend on the
3.75% Convertible Senior Notes (for the avoidance of doubt, this Section 6.22(d) shall not be deemed violated if such restrictive
legend is not removed by March 25, 2024 so long as Liberty used and continues to use, prior to the Closing Date, its commercially
reasonable efforts to comply with this Section 6.22(d)).
Section 6.23 Financing.
(a) In
coordination with the Debt Financing Sources and Liberty, SiriusXM shall, and shall cause each of its Subsidiaries to, use its commercially
reasonable efforts to launch a marketing process in order to obtain commitments for an Alternative Financing in the form of term “A”
loans as promptly as possible following the date hereof. To the extent any Alternative Financing is obtained on or prior to the Closing
Date, SiriusXM shall, and shall cause each of its Subsidiaries to, promptly terminate the Financing Commitments by an amount no less
than the aggregate principal amount of such Alternative Financing obtained on or prior to the Closing Date.
(b) To
the extent reasonably requested in writing by Liberty and SplitCo, SiriusXM shall coordinate with Liberty and Splitco in connection with
the process of an Alternative Financing and shall keep Liberty and SplitCo reasonably informed of the status of its (and its Subsidiaries’)
efforts to arrange the Financing or the Alternative Financing (including providing Liberty and SplitCo with copies of material draft
and definitive agreements and other material documents (including any lender presentations and road show decks) related to the Financing
or the Alternative Financing, as applicable). SiriusXM (on behalf of itself and its Subsidiaries) shall give Liberty and SplitCo notice
as promptly as reasonably practicable (x) of any material breach or default by any party to any of the Financing Commitments or
definitive agreements related to the Financing or the Alternative Financing of which SiriusXM (or its Subsidiaries) becomes aware, (y) of
the receipt of any written (A) notice or (B) other communication, in each case, from any Person with respect to (1) any
actual or potential material breach, default, termination or repudiation by any party to any of the Financing Commitments or definitive
agreements related to the Financing or the Alternative Financing or (2) material dispute or disagreement between or among the parties
to any of the Financing Commitments or definitive agreements related to the Financing or the Alternative Financing including, without
limitation, with respect to the obligation to fund the Financing, the Alternative Financing or the amount of the Financing or the Alternative
Financing to be funded at the Closing, and (z) if at any time for any reason SiriusXM (or its Subsidiaries) believes in good faith
that it (or its Subsidiaries) will not be able to obtain all or any portion of the Financing or the Alternative Financing needed to consummate
the Transactions on the terms and conditions, in the manner, or from the sources contemplated by, any of the Financing Commitments or
definitive agreements related to the Financing or the Alternative Financing at or prior to the time that the Closing is required to occur
pursuant to the terms hereof.
(c) Each
of Liberty and SplitCo shall use their respective reasonable best efforts to provide all reasonable cooperation requested in writing
by SiriusXM in connection with the Financing or the Alternative Financing. Notwithstanding anything to the contrary, neither Liberty
nor SplitCo shall be required to take or permit the taking of any action pursuant this clause (d) that: (i) would require Liberty,
SplitCo or any of their Subsidiaries or any Persons who are officers or directors of Liberty, SplitCo or any of their Subsidiaries to
pass resolutions or consents to approve or authorize the execution of the Financing, the Alternative Financing or enter into, execute
or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document,
instrument or agreement, (ii) cause any representation or warranty in this Agreement to be breached by Liberty, SplitCo or any of
their Subsidiaries, (iii) require Liberty, SplitCo or any of their Subsidiaries to have any obligation under any agreement, certificate,
document or instrument related to the Financing or the Alternative Financing, (iv) cause any director, officer or employee or stockholder
of Liberty, SplitCo or any of their Subsidiaries to incur any personal liability, (v) conflict with the organizational documents
of Liberty, SplitCo or any of their Subsidiaries or any Laws, (vi) reasonably be expected to result in a material violation or breach
of, or a default (with or without notice, lapse of time, or both) under, any Contract to which Liberty, SplitCo or any of their Subsidiaries
is a party, (vii) provide access to or disclose information that Liberty, SplitCo or any of their Subsidiaries determines would
jeopardize any attorney-client privilege of Liberty, SplitCo or any of their Subsidiaries, (viii) provide access to or disclosure
of information that Liberty, SplitCo or any of their Subsidiaries consider non-public or confidential, other than as expressly authorized
by (and in compliance with) Section 6.8, (ix) prepare any financial statements or information that are not available to it
and prepared in the ordinary course of its financial reporting practice or (x) would unreasonably interfere with the conduct of
the business of Liberty, SplitCo or any of their Subsidiaries.
(d) SiriusXM
and its Subsidiaries shall indemnify and hold harmless Liberty, SplitCo and any of their Subsidiaries and any of their Representative
from and against any and all losses suffered or incurred by them in connection with any actions (if any) related to the Financing or
Alternative Financing taken by Liberty, SplitCo and any of their Subsidiaries and any of their Representatives pursuant to this Section 6.23
and any information used in connection with the foregoing, except to the extent that any of the foregoing arises from (x) information
provided in writing by Liberty or SplitCo, or any of their respective Subsidiaries or any of their Representatives (to the extent such
Representative was explicitly directed in writing by Liberty or SplitCo to provide such information) in connection with its obligations
pursuant to this Section 6.23 or (y) the bad faith, gross negligence or willful misconduct of Liberty or SplitCo, or any of
their respective Subsidiaries or any of their respective Representatives as determined by a court of competent jurisdiction in a final
and non-appealable judgment.
(e) To
the extent the Debt Commitment Letter has not been terminated in full prior to the date that is 60 days after the Signing Date (as defined
in the Debt Commitment Letter), or the Commitments (as defined in the Debt Commitment Letter) have not been reduced to a level where
the Existing Credit Agreement (as defined in the Commitment Letter) permits the full amount of the Commitments to be secured prior to
the date that is 60 days after the Signing Date (as defined in the Debt Commitment Letter), SiriusXM and its Subsidiaries shall use commercially
reasonable efforts (it being understood that such commercially reasonable efforts will not include (x) payment of any amendment
fee by SiriusXM or its Subsidiaries in order to achieve the Security Amendment greater than any amount required under Section 1(A)(ii) of
the Fee Letter or (y) any other changes (including with respect to interest rates or more restrictive covenant amendments) to the
Existing Credit Agreement other than the Security Amendment) to launch an amendment process for the Security Amendment (as defined in
the Debt Commitment Letter).
Section 6.24 Other
Debt Items.
(a) On
or before the Closing, but in any event no later than immediately prior to the time when the Margin Loan Agreement is required to be
repaid in connection with Closing, (x) SiriusXM shall cause SiriusXM Radio to execute and deliver the SiriusXM Promissory Note and,
pursuant to the terms of the SiriusXM Promissory Note, loan to SplitCo the amount set forth in the SiriusXM Promissory Note and (y) SplitCo
shall execute and deliver the SiriusXM Promissory Note.
(b) SiriusXM
shall, and shall cause each of its Subsidiaries to, use their commercially reasonable efforts to take all actions reasonably requested
by Liberty in connection with satisfying the condition to closing set forth in Section 7.3(d) such that the Merger may be consummated.
(c) On
the Closing Date, Liberty shall provide to SiriusXM executed copies of the Payoff Letters, drafts of which have been provided to SiriusXM
at least five (5) Business Days prior to Closing.
ARTICLE VII.
Conditions Precedent
Section 7.1 Conditions
to Each Party’s Obligation to Effect the Merger. The respective obligations of each party hereto to effect the Merger is subject
to the satisfaction (or waiver solely with respect to the conditions set forth in Section 7.1(c)) on or prior to the Split-Off Effective
Time of the following conditions:
(a) Liberty
Stockholder Approval. The Liberty Stockholder Approval shall have been obtained in accordance with applicable Law and the Liberty
Charter Documents;
(b) Reorganization
Agreement Conditions. All of the conditions precedent set forth in Section 2.2 and Section 2.3 of the Reorganization Agreement
shall have been satisfied or, to the extent permitted under the terms thereof, waived;
(c) Regulatory
Approvals. (i) Except as set forth on Section 7.1(c) of the Liberty Disclosure Schedule, the waiting period,
if any (and any extension thereof), applicable to the Merger or Split-Off under the HSR Act shall have been terminated or shall have
expired, and (ii) except as would not, individually or in the aggregate, reasonably be expected to result in a SplitCo Material
Adverse Effect or a SiriusXM Material Adverse Effect and except as set forth on Section 7.1(c) of the Liberty Disclosure
Schedule, (A) all other authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations
of waiting periods required by, any Governmental Authority (other than the FCC) which are required in connection with the Merger or Split-Off
shall have been filed, have occurred, been obtained or have lapsed (all such authorizations, consents, orders, approvals, filings and
declarations and the lapse of all such waiting periods, including under the HSR Act, being referred to as the “Requisite Regulatory
Approvals”), and (B) all such Requisite Regulatory Approvals referred to in clause (A) to the extent applicable shall
have been so obtained and be in full force and effect;
(d) FCC
Approvals. The Requisite FCC Approvals shall have been obtained;
(e) No
Injunctions or Restraints. No Law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any
Governmental Authority (collectively, “Restraints”) shall be in effect enjoining, restraining, preventing or prohibiting
consummation of any of the Transactions or making the consummation of any of the Transactions illegal;
(f) Form S-4.
The Form S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Form S-4
shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC and the registration of
the shares of SplitCo Common Stock shall have become effective under Section 12(b) of the Exchange Act; and
(g) Stock
Listing. The shares of SplitCo Common Stock shall have been approved for listing on Nasdaq, subject to official notice of issuance.
(h) Reorganization
Agreement. The Split-Off Transactions shall have been consummated in accordance with the terms hereof and the terms of the Reorganization
Agreement.
Section 7.2 Conditions
to Obligations of SiriusXM. The obligations of SiriusXM to effect the Merger are further subject to the satisfaction (or waiver solely
with respect to the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c)) on or prior to the
Split-Off Effective Time of the following conditions:
(a) Representations
and Warranties. Except as set forth in the following sentence, the representations and warranties set forth in Articles III and IV
shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect”
set forth therein) at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier
date, in which case as of such earlier date, or as otherwise expressly set forth therein), except where the failure of such representations
and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse
Effect” set forth therein) would not, individually or in the aggregate, have a SplitCo Material Adverse Effect. The representations
and warranties set forth in Sections 3.2, 3.3(d), 3.6, 3.7 and 4.2 shall be true and correct in all respects other than for de minimis
exceptions (other than the fourth sentence of Section 3.2(a), which shall be true and correct in all material respects) at and
as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as
of such earlier date, or as otherwise expressly set forth therein). On the Closing Date and prior to the Split-Off Effective Time, SiriusXM
shall have received a certificate signed on behalf of Liberty and SplitCo by an authorized officer, dated as of the Closing Date, to
such effect;
(b) Performance
of Obligations of Liberty. Liberty shall have performed in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and SiriusXM shall have received a certificate on the Closing Date and prior to the Split-Off
Effective Time signed on behalf of Liberty by an authorized officer to such effect;
(c) Performance
of Obligations of SplitCo and Merger Sub. SplitCo and Merger Sub shall each have performed in all material respects all obligations
required to be performed by such party under this Agreement at or prior to the Closing Date, and SiriusXM shall have received a certificate
on the Closing Date and prior to the Split-Off Effective Time signed on behalf of SplitCo by an authorized officer to such effect; and
(d) Tax
Opinion. SiriusXM shall have received an opinion of its counsel, Simpson Thacher & Bartlett LLP (“SiriusXM Tax
Counsel”), in form and substance reasonably satisfactory to SiriusXM, dated the Closing Date, to the effect that, for U.S.
federal income tax purposes, the exchanges of SiriusXM Common Stock for the Merger Consideration pursuant to the Merger, taken together
with the Contribution, will qualify as exchanges described in Section 351 of the Code (the “Merger Intended Tax Treatment”).
Section 7.3 Conditions
to Obligation of Liberty, SplitCo and Merger Sub. The obligation of Liberty, SplitCo and Merger Sub to effect the Merger is further
subject to the satisfaction (or waiver solely with respect to the conditions set forth in Section 7.3(a) and Section 7.3(b))
on or prior to the Split-Off Effective Time of the following conditions:
(a) Representations
and Warranties. Except as set forth in the following sentence, the representations and warranties set forth in Article V shall
be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect”
set forth therein) at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier
date, in which case as of such earlier date, or as otherwise expressly set forth therein), except where the failure of such representations
and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse
Effect” set forth therein) would not, individually or in the aggregate, have a SiriusXM Material Adverse Effect. The representations
and warranties set forth in Sections 5.2 and 5.6 shall be true and correct in all respects (other than the fourth sentence of Section 5.2(a),
which shall be true and correct in all material respects) at and as of the Closing Date as if made at and as of such time (except to
the extent expressly made as of an earlier date, in which case as of such earlier date, or as otherwise expressly set forth therein).
Liberty shall have received on the Closing Date and prior to the Split-Off Effective Time a certificate signed on behalf of SiriusXM
by an authorized officer, dated as of the Closing Date, to such effect;
(b) Performance
of Obligations of SiriusXM. SiriusXM shall have performed in all material respects all obligations required to be performed by it
under this Agreement at or prior to the Closing Date, and each of Liberty and SplitCo shall have received on the Closing Date and prior
to the Split-Off Effective Time a certificate signed on behalf of SiriusXM by an authorized officer of SiriusXM to such effect;
(c) Tax
Opinions. Liberty shall have received the following opinions from Skadden, Arps, Slate, Meagher & Flom LLP (“Liberty
Tax Counsel”):
(i) an
opinion, dated the Redemption Date, in form and substance reasonably acceptable to Liberty, to the effect that, for U.S. federal income
tax purposes, the Split-Off Transactions will qualify for the Split-Off Intended Tax Treatment;
(ii) an
opinion, dated the Redemption Date, in form and substance reasonably acceptable to Liberty, to the effect that, for U.S. federal income
tax purposes, the Split-Off and the Merger will not cause the ABHI Split-Off Transactions to fail to qualify for the ABHI Split-Off Intended
Tax Treatment; and
(iii) an
opinion, dated the Closing Date, in form and substance reasonably acceptable to Liberty, to the effect that, for U.S. federal income
tax purposes, the exchanges of SiriusXM Common Stock for the Merger Consideration pursuant to the Merger, taken together with the Contribution,
will qualify for the Merger Intended Tax Treatment;
(d) Margin
Loan Repayment. All loans then outstanding together with accrued interest and any additional amounts required under the Margin Loan
Agreement will be or shall be repaid in full (other than contingent or indemnification obligations that are not yet due) pursuant to
and in accordance with one of the options set forth in the definition of “Liberty/SIRI Transaction Announcement” as set forth
in the Margin Loan Agreement (it being expressly agreed that each Lender (as defined in the Margin Loan Agreement) under the Margin Loan
Agreement is an express third party beneficiary of this Section 7.3(d)).
Section 7.4 Frustration
of Closing Conditions. None of Liberty, SplitCo, Merger Sub or SiriusXM may rely on the failure of any condition set forth in Section 7.1,
7.2 or 7.3, as the case may be, to be satisfied if such failure was caused by such party’s failure to use its reasonable best efforts
to consummate the Merger and the other Transactions, as required by and subject to Section 6.6.
ARTICLE VIII.
Survival
Section 8.1 Survival
The representations and warranties contained herein and in any certificate delivered pursuant to Section 7.2(a), Section 7.2(b),
Section 7.2(c), Section 7.3(a) and Section 7.3(b) hereto shall not survive the Merger Effective
Time or the termination of this Agreement (other than as provided in Section 9.2). The covenants and agreements herein that relate
to actions to be taken at or after the Merger Effective Time shall survive the Merger Effective Time until satisfied in full.
ARTICLE IX.
Termination
Section 9.1 Termination.
This Agreement may be terminated and the Transactions abandoned at any time prior to the Split-Off Effective Time:
(a) by
the mutual written consent of Liberty, on the one hand, and SiriusXM (through the Special Committee), on the other hand, duly authorized
by each of their respective Boards of Directors;
(b) by
either Liberty, on the one hand, or SiriusXM (through the Special Committee), on the other hand:
(i) if
the Transactions shall not have been consummated on or before the Walk-Away Date, provided that the right to terminate this Agreement
under this Section 9.1(b)(i) shall not be available to any party whose action or failure to act has been the primary cause
of or resulted in the failure of the Merger to occur on or before the Walk-Away Date, if applicable, and such action or failure to act
constitutes a breach of this Agreement or any of the other Transaction Agreements;
(ii) if
any Restraint having the effect set forth in Section 7.1(e) shall be in effect and shall have become final and nonappealable;
provided, however, that the right to terminate this Agreement under this Section 9.1(b)(ii) shall not be available
to a party if such Restraint was primarily due to the failure of such party to perform or resulted from such party’s failure to
perform any of its obligations under this Agreement or any of the other Transaction Agreements; or
(iii) if
the Liberty Stockholder Approval shall not have been obtained at the Liberty Stockholders Meeting duly convened therefor or at any adjournment
or postponement thereof; provided, however, that the right of Liberty to terminate this Agreement under this Section 9.1(b)(iii) shall
not be available to it if it has failed to comply in all material respects with its obligations under Section 6.1 or 6.4;
(c) by
SiriusXM (through the Special Committee):
(i) if
Liberty, SplitCo or Merger Sub shall have breached or failed to perform any of their respective representations, warranties, covenants
or agreements set forth in this Agreement (or if any of the representations or warranties set forth in Articles III and IV shall fail
to be true) or the Reorganization Agreement, which breach or failure (A) would give rise to the failure of a condition set forth
in Sections 7.2(a), 7.2(b), 7.2(c) or 7.1(h) to be satisfied and (B) is incapable of being cured by the Walk-Away Date,
or is not cured, by Liberty, SplitCo or Merger Sub, as applicable, within thirty (30) calendar days following receipt of written notice
from the Special Committee (on behalf of SiriusXM) of such breach or failure; provided, that SiriusXM is not in breach of any
representation, warranty or covenant set forth in this Agreement, which breach would give rise to the failure of a condition set forth
in Sections 7.3(a) or 7.3(b) to be satisfied; or
(ii) if
a Liberty Adverse Recommendation Change shall have occurred;
and
(d) by
Liberty, if SiriusXM shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth
in this Agreement (or if any of the representations or warranties set forth in Article V shall fail to be true) or the Reorganization
Agreement, which breach or failure (A) would give rise to the failure of a condition set forth in Sections 7.3(a), 7.3(b) or
7.1(h) to be satisfied and (B) is incapable of being cured by the Walk-Away Date, or is not cured, by SiriusXM within thirty
(30) calendar days following receipt of written notice from Liberty of such breach or failure; provided, that SplitCo, Merger
Sub or Liberty is not in breach of any representation, warranty or covenant set forth in this Agreement, which breach would give rise
to the failure of a condition set forth in Sections 7.2(a), 7.2(b) or 7.2(c) to be satisfied.
Section 9.2 Effect
of Termination. In the event of the termination of this Agreement as provided in Section 9.1, written notice thereof shall be
given to the other party or parties, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall
forthwith become null and void (other than the second to last sentence of Section 6.8(a), the second to last sentence of Section 6.8(b),
Sections 6.12, 6.20, 9.2 and 9.3, and Article X, all of which shall survive termination of this Agreement), and there shall be no
liability on the part of SiriusXM, Liberty, SplitCo or Merger Sub or their respective directors, officers and Affiliates, except (a) Liberty
may have liability as provided in Section 9.3, and (b) nothing shall relieve any party from liability for fraud or any willful
breach of this Agreement.
Section 9.3 Termination
Fee and Expenses.
(a) In
the event that this Agreement is terminated by SiriusXM (through the Special Committee) pursuant to Section 9.1(c)(ii), then Liberty
shall pay to SiriusXM a termination fee of $450 million in cash (the “Termination Fee”).
(b) Any
payment required to be made in accordance with Section 9.3(a) shall be made within two (2) Business Days of the termination
of this Agreement by SiriusXM.
(c) In
the event that Liberty fails to pay the Termination Fee when required pursuant to this Section 9.3 when due, Liberty shall pay SiriusXM
all of its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’
fees) in connection with efforts to collect the Termination Fee together with interest on such amount at an annual rate equal to the
prime rate established in the Wall Street Journal in effect on the date such payment was required to be made through the date such payment
was actually received, or such lesser rate as is the maximum permitted by applicable Law. Liberty, SplitCo, Merger Sub and SiriusXM acknowledge
that the fee and the other provisions of this Section 9.3 are an integral part of the Transactions and that, without these agreements,
SiriusXM, Liberty, SplitCo and Merger Sub would not enter into this Agreement.
(d) The
parties hereto agree that, upon any termination of this Agreement under circumstances where the Termination Fee is payable by Liberty
pursuant to this Section 9.3 and such Termination Fee is paid in full, except as provided in Section 9.3(c) and except
in the event of any willful breach of Section 6.4 by Liberty, SplitCo or their respective Subsidiaries and Representatives, SiriusXM
and its current and former Affiliates and Representatives shall be precluded from any other remedy against Liberty, SplitCo, Merger Sub
and their respective current and former Affiliates and Representatives, at law or in equity or otherwise, and neither SiriusXM nor any
of its current or former Affiliates or Representatives shall seek to obtain any recovery, judgment, or damages of any kind, including
consequential, indirect, or punitive damages, against SplitCo, Liberty, Merger Sub or any of their respective current or former Affiliates
or Representatives in connection with this Agreement or the Transactions, and SiriusXM’s right to receive payment of the Termination
Fee pursuant to Section 9.3 shall constitute the sole and exclusive remedy of SiriusXM and its current and former Affiliates and
Representatives for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach
or failure to perform hereunder or otherwise, and upon payment of such amount, none of SplitCo, Liberty, Merger Sub or any of their respective
current or former Affiliates and Representatives shall have any further liability or obligation relating to or arising out of this Agreement
or the Transactions. Notwithstanding anything herein to the contrary, Liberty shall not be obligated to pay, and SiriusXM shall not be
entitled to receive, the Termination Fee more than once.
ARTICLE X.
Miscellaneous
Section 10.1 Amendment
or Supplement. At any time prior to the Merger Effective Time, this Agreement may be amended or supplemented in any and all respects,
whether before or after receipt of the Liberty Stockholder Approval, the SiriusXM Stockholder Consent, SplitCo Stockholder Consent or
the Merger Sub Member Consent, by written agreement of the parties hereto, by action taken by their respective Boards of Directors (which,
in the case of SiriusXM, requires approval of the Special Committee); provided, however, that following approval of the
Transactions by the holders of Liberty SiriusXM Common Stock, the stockholders of SiriusXM, the sole stockholder of SplitCo or the sole
member of Merger Sub, there shall be no amendment or change to the provisions hereof which by Law would require further approval by the
holders of Liberty SiriusXM Common Stock, the stockholders of SiriusXM, the sole stockholder of SplitCo or the sole member of Merger
Sub without such approval; provided that any amendment or modification of Section 7.3(d) shall require the prior written
consent of each Lender (as defined in the Margin Loan Agreement).
Section 10.2 Extension
of Time, Waiver, Etc. At any time prior to the Merger Effective Time, any party may (through the Special Committee, in the case of
SiriusXM), subject to applicable Law, (a) waive any inaccuracies in the representations and warranties of any other party hereto,
(b) extend the time for the performance of any of the obligations or acts of any other party hereto or (c) waive compliance
by the other party with any of the agreements contained herein or, except as otherwise provided herein, waive any of such party’s
conditions; provided that any waiver of Section 7.3(d) shall require the prior written consent of each Lender (as defined
in the Margin Loan Agreement). Notwithstanding the foregoing, no failure or delay by Liberty, SplitCo, Merger Sub or SiriusXM in exercising
any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right hereunder. Any agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of such party.
Section 10.3 Assignment.
Except as provided in Section 6.20, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned,
in whole or in part, by operation of Law or otherwise, by any of the parties without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties
hereto and their respective successors and permitted assigns. Any purported assignment not permitted under this Section 10.3 shall
be null and void.
Section 10.4 Counterparts.
This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
Section 10.5 Entire
Agreement; No Third-Party Beneficiaries. (a) This Agreement, each other Transaction Agreement, any agreement entered into at
the Closing in accordance with the terms of any Transaction Agreement, the Liberty Disclosure Schedule and the SiriusXM Disclosure Schedule
constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof and thereof and (b) except for the provisions of Section 6.10, this
Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.
Section 10.6 Governing
Law; Jurisdiction; Waiver of Jury Trial.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF CONFLICTS OF LAW THEREOF. Any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with,
this Agreement will be brought exclusively in the Court of Chancery of the State of Delaware (the “Delaware Chancery Court”),
or, if the Delaware Chancery Court does not have subject matter jurisdiction, in the federal courts located in the State of Delaware
(and in each case, any appellate courts therefrom). Each of the parties hereby irrevocably and unconditionally submits and consents to
personal jurisdiction in any such Action brought in any such court (and of the appropriate appellate courts therefrom), irrevocably agrees
that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and
irrevocably agrees that all claims in respect of such Action may be heard and determined in any such court and agrees not to bring any
Act arising out of or relating to this Agreement in any other court, and hereby irrevocably waives, to the fullest extent permitted by
Law, any objection that it may now or hereafter have to the laying of the venue of any such Action in any such court or that any such
Action brought in any such court has been brought in an inconvenient forum. Process in any such Action may be served on any party anywhere
in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service
of process on such party as provided in Section 10.8 shall be deemed effective service of process on such party.
(b) EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF SUCH ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.6.
Section 10.7 Specific
Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of
this Agreement in the courts specified in Section 10.6(a), without bond or other security being required, this being in addition
to any other remedy to which they are entitled at Law or in equity.
Section 10.8 Notices.
All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given (a) on the date
of delivery if delivered personally or sent by e-mail or (b) on the first (1st) Business Day following the date of dispatch
if sent by nationally recognized overnight courier (providing proof of delivery), in each case, to the parties at the following addresses;
provided, that, should any such delivery be made by e-mail, the sender shall also send a copy of the information so delivered
on or before the next Business Day by a nationally recognized overnight carrier; provided further, that if a recipient confirms
receipt of any such electronic mail communication, then there shall be no requirement that the sender send a copy of the information
so delivered by a nationally recognized overnight carrier:
If to the Special Committee, to:
Eddy W. Hartenstein
Lead Independent Director
c/o Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: General Counsel
E-Mail: [Separately provided]
with a copy (which shall not constitute notice)
to:
Debevoise & Plimpton LLP
66 Hudson Boulevard
New York, New York 10001
Attention: Michael A. Diz
William D. Regner
Katherine Durnan Taylor
E-Mail: madiz@debevoise.com
wdregner@debevoise.com
ketaylor@debevoise.com
If to SiriusXM or, following the Merger, SplitCo
or the Surviving Corporation to:
Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: Patrick Donnelly
E-Mail: [Separately provided]
with a copy (which shall not constitute notice)
to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: Eric Swedenburg, Esq.
Johanna Mayer, Esq.
E-Mail: eric.swedenburg@stblaw.com
Johanna.mayer@stblaw.com
If to Liberty or, prior to the Merger, SplitCo
or Merger Sub to:
Liberty Media Corporation
12300 Liberty Boulevard
Englewood, CO 80112
Attention: Chief Legal Officer
E-Mail: [Separately provided]
with a copy (which shall not constitute notice)
to:
O’Melveny & Myers L.L.P.
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Attention: |
C. Brophy Christensen |
|
Bradley L. Finkelstein |
|
Noah Kornblith |
E-mail: |
bchristensen@omm.com |
|
bfinkelstein@omm.com |
|
nkornblith@omm.com |
or such other address or e-mail address as such
party may hereafter specify by like notice to the other parties hereto.
Section 10.9 Severability.
If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable
of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby
are fulfilled to the extent possible.
Section 10.10 Definitions.
As used in this Agreement, the following terms have the meanings ascribed thereto below:
“2.75% Exchangeable
Senior Debentures” means the 2.75% Exchangeable Senior Debentures due 2049 issued under the 2.75% Exchangeable Senior Debentures
Indenture.
“2.75% Exchangeable
Senior Debentures Indenture” means the Indenture, dated as of November 26, 2019, by and among Liberty, as issuer, and
U.S. Bank National Association, as trustee (as amended or supplemented from time to time) relating to the 2.75% Exchangeable Senior Debentures.
“3.75% Convertible
Senior Notes” means the 3.75% Convertible Senior Notes due 2028 issued under the 3.75% Convertible Senior Notes Indenture.
“3.75% Convertible
Senior Notes Indenture” means the Indenture, dated as of March 10, 2023, by and among Liberty, as issuer, and U.S. Bank
Trust Company, National Association, as trustee (as amended or supplemented from time to time) relating to the 3.75% Convertible Senior
Notes.
“ABHI” means
Atlanta Braves Holdings, Inc., a Nevada corporation.
“ABHI Contribution”
means the “Contribution” as defined in the ABHI Tax Sharing Agreement.
“ABHI Debt-for-Equity
Exchange” means the “Debt-for-Equity Exchange” as defined in the ABHI Tax Sharing Agreement.
“ABHI Distribution”
means the “Distribution” as defined in the ABHI Tax Sharing Agreement.
“ABHI Split-Off”
means the “Transactions” and the “Debt-for-Equity Exchange,” in each case as defined in the ABHI Tax Sharing
Agreement.
“ABHI Split-Off Intended
Tax Treatment” means (a) the qualification of the ABHI Transactions, taken together, as a transaction described under
Section 368(a)(1)(D), 355 and 361 of the Code, (b) the non-recognition of income, gain or loss, by Liberty upon the receipt
of ABHI Stock in the ABHI Contribution, the distribution of ABHI Stock in the ABHI Distribution, or the transfer of ABHI Stock pursuant
to the ABHI Debt-for-Equity Exchange (except with respect to certain items of income or deduction attributable to the debt obligations
exchanged in the ABHI Debt-for-Equity Exchange), and (c) the nonrecognition of gain or loss by, and the absence of an inclusion
of an amount of income to, holders of Liberty Braves Common Stock and Liberty Formula One Common Stock upon the receipt of ABHI Stock
in the ABHI Distribution (except with respect to cash in lieu of fractional shares).
“ABHI Stock”
means “Splitco Stock” as defined in the ABHI Tax Sharing Agreement.
“ABHI Tax Sharing
Agreement” means the Tax Sharing Agreement dated as of July 18, 2023, by and between Liberty and ABHI, as filed with the
SEC on July 18, 2023.
“ABHI Transactions”
means the “Transactions” as defined in the ABHI Tax Sharing Agreement.
“Action”
means any demand, action, charge, claim, complaint, grievance, arbitration, administrative enforcement proceeding, suit, countersuit,
litigation, arbitration, prosecution, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding),
hearing, inquiry, audit, examination or investigation commenced or brought by any Person, or conducted or heard by or before, or otherwise
involving, any court, grand jury or other Governmental Authority or any arbitrator or arbitration panel.
“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with,
such Person; provided, that, for any purpose hereunder (other than Section 10.12), none of the Persons listed in clauses
(i)–(viii) shall be deemed to be Affiliates of any Person listed in any other such clause: (i) Liberty taken together
with its Subsidiaries and any of their respective Investees (except with respect to SplitCo and its Subsidiaries prior to the Split-Off
Effective Time), (ii) SplitCo taken together with its Subsidiaries and any of their respective Investees (except with respect to
Liberty and its Subsidiaries prior to the Split-Off Effective Time), (iii) Liberty TripAdvisor Holdings, Inc. taken together
with its Subsidiaries and any of their respective Investees, (iv) Liberty Broadband Corporation taken together with its Subsidiaries
and any of their respective Investees, (v) Qurate Retail, Inc. taken together with its Subsidiaries and any of their respective
Investees, (vi) Liberty Global plc taken together with its Subsidiaries and any of their respective Investees, (vii) Liberty
Latin America Ltd. taken together with its Subsidiaries and any of their respective Investees, and (viii) Atlanta Braves Holdings, Inc.
taken together with its Subsidiaries and any of their respective Investees. For this purpose, “control” (including, with
its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or
indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise. Notwithstanding the foregoing, for purposes of this Agreement,
(a) none of SiriusXM and its Subsidiaries shall be deemed to be Affiliates of any of Liberty, SplitCo, Merger Sub or any of their
respective Subsidiaries and (b) none of Liberty, SplitCo, Merger Sub or any of their respective Subsidiaries shall be deemed to
be Affiliates of SiriusXM or any of its respective Subsidiaries, in each case, for any periods prior to the Merger Effective Time. In
addition, for purposes of this Agreement, none of Liberty and its Subsidiaries shall be deemed to be Affiliates of SplitCo or any of
its Subsidiaries following the Split-Off Effective Time.
“Beneficially Own,”
“Beneficial Owner” and “Beneficial Ownership” and words of similar import have the meanings assigned
to such terms in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, and a Person’s Beneficial Ownership of
securities shall be calculated in accordance with the provisions of such rules.
“Business Day”
means a day except a Saturday, a Sunday or other day on which the banks in New York State are authorized or required by Law to be closed.
“Code” means
the United States Internal Revenue Code of 1986, as amended.
“Communications Act”
means the Communications Act of 1934, as amended, and the rules, regulations and published orders of the FCC thereunder.
“Contract”
means any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, license, lease, contract or other agreement,
instrument or obligation.
“Contributed Subsidiaries”
means the Subsidiaries of Liberty transferred or to be transferred to SplitCo pursuant to the Reorganization Agreement.
“Contribution”
has the meaning given to such term in the Reorganization Agreement.
“Debt Financing Source
Related Parties” means the Debt Financing Sources, together with their respective affiliates, and their respective directors,
officers, partners, members, employees, controlling Persons, attorneys, agents, advisors and the other Representatives of each of the
forgoing and successors and permitted assigns of each of the foregoing; provided, that neither SiriusXM nor any Affiliate or Subsidiary
of SiriusXM shall be deemed to be a Debt Financing Source Related Party; provided further that, for the avoidance of doubt, neither JPMorgan
nor Morgan Stanley, together with their respective affiliates, and their respective directors, officers, partners, members, employees,
controlling Persons, attorneys, agents, advisors and other Representatives, in their respective advisory capacities under the engagement
letters referenced in Section 3.6 and 5.6, shall be deemed to be a Debt Financing Source Related Party.
“Debt Financing Sources”
means each entity that is party to the Debt Commitment Letter or either Engagement Letter (in each case, other than SiriusXM Radio) that
has committed to provide, or agreed to arrange or be engaged in connection with, the Financing or the Alternative Financing, as applicable,
in each case as evidenced by the Debt Commitment Letter or either Engagement Letter, as applicable; provided, that in the event
that any additional Commitment Party (as defined in the Debt Commitment Letter) or Engagement Party (as defined in the applicable Engagement
Letter) is added as a party to the Debt Commitment Letter or any Engagement Letter, as applicable, pursuant to the terms of the Debt
Commitment Letter or Engagement Letters, as applicable, after the date hereof, the term “Debt Financing Sources” shall include
each such institution; provided further that, for the avoidance of doubt, neither JPMorgan nor Morgan Stanley, in their respective
advisory capacities under the engagement letters referenced in Section 3.6 and 5.6, shall be deemed to be a Debt Financing Source
Related Party.
“Event”
means event, occurrence, fact, condition, change, development or effect.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Existing Indentures”
means the 3.75% Convertible Senior Note Indenture and the 2.75% Exchangeable Senior Debentures Indenture.
“FCC” means
the Federal Communications Commission, including any bureau or division thereof acting on delegated authority.
“GAAP”
means generally accepted accounting principles in the United States.
“Governmental Authority”
means any federal, state, local, domestic, foreign or multinational government, court, arbitrator, regulatory or administrative agency,
commission or authority or other governmental instrumentality.
“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Investee”
of any Person means any Person in which such first Person owns or controls an equity or voting interest.
“Investment Agreement”
means, collectively, (i) that certain Investment Agreement, dated as of February 17, 2009, by and between Sirius XM Radio Inc.
and Liberty Radio (the “2009 Investment Agreement”) and (ii) that certain Assignment and Assumption of the 2009
Investment Agreement, dated as of November 15, 2013, by and among Sirius XM Radio Inc., SiriusXM and Liberty Radio assigning all
of Sirius XM Radio Inc.’s rights and obligations under the 2009 Investment Agreement to SiriusXM, in each case, as amended to date.
“Knowledge”
means (a) with respect to SiriusXM, the actual knowledge of any of the individuals set forth in Section 10.10(a) of
the SiriusXM Disclosure Schedule after due inquiry, (b) with respect to Liberty, the actual knowledge of any of the individuals
set forth in Section 10.10(b) of the Liberty Disclosure Schedule after due inquiry and (c) with respect to SplitCo
or Merger Sub, the actual knowledge of any of the individuals set forth in Section 10.10(c) of the Liberty Disclosure Schedule
after due inquiry.
“Laws” means
all laws (including common law), statutes, ordinances, codes, rules, regulations, decrees and orders of Governmental Authorities.
“Liabilities”
(and, with correlative meaning, “Liability”) means any and all indebtedness, liabilities, guarantees, commitments
and obligations, whether or not fixed, contingent or absolute, matured or unmatured, direct or indirect, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whether or not required by GAAP to be reflected in financial statements or disclosed in the notes
thereto, including those arising under any Action, Law, order, judgment, injunction or consent decree of any Governmental Authority or
any award of any arbitrator of any kind, and those arising under any contract, commitment or undertaking.
“Liberty Braves Common
Stock” has the meaning given to such term in the ABHI Tax Sharing Agreement.
“Liberty Combined
Group” means an affiliated, combined, consolidated, unitary or similar group for U.S. federal, state, local or foreign Tax
purposes, the common parent of which is or was Liberty, SplitCo or any of their respective Subsidiaries.
“Liberty Common Stock”
means, collectively, Liberty SiriusXM Common Stock, Liberty Live Common Stock, and Liberty Formula One Common Stock.
“Liberty Formula One
Common Stock” means, collectively, Series A Liberty Formula One Common Stock, Series B Liberty Formula One Common
Stock and Series C Liberty Formula One Common Stock.
“Liberty Live Common
Stock” means, collectively, Series A Liberty Live Common Stock, Series B Liberty Live Common Stock and Series C
Liberty Live Common Stock.
“Liberty Owned SiriusXM
Shares” means all of the shares of SiriusXM capital stock Beneficially Owned by Liberty and its Subsidiaries which, for the
avoidance of doubt, excludes shares owned by the executive officers and directors of Liberty in their respective individual capacities
or through entities for estate planning purposes as of immediately prior to the Split-Off Effective Time.
“Liberty Retained
Assets” has the meaning given to such term in the Reorganization Agreement.
“Liberty Retained
Businesses” has the meaning given to such term in the Reorganization Agreement.
“Liberty Split-Off
Representation Letters” means one or more customary representation letters from Liberty in a form reasonably agreed by Liberty
Tax Counsel, in support of the opinions referenced in Sections 7.3(c)(i) and 7.3(c)(ii).
“Liberty SiriusXM
Equity Awards” means outstanding equity awards with respect to Liberty SiriusXM Common Stock governed by the terms of a Liberty
Stock Plan.
“Liberty SiriusXM
Indebtedness Agreements” means, collectively, the Margin Loan Agreement, the 2.75% Exchangeable Senior Debentures and the 3.75%
Convertible Senior Notes.
“Liberty SiriusXM
Stock Option” means an outstanding option to purchase a share of Liberty SiriusXM Common Stock granted under a Liberty Stock
Plan.
“Liberty SiriusXM
Restricted Share” means an outstanding restricted share with respect to shares of Liberty SiriusXM Common Stock granted under
a Liberty Stock Plan.
“Liberty SiriusXM
Restricted Stock Units” means an outstanding restricted stock unit with respect to shares of Liberty SiriusXM Common Stock
granted under a Liberty Stock Plan.
“Liberty Stock Plans”
means the following plans approved by the Liberty Board of Directors: (a) the Liberty Media Corporation 2022 Omnibus Incentive Plan
(as amended), (b) the Liberty Media Corporation 2017 Omnibus Incentive Plan (as amended), the Liberty Media Corporation 2013 Nonemployee
Director Incentive Plan (Amended and Restated as of December 17, 2015 and (c) the Liberty Media Corporation 2013 Incentive
Plan (Amended and Restated as of March 31, 2015) (as amended).
“Liberty Tax Sharing
Parties” means Liberty and each of its Subsidiaries (other than SplitCo, Merger Sub or any of their respective Subsidiaries)
as of immediately before the Split-Off Effective Time.
“Liberty Tax Sharing
Policies” means the policies relating to Taxes included in the management and allocation policies adopted by the Board of Directors
of Liberty in connection with the reclassification of Liberty’s common stock on August 3, 2023.
“Liens”
means all liens, pledges, charges, mortgages, encumbrances, adverse rights or claims and security interests of any kind or nature whatsoever.
For the avoidance of doubt, Liens shall not include any transfer restrictions arising under federal and state securities Laws (including
as may be provided under the Securities Act and the “blue sky” Laws of the various States of the United States).
“LSXM Net Liabilities
Share Adjustment” has the meaning given to such term in the Reorganization Agreement.
“Margin Loan Agreement”
means that certain Third Amended and Restated Margin Loan Agreement, dated as of February 24, 2021 (as amended by that certain First
Amendment to Third Amended and Restated Margin Loan Agreement, dated as of March 6, 2023, and as may be further amended, restated,
amended and restated, supplemented or otherwise modified from time to time), by and among Liberty SIRI Marginco, as borrower, the lenders
from time to time party thereto, BNP Paribas, New York Branch, as administrative agent and BNP Paribas as calculation agent, which obligations
thereunder are secured by shares of SiriusXM Common Stock.
“Marginco Operating
Amendment” means the amendment, amendment and restatement or other modifications of the Fifth Amended and Restated Limited
Liability Company Operating Agreement of Liberty SIRI Marginco, dated as of March 23, 2018 (as amended, restated, supplemented,
or otherwise modified from time to time), on or prior to the Split-Off Effective Time to permit the contribution of Liberty SIRI Marginco
to SplitCo in connection with the Split-Off.
“Material Adverse
Effect” means, with respect to any party, means any Event that, individually or in the aggregate, is, or would reasonably be
expected to be, materially adverse to the business, assets, properties, liabilities, results of operations or financial condition of
such party and its Subsidiaries, taken as a whole; provided, however, that none of the following shall be deemed in and
of themselves, either alone or in combination, to constitute, nor shall any of the following be taken into account in determining whether
there has been, or would reasonably be expected to be, a Material Adverse Effect: (i) general economic conditions attributable to
the U.S. or global economy or financial, capital, securities or credit markets or Events therein (including changes in prevailing interest
rates, credit availability and liquidity, currency exchange rates, price levels or trading volumes in the United States or foreign securities
markets), (ii) general political conditions or Events (including any changes arising out of any outbreak or escalation of hostilities,
civil disobedience, sabotage, acts of terrorism, military action or war (whether or not declared) or any other national or international
calamity after the date hereof), (iii) weather conditions or Events due to natural disasters or the outbreak or worsening of an
epidemic, pandemic or other health crisis (including COVID-19) or other force majeure events, (iv) financial or security market
fluctuations or conditions, (v) any Event affecting the industries, markets or geographies in which such party and its Subsidiaries
operate or the regulatory or business conditions in any jurisdiction in which such party or its Subsidiaries has operations or in which
products or services of such party or its Subsidiaries is sold, (vi) any Event arising out of a change or proposed change in GAAP
or applicable Law, including in the repeal thereof, or in the enforcement thereof, after the date of this Agreement, (vii) any changes
in the relationship of such party or its Subsidiaries, contractual or otherwise, with customers, employees, unions, suppliers, distributors,
financing sources, partners or similar relationship or any resulting Event that was caused by the announcement, pendency or consummation
of the Transactions, (viii) any Event or announcement of any Event affecting the price or trading volume of such party’s capital
stock, the credit rating or other financial strength of such party or any of its Subsidiaries (provided that the events, occurrences,
facts, conditions, changes, developments or effects giving rise to or contributing to such change, if not otherwise excluded from this
definition of “Material Adverse Effect,” may be taken into account in determining whether a Material Adverse Effect has occurred
or would reasonably be expected to occur) or (ix) any failure in the financial or operating performance of such party to meet published
or unpublished revenue or earning projections, forecasts, expectations or budgets for any period (provided that the events, occurrences,
facts, conditions, changes, developments or effects giving rise to or contributing to such failure, if not otherwise excluded from this
definition of “Material Adverse Effect,” may be taken into account in determining whether a Material Adverse Effect has occurred
or would reasonably be expected to occur); provided, that in the cases of clauses (i) through (vi), any such Event which
disproportionately affects such party and its Subsidiaries relative to other participants in the industries in which such party or its
Subsidiaries operate shall not be excluded from the determination of whether there has been a Material Adverse Effect, but only to the
extent such Event so disproportionately affects such party and its Subsidiaries; provided further, that SiriusXM’s business,
assets, properties, liabilities, results of operations or financial condition and any Event with respect thereto shall be excluded for
purposes of any determination as to the existence of a “Material Adverse Effect” with respect to SplitCo, the SplitCo Business,
Liberty, Liberty SiriusXM or any Subsidiary of Liberty or SplitCo.
“Measurement Date”
has the meaning given to such term in the Reorganization Agreement.
“Nasdaq”
means The Nasdaq Stock Market LLC.
“Payoff Letters”
means customary payoff letters with respect to the Margin Loan Agreement from the agent and/or lenders thereto, which payoff letters
shall (i) provide for the payments required to be made to satisfy the condition to closing set forth in Section 7.3(d), (ii) authorize
the release of any Liens related to such indebtedness and (iii) otherwise be in form and substance reasonably satisfactory to SiriusXM.
“Person”
means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity, including
a Governmental Authority.
“Personal Information”
means data and information in any form or media that identifies an individual person or household, or which could be used to identify
or is otherwise related to an identifiable individual person or household, in addition to any definition for “personal information”
or any similar term provided by applicable Law or by SiriusXM or any of its Subsidiaries in any of its privacy policies, notices or contracts
(e.g., “personal data”, “personally identifiable information” or “PII”).
“Processing”
means the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, physical or administrative),
disposal, destruction, disclosure or transfer (including cross-border) of any data, including Personal Information.
“Redemption”
has the meaning given to such term in the Reorganization Agreement.
“Redemption Date”
has the meaning given to such term in the Reorganization Agreement.
“Refinancing Indebtedness”
means any indebtedness incurred by Liberty (with respect to the SplitCo Business, SplitCo and SplitCo’s Subsidiaries), SplitCo
or their respective Subsidiaries (with respect to the SplitCo Business) in exchange for, or the net proceeds of which are used to extend,
redeem, renew, replace, defease, refund or refinance in whole or in part the 2.75% Exchangeable Senior Debentures (including successive
refinancing thereof) (the “Refinanced Indebtedness”); provided that:
(a) the
principal amount (or accreted value or fair value, if applicable) of the Refinancing Indebtedness does not exceed the principal amount
of the Refinanced Indebtedness (or, if less, the portion of the principal amount (or accreted value or fair value, if applicable) required
to be paid in connection with the refinancing) plus the amount of accrued and unpaid interest on the Refinanced Indebtedness, any reasonable
premium required to be paid to the holders of the Refinanced Indebtedness under the terms of the Refinanced Indebtedness (and such other
amounts as agreed to by SiriusXM) and reasonable expenses incurred in connection with the incurrence of the Refinancing Indebtedness;
and
(b) either:
(i) (A) the
interest payable on such Refinancing Indebtedness shall be generally consistent with what SiriusXM would obtain for similar type of Refinancing
Indebtedness as reasonably determined by JPMorgan and Morgan Stanley; (B) shall not contain any right on the part of the holder
thereof to convert or exchange such indebtedness for equity; (C) the maturity date of such Refinancing Indebtedness shall be later
than the final maturity date of the indebtedness being refinanced; (D) other than as provided in (E), the Refinancing Indebtedness
shall contain rights to repurchase substantially similar to those contained in the indebtedness being refinanced; (E) (i) such
Refinancing Indebtedness shall be redeemable, at SplitCo’s option, with customary make-whole protection solely to the extent that
such make-whole protection would qualify as Assumed Indebtedness (as defined in the Reorganization Agreement) and otherwise without make-whole
protection, upon consummation of the Merger and (ii) such Refinancing Indebtedness may be assumed by SplitCo in the Merger without
requiring SplitCo or any other party to offer to repurchase such Refinancing Indebtedness and (F) the Refinancing Indebtedness shall
not contain terms, taken as a whole, that are more restrictive than the terms contained in the SiriusXM Credit Facility; or
(ii) the
Refinancing Indebtedness (A) shall be repayable at any time, in whole or in part, and, to the extent that any premiums or prepayment
penalties in respect of such repayment would not qualify as Assumed Indebtedness (as defined in the Reorganization Agreement), without
premium or penalty and (B) shall not contain any right on the part of the holder thereof to convert or exchange such indebtedness
for equity.
“Representatives”
means, as to any Person, that Person’s directors, officers, employees, investment bankers, financial advisors, attorneys, accountants,
agents, controlled affiliates, controlling persons and other representatives. As to Liberty, SplitCo and Merger Sub, “Representative”
specifically excludes SiriusXM and its Representatives and, as to SiriusXM, “Representative” specifically excludes Liberty,
SplitCo, Merger Sub and their respective Representatives, it being understood that the members of the SiriusXM Board of Directors who
are directors or officers of Liberty, SplitCo or Merger Sub shall be considered Representatives of Liberty, SplitCo or Merger Sub (as
applicable) and not of SiriusXM, for purposes of this Agreement.
“Restructuring”
has the meaning given to such term in the Reorganization Agreement.
“Restructuring Agreements”
has the meaning given to such term in the Reorganization Agreement.
“Section 253
Agreement” means that certain Agreement, dated as of November 1, 2021, by and between SiriusXM and Liberty, as amended
to date.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series A Liberty
Formula One Common Stock” means Series A Liberty Formula One common stock, par value $0.01 per share.
“Series B Liberty
Formula One Common Stock” means Series B Liberty Formula One common stock, par value $0.01 per share.
“Series C Liberty
Formula One Common Stock” means Series C Liberty Formula One common stock, par value $0.01 per share.
“Series A Liberty
Live Common Stock” means Series A Liberty Live common stock, par value $0.01 per share.
“Series B Liberty
Live Common Stock” means Series B Liberty Live common stock, par value $0.01 per share.
“Series C Liberty
Live Common Stock” means Series C Liberty Live common stock, par value $0.01 per share.
“Sirius/Liberty Tax
Sharing Agreement” means the Tax Sharing Agreement dated as of February 1, 2021, by and between Liberty and SiriusXM.
“SiriusXM
2015 Stock Plan” means the SiriusXM Holdings Inc. 2015 Long-Term Stock Incentive Plan.
“SiriusXM Combined
Group” means an affiliated, combined, consolidated, unitary or similar group for U.S. federal, state, local or foreign Tax
purposes, the common parent of which is or was SiriusXM or any of its Subsidiaries.
“SiriusXM Credit Facility”
means Credit Agreement, dated as of December 5, 2012 (as amended, amended and restated and otherwise modified from time to time),
among Sirius XM Radio, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and certain other parties thereto.
“SiriusXM Equity Awards”
means awards of the SiriusXM Restricted Stock Units and the SiriusXM Stock Options.
“SiriusXM Merger Representation
Letter” means a customary representation letter from SiriusXM in a form reasonably agreed by Liberty Tax Counsel and SiriusXM
Tax Counsel, in support of the opinions referenced in Sections 7.2(d) and 7.3(c)(iii).
“SiriusXM Promissory
Note” means the promissory note by and between SiriusXM Radio and SplitCo in the form of Exhibit C in an amount up to
$1.1 billion (which final amount shall be determined jointly by Liberty and SiriusXM) with such amendments, changes or modifications
consented to jointly by SiriusXM and Liberty (such consent, in each case, not to be unreasonably withheld, conditioned or delayed).
“SiriusXM Radio”
means Sirius XM Radio, Inc., a Delaware corporation, a wholly owned Subsidiary of SiriusXM.
“SiriusXM Restricted
Stock Units” means an award of restricted stock units under the SiriusXM Stock Plans evidencing the right to receive in specified
circumstances a certain number of shares of SiriusXM Common Stock or, in the discretion of SiriusXM, the equivalent value in cash, whether
subject to time-based or performance-based vesting conditions.
“SiriusXM Split-Off
Representation Letter” means a representation letter from SiriusXM substantially in the form of Exhibit D, with
such changes, updates or refinements consented to by SiriusXM and Liberty Tax Counsel (such consent not to be unreasonably withheld,
conditioned or delayed), as may be reasonably necessary to reflect any changes in, or clarifications of, facts or law prior to the Split-Off
Effective Time.
“SiriusXM Stock Options”
means a stock option to purchase shares of SiriusXM Common Stock.
“SiriusXM Stock Plan”
means, collectively, the SiriusXM 2015 Stock Plan, the 2014 AdsWizz Stock Incentive Plan, the Pandora Media, Inc. 2011 Equity Incentive
Plan and the Sirius XM Radio Inc. 2009 Long-Term Stock Incentive Plan.
“Special Committee”
means the committee of the Board of Directors of SiriusXM comprised of independent directors (as determined in accordance with the rules of
Nasdaq) formed for the purpose of reviewing the Transactions.
“Specified Litigation
Matter” has the meaning assigned to such term in the Reorganization Agreement.
“SplitCo Assets”
has the meaning assigned to such term in the Reorganization Agreement.
“SplitCo Business”
means the businesses attributed to Liberty SiriusXM as of immediately prior to the Contribution, including any subsequent changes thereto
as are permitted by this Agreement, in each case in accordance with the Liberty Charter Documents.
“SplitCo Common Stock”
means common stock of SplitCo, par value $0.001.
“SplitCo Equity Awards”
means equity awards with respect to SplitCo Common Stock governed by the terms of the SplitCo Transitional Plan.
“SplitCo Liabilities”
has the meaning given to such term in the Reorganization Agreement.
“SplitCo Merger Representation
Letter” means a customary representation letter from SplitCo in a form reasonably agreed by Liberty Tax Counsel and SiriusXM
Tax Counsel, in support of the opinions referenced in Sections 7.2(d) and 7.3(c)(iii).
“SplitCo Split-Off
Representation Letters” means one or more customary representation letters from SplitCo in a form reasonably agreed by Liberty
Tax Counsel, in support of the opinions referenced in Sections 7.3(c)(i) and 7.3(c)(ii).
“SplitCo Tax Sharing
Parties” means SplitCo or SiriusXM or any of their respective Subsidiaries as of immediately before the Split-Off Effective
Time.
"SplitCo Transitional
Plan” means the SplitCo Transitional Stock Adjustment Plan, in the form of Exhibit E hereto.
“Split-Off Effective
Time” means the time on the Redemption Date at which the Split-Off is completed.
“Split-Off Intended
Tax Treatment” means the following U.S. federal income Tax consequences in connection with the Split-Off Transactions:
(a) the
qualification of the Contribution and the Redemption, taken together, as a “reorganization” under Sections 355(a) and
368(a)(1)(D) of the Code;
(b) the
nonrecognition of income, gain or loss by Liberty on the assumption, by SplitCo, of the SplitCo Liabilities in the Contribution, except
(x) to the extent that the amount of the SplitCo Liabilities exceeds Liberty’s adjusted tax basis in the SplitCo Common Stock
or (y) as a result of any items of income, gain, deduction or loss recognized on a deemed exchange, pursuant to Treasury Regulations
Section 1.1001-3 of SplitCo Liabilities assumed in the Contribution;
(c) the
qualification of the Redemption as a transaction in which the SplitCo Common Stock transferred to holders of Liberty SiriusXM Common
Stock is “qualified property” for purposes of Section 355 and 361(c) of the Code (and neither Section 355(d) nor
Section 355(e) of the Code causes such SplitCo Common Stock to be treated as other than “qualified property” for
such purposes);
(d) the
nonrecognition of income, gain or loss by Liberty and SplitCo on the Contribution and the Redemption under Sections 355, 361, and/or
1032 of the Code, as applicable, other than intercompany items or excess loss accounts, if any, taken into account pursuant to the Treasury
Regulations promulgated pursuant to Section 1502 of the Code, the triggering or recapturing of any deferred gain or similar items
that is not excludable by reason of the tax-free status of the Contribution and Redemption, or any items of income, gain, deduction or
loss recognized on a deemed exchange, pursuant to Treasury Regulations Section 1.1001-3 of SplitCo Liabilities assumed in the Contribution;
and
(e) the
nonrecognition of income, gain or loss by holders of Liberty SiriusXM Common Stock upon the receipt of SplitCo Common Stock in the Redemption
(except with respect to the receipt of cash in lieu of fractional shares of SplitCo Common Stock) under Section 355 of the Code.
“Split-off Transactions”
means the Contribution and the Redemption.
“Subsidiary”
when used with respect to any Person, means (i) a corporation of which a majority in voting power of its share capital or capital
stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such Person,
by a Subsidiary of such Person, or by such Person and one or more Subsidiaries of such Person, whether or not such power is subject to
a voting agreement or similar Encumbrance, (ii) a partnership or limited liability company in which such Person or a Subsidiary
of such Person is, at the date of determination, (A) in the case of a partnership, a general partner of such partnership with the
power affirmatively to direct the policies and management of such partnership or (B) in the case of a limited liability company,
the managing member or, in the absence of a managing member, a member with the power affirmatively to direct the policies and management
of such limited liability company, or (iii) any other Person (other than a corporation) in which such Person, a Subsidiary of such
Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof, has
(A) the power to elect or direct the election of a majority of the members of the governing body of such Person, whether or not
such power is subject to a voting agreement or similar Encumbrance, or (B) in the absence of such a governing body, at least a majority
ownership interest or (iv) any other Person of which an aggregate of more than 50% of the voting equity interests are, at the time,
directly or indirectly, owned by such Person and/or one or more Subsidiaries of such Person. Notwithstanding the foregoing, for purposes
of this Agreement, none of SiriusXM and its Subsidiaries shall be deemed to be Subsidiaries of any of Liberty, SplitCo, Merger Sub or
any of their respective Subsidiaries for any periods prior to the Merger Effective Time.
“Tax” or
“Taxes” means any and all taxes, charges, fees, levies, customs, duties, tariffs, or other assessments, including
income, gross receipts, excise, real or personal property, sales, withholding, social security, retirement, unemployment, occupation,
use, goods and services, service use, license, value added, capital, net worth, payroll, profits, withholding, franchise, transfer and
recording taxes, fees and charges, and any other taxes, charges, fees, levies, customs, duties, tariffs or other assessments imposed
by the IRS or any Taxing Authority (whether domestic or foreign including any state, county, local or foreign government or any subdivision
or taxing agency thereof (including a United States possession)), whether computed on a separate, consolidated, unitary, combined or
any other basis; and such term shall include any interest thereon, fines, penalties, additions to tax, or additional amounts attributable
to, or imposed upon, or with respect to, any such taxes, charges, fees, levies, customs, duties, tariffs, or other assessments.
“Taxing Authority”
means any Governmental Authority imposing or responsible for the collection or administration of any Taxes.
“Tax Representation
Letters” means the Liberty Split-Off Representation Letters, the SiriusXM Merger Representation Letter, the SiriusXM Split-Off
Representation Letter, the SplitCo Merger Representation Letter and the SplitCo Split-Off Representation Letters.
“Tax Returns”
means any return, report, certificate, form or similar statement or document (including any related or supporting information or schedule
attached thereto and any information return, amended Tax Return, claim for refund or declaration of estimated Tax) supplied to or filed
with, or required to be supplied to or filed with, a Taxing Authority in connection with the determination, assessment or collection
of any Tax or the administration of any Laws, regulations or administrative requirements relating to any Tax.
“Tax Sharing Agreement”
means the Tax Sharing Agreement to be entered into by Liberty and SplitCo, in the form attached as Exhibit F hereto.
“Transaction Agreements”
means, collectively, this Agreement, the Reorganization Agreement, the Tax Sharing Agreement, the Restructuring Agreements and the Voting
Agreement, including all exhibits or annexes attached hereto or thereto.
“Transactions”
means, collectively, the transactions contemplated by the Transaction Agreements, including the Merger and the Split-Off.
“Treasury Regulations”
means the Treasury regulations promulgated under the Code.
“Walk-Away Date”
means November 15, 2024.
The following terms are defined
in the section of this Agreement set forth after such term below:
Term | |
Section |
Adjusted SiriusXM Restricted Stock Units | |
Section 2.3(b) |
Adjusted SiriusXM Stock Option | |
Section 2.3(a) |
Agreement | |
Preamble |
Alternative Financing | |
Section 5.12(b) |
Antitrust Laws | |
Section 6.6(a) |
Assigned Obligations | |
Section 6.20(b) |
Assigned Rights | |
Section 6.20(b) |
Bankruptcy and Equity Exception | |
Section 3.3(a) |
Book-Entry Shares | |
Section 2.2(b) |
Certificate of Merger | |
Section 1.3 |
Certificates | |
Section 2.2(b) |
Claim | |
Section 6.10(b) |
Closing | |
Section 1.2 |
Closing Date | |
Section 1.2 |
Debt Commitment Letter | |
Section 5.12(a) |
Delaware Chancery Court | |
Section 10.6(a) |
DGCL | |
Recitals |
DLLCA | |
Recitals |
D&O Tail Policy | |
Section 6.10(c) |
Engagement Letter | |
Section 5.12(b) |
Exchange Agent | |
Section 2.2(a) |
Exchange Agent Agreement | |
Section 2.2(a) |
Exchange Fund | |
Section 2.2(a) |
FCC Submission | |
Section 6.6(c) |
Fee Letter | |
Section 5.12(b) |
Financed Amount | |
Section 5.12(a) |
Financing | |
Section 5.12(a) |
Financing Commitments | |
Section 5.12(a) |
Form S-4 | |
Section 3.3(b)(iv) |
Indemnitee | |
Section 6.10(a) |
Indemnitees | |
Section 6.10(a) |
Lenders | |
Section 5.12(a) |
Liberty | |
Preamble |
Liberty Adverse Recommendation Change | |
Section 6.4(c) |
Liberty Balance Sheet Date | |
Section 3.4(b) |
Liberty Board Recommendation | |
Section 6.1(b) |
Liberty Charter Documents | |
Section 3.1(b) |
Liberty Designees | |
Section 1.6(b) |
Liberty Disclosure Schedule | |
ARTICLE III |
Liberty FCC Approvals | |
Section 3.3(b)(iv) |
Liberty FCC Issue | |
Section 6.6(c) |
Term | |
Section |
Liberty Interest | |
Section 5.10 |
Liberty Preferred Stock | |
Section 3.2(a) |
Liberty Radio | |
Recitals |
Liberty SEC Documents | |
Section 3.4(a) |
Liberty SIRI Marginco | |
Recitals |
Liberty SiriusXM | |
Recitals |
Liberty SiriusXM Common Stock | |
Section 3.2(a) |
Liberty Stockholder Approval | |
Section 3.3(e) |
Liberty Stockholders Meeting | |
Section 6.1(b) |
Liberty Tax Counsel | |
Section 7.3(c) |
Merger | |
Section 1.1 |
Merger Consideration | |
Section 2.1(a)(i) |
Merger Effective Time | |
Section 1.3 |
Merger Intended Tax Treatment | |
Section 7.2(d) |
Merger Sub | |
Preamble |
Merger Sub Organizational Documents | |
Section 4.1(c) |
Merger Sub Member Consent | |
Recitals |
Morgan Stanley | |
Section 5.6 |
No-Action Letter | |
Section 6.14(a) |
Other Indemnitors | |
Section 6.10(f) |
Prospectus / Proxy Statement | |
Section 3.3(b)(iv) |
Public Announcement | |
Section 6.7 |
Reorganization Agreement | |
Recitals |
Requisite FCC Approvals | |
Section 5.3(b)(iv) |
Requisite Regulatory Approvals | |
Section 7.1(c) |
Restraints | |
Section 7.1(e) |
Retained Obligations | |
Section 6.20(b) |
Retained Rights | |
Section 6.20(b) |
SEC | |
Section 2.4(b) |
Series A Liberty SiriusXM Common Stock | |
Section 3.2(a) |
Series B Liberty SiriusXM Common Stock | |
Section 3.2(a) |
Series C Liberty SiriusXM Common Stock | |
Section 3.2(a) |
Significant Stockholders | |
Recitals |
SiriusXM | |
Preamble |
SiriusXM Balance Sheet Date | |
Section 5.4(b) |
SiriusXM Charter Documents | |
Section 5.1(c) |
SiriusXM Common Stock | |
Section 2.1(a)(i) |
SiriusXM Designees | |
Section 1.6(a) |
SiriusXM Disclosure Schedule | |
Article V |
SiriusXM Exchange Ratio | |
Section 2.1(a)(i) |
SiriusXM FCC Approvals | |
Section 5.3(b)(iv) |
SiriusXM Material Adverse Effect | |
Section 5.1(a) |
SiriusXM Preferred Stock | |
Section 5.2(a) |
SiriusXM Representatives | |
Section 6.5(a) |
Term | |
Section |
SiriusXM SEC Documents | |
Section 5.4(a) |
SiriusXM Stockholder Consent | |
Recitals |
SiriusXM Subsidiary Documents | |
Section 5.1(c) |
SiriusXM Takeover Proposal | |
Section 6.5(d) |
SiriusXM Tax Counsel | |
Section 7.2(d) |
Solomon | |
Section 5.6 |
SplitCo | |
Preamble |
SplitCo A&R Bylaws | |
Section 1.5(a) |
SplitCo A&R Charter | |
Section 1.5(a) |
SplitCo Bylaws | |
Section 1.5(a) |
SplitCo Charter | |
Section 1.5(a) |
SplitCo Charter Documents | |
Section 4.1(c) |
SplitCo FCC Approvals | |
Section 4.3(b)(iv) |
SplitCo Material Adverse Effect | |
Section 3.1(a) |
SplitCo Public Charter Documents | |
Section 1.5(a) |
SplitCo Stockholder Consent | |
Recitals |
SplitCo Sub Merger | |
Recitals |
SplitCo Subsidiary Documents | |
Section 4.1(c) |
SplitCo Takeover Proposal | |
Section 6.4(d) |
Split-Off | |
Recitals |
Surviving Corporation | |
Section 1.1 |
Surviving Corporation Common Stock | |
Section 2.1(a)(iii) |
Terminating Tax Sharing Agreements | |
Section 6.13(b) |
Termination Fee | |
Section 9.3(a) |
Transaction Litigation | |
Section 6.11(a) |
Transfer Agent | |
Section 2.2(a) |
Transfer Agent Agreement | |
Section 2.2(a) |
Voting Agreement | |
Recitals |
Section 10.11 Interpretation.
(a) When
a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article of,
a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever
the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any
agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto
and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. References to assets,
liabilities and businesses “attributed to Liberty SiriusXM” when used in this Agreement shall in all cases exclude the assets,
liabilities and businesses of SiriusXM and its Subsidiaries. References to the “SplitCo Business” when used in this Agreement
shall in all cases exclude the assets, liabilities and businesses of SiriusXM and its Subsidiaries. References to the “SplitCo
Assets” when used in this Agreement shall in all cases exclude the assets of SiriusXM and its Subsidiaries.
(b) The
parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
Section 10.12 Debt
Financing Sources. Notwithstanding anything in this Agreement to the contrary, but subject to the proviso to this Section 10.12,
each of Liberty, on behalf of itself and its Affiliates (without giving effect to the first proviso of the definition thereof) and Subsidiaries
and each of their respective stockholders, partners and other equity holders, successors, heirs or representatives (in each case, to
the extent any such Person is not party hereto, only to the extent such Person is controlled by any party hereto or can otherwise be
bound hereby) (“Liberty Related Parties”), but not for the avoidance of doubt SiriusXM or any of its Subsidiaries, hereby:
(i) agrees that any Action, whether in law or in equity, whether in contract or in tort or otherwise, involving any Debt Financing
Source Related Party and arising out of or relating to, this Agreement, the Financing or the Alternative Financing or any of the agreements
entered into in connection with the Financing or the Alternative Financing or any of the transactions contemplated by this Agreement
and the Transaction Agreements or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal
or state court in the Borough of Manhattan, New York, New York, and any appellate court thereof and irrevocably submits itself and its
property with respect to any such Action to the exclusive jurisdiction of such court, and such Action (except to the extent relating
to the interpretation of any provisions in this Agreement (including any provision in any documentation related to the Financing or the
Alternative Financing that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance
with the laws of the State of Delaware) which shall be governed by and construed in accordance with the laws of the State of Delaware)
shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in
the application of the laws of another jurisdiction), (ii) agrees not to bring, or permit any of their respective successors, heirs
or representatives, any of other Liberty Related Party to bring, or support any Action of any kind or description, whether in law or
in equity, whether in contract or in tort or otherwise, against any Debt Financing Source Related Party in any way arising out of or
relating to, this Agreement, the Financing or the Alternative Financing or any of the transactions contemplated by this Agreement and
the Transaction Agreements or thereby or the performance of any services thereunder in any forum other than any federal or state court
in the Borough of Manhattan, New York, New York, (iii) agrees that service of process upon Liberty’s or its Subsidiaries or
any other Liberty Related Party in any Action of any kind or description, whether in law or in equity, whether in contract or in tort
or otherwise, involving any Debt Financing Source Related Party in any way arising out of or relating to, this Agreement, the Financing
or the Alternative Financing or any of the transactions contemplated by this Agreement and the Transaction Agreements or thereby, or
the performance of any services thereunder shall be effective if notice is given in accordance with Section 10.8, (iv) irrevocably
waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any Action of
any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, involving any Debt Financing Source
Related Party in any way arising out of or relating to, this Agreement, the Financing or the Alternative Financing or any of the transactions
contemplated by this Agreement and the Transaction Agreements or thereby, or the performance of any services thereunder in any such court,
(v) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable law all rights of trial by jury
in any Action brought against any Debt Financing Source Related Party in any way arising out of or relating to, this Agreement, the Financing
or the Alternative Financing or any of the transactions contemplated by this Agreement and the Transaction Agreements or thereby or the
performance of any services thereunder, (vi) agrees that no Debt Financing Source Related Party shall be subject to any special,
consequential, punitive or indirect damages or damages of a tortious nature related to any Action of any kind or description, whether
in law or in equity, whether in contract or in tort or otherwise, involing any Debt Financing Source Related Party in any way arising
out of or relating to, this Agreement, the Financing or the Alternative Financing or any of the transactions contemplated by this Agreement
and the Transaction Agreements or thereby, or the performance of any services thereunder, (vii) agrees that no Debt Financing Source
Related Party will have any liability (including any special, consequential, punitive or indirect damages) to Liberty or its Affiliates
or any other Liberty Related Party in connection with this Agreement, the Financing or the Alternative Financing or any of the agreements
entered into in connection with the Financing or the Alternative Financing or any of the transactions contemplated by this Agreement
and the Transaction Agreements or the performance of any services thereunder, whether in law or in equity, whether in contract or in
tort or otherwise (in each case, other SiriusXM and its Subsidiaries), and hereby waives any rights or claims against any Debt Financing
Source Related Party, in each case, relating to or arising out of this Agreement, the Financing or the Alternative Financing, the Debt
Commitment Letter, any of the agreements entered into in connection with the Financing or the Alternative Financing or any of the transactions
contemplated by this Agreement and the Transaction Agreements or the performance of any services thereunder, whether in law or in equity,
whether in contract or in tort or otherwise (provided, that, notwithstanding the foregoing, nothing herein shall affect the rights
and/or claims of SiriusXM against the Debt Financing Source Related Parties with respect to the Financing or the Alternative Financing,
the Debt Commitment Letter, any definitive agreement with respect to the Financing or the Alternative Financing entered into on the Closing
Date or any of the transactions contemplated by this Agreement and the Transaction Agreements or the performance of any services thereunder),
(viii) agrees that SiriusXM may assign its rights and obligations hereunder (while remaining liable for its obligations hereunder)
to the Debt Financing Sources pursuant to the terms of the Financing or the Alternative Financing for purposes of creating a security
interest herein or otherwise assigning as collateral in respect of the Financing or the Alternative Financing and (ix) agrees that
the Debt Financing Source Related Parties are express third party beneficiaries of, and may enforce, the foregoing agreements in this
Section 10.12 and such provisions (and any other provision of this Agreement to the extent an amendment, supplement, waiver
or other modification of such provision would modify the substance of this Section 10.12) shall not be amended in any way
materially adverse to any Debt Financing Source Related Parties without the prior written consent of any Debt Financing Source; provided
that nothing in this Section 10.12 shall in any way limit or modify any Debt Financing Source’s obligations to
SiriusXM under the Debt Commitment Letter or any other agreement relating to the Financing or the Alternative Financing.
[Signature page follows.]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and delivered as of the date first above written.
|
LIBERTY
MEDIA CORPORATION |
|
|
|
By:
|
/s/
Gregory B. Maffei |
|
Name:
|
Gregory
B. Maffei |
|
Title:
|
President
and Chief Executive Officer |
|
|
|
SIRIUS
XM HOLDINGS INC. |
|
|
|
By:
|
/s/
Patrick L. Donnelly |
|
Name:
|
Patrick
L. Donnelly |
|
Title:
|
Executive
Vice President, General Counsel and Secretary |
|
|
|
LIBERTY
SIRIUS XM HOLDINGS INC. |
|
|
|
By:
|
/s/
Renee L. Wilm |
|
Name:
|
Renee
L. Wilm |
|
Title:
|
Chief
Legal Officer and Chief
Administrative Officer |
|
|
|
RADIO
MERGER SUB, LLC |
|
|
|
By:
Liberty Sirius XM Holdings Inc., |
|
its
Sole and Managing Member |
|
|
|
By:
|
/s/
Renee L. Wilm |
|
Name:
|
Renee
L. Wilm |
|
Title:
|
Chief
Legal Officer and Chief
Administrative Officer |
[Signature Page to
Merger Agreement]
List of Omitted Exhibits
The following exhibits and schedules to the Agreement
and Plan of Merger, dated as of December 11, 2023, by and among Liberty Media Corporation, Liberty Sirius XM Holdings Inc., Radio
Merger Sub, LLC and Sirius XM Holdings Inc. have not been provided herein:
Exhibit A-1 -Form of SplitCo Amended
and Restated Certificate of Incorporation
Exhibit A-2 - Form of SplitCo Amended
and Restated Bylaws
Exhibit B-1 - Form of SiriusXM Amended
and Restated Certificate of Incorporation
Exhibit B-2 - Form of SiriusXM Amended
and Restated Bylaws
Exhibit C - Form of SiriusXM Promissory
Note
Exhibit D - Form of SiriusXM Split-Off
Tax Opinion Representation Letter
Exhibit E - Form of SplitCo Transitional
Stock Adjustment Plan
Exhibit F - Form of Tax Sharing Agreement
The registrant hereby undertakes to furnish supplementally
a copy of any omitted exhibit to the Securities and Exchange Commission upon request.
EXHIBIT 10.1
EXECUTION VERSION
REORGANIZATION AGREEMENT
by and among
LIBERTY MEDIA CORPORATION,
Liberty
Sirius XM Holdings Inc.
and
SIRIUS XM HOLDINGS INC.
Dated as of December 11, 2023
TABLE OF CONTENTS
Page
ARTICLE I
RESTRUCTURING AND CONTRIBUTION |
2 |
1.1 |
Restructuring |
2 |
1.2 |
Transfer of SplitCo Assets and SplitCo Businesses;
Assumption of SplitCo Liabilities |
3 |
1.3 |
Restructuring and Redemption Agreements |
3 |
1.4 |
Qualification as Reorganization |
4 |
|
|
|
ARTICLE II
REDEMPTION |
4 |
2.1 |
The Redemption |
4 |
2.2 |
Liberty Media Conditions to the Redemption |
6 |
2.3 |
Mutual Conditions to the Redemption |
7 |
2.4 |
Treatment of Outstanding Equity Awards |
7 |
|
|
|
ARTICLE III
REPRESENTATIONS AND WARRANTIES |
8 |
3.1 |
Representations and Warranties of the Parties |
8 |
3.2 |
No Conflict with Instruments |
9 |
3.3 |
No Other Reliance |
9 |
|
|
|
ARTICLE IV
COVENANTS |
10 |
4.1 |
Cross-Indemnities |
10 |
4.2 |
Liberty Media Officer’s Certificate |
15 |
4.3 |
Further Assurances |
16 |
4.4 |
Specific Performance |
16 |
4.5 |
Access to Information |
16 |
4.6 |
Confidentiality |
17 |
4.7 |
Notices Regarding Transferred Assets |
18 |
4.8 |
Tax Treatment of Payments |
18 |
4.9 |
Allocated Executive Payments |
18 |
4.10 |
Director and Officer Indemnification |
18 |
|
|
|
ARTICLE V
CLOSING |
19 |
5.1 |
Closing |
19 |
5.2 |
Deliveries at Closing |
19 |
|
|
|
ARTICLE VI
TERMINATION |
20 |
6.1 |
Termination |
20 |
6.2 |
Effect of Termination |
20 |
|
|
|
ARTICLE VII
MISCELLANEOUS |
20 |
7.1 |
Definitions |
20 |
7.2 |
Survival; No Third-Party Rights |
32 |
7.3 |
Notices |
32 |
7.4 |
Entire Agreement |
34 |
7.5 |
Binding Effect; Assignment |
34 |
7.6 |
Governing Law; Jurisdiction |
34 |
7.7 |
Waiver of Jury Trial |
35 |
7.8 |
Severability |
35 |
7.9 |
Amendments; Waivers |
35 |
7.10 |
No Strict Construction; Interpretation |
36 |
7.11 |
Conflicts with Tax Sharing Agreement |
36 |
7.12 |
Counterparts |
36 |
EXHIBIT A – Certain Definitions
EXHIBIT B-1 – Form of SplitCo
Charter
EXHIBIT B-2 – Form of SplitCo
Bylaws
EXHIBIT C – Restructuring Plan
EXHIBIT D – SplitCo Assets
EXHIBIT E – SplitCo Equity Plan
EXHIBIT F – SplitCo Liabilities
EXHIBIT G – Form of Tax Sharing
Agreement
REORGANIZATION AGREEMENT
This REORGANIZATION AGREEMENT
(together with all Schedules and Exhibits hereto, this “Agreement”), dated as of December 11, 2023, is entered
into by and among LIBERTY MEDIA CORPORATION, a Delaware corporation (“Liberty Media”), LIBERTY SIRIUS XM
HOLDINGS INC., a Delaware corporation (“SplitCo”), and SIRIUS XM HOLDINGS INC., a Delaware corporation
(“SiriusXM”). Certain capitalized terms used herein have the meanings ascribed thereto in Section 7.1 or Exhibit A.
RECITALS:
WHEREAS,
prior to the Redemption (as defined below), SplitCo is a wholly owned Subsidiary of Liberty Media;
WHEREAS,
in accordance with and pursuant to the Liberty Charter Documents (as defined below), the businesses, assets and liabilities of Liberty
Media are currently attributed to three tracking stock groups: the Liberty SiriusXM Group (“Liberty SiriusXM”), the
Formula One Group and the Liberty Live Group;
WHEREAS,
concurrently herewith, Liberty Media, SplitCo, Radio Merger Sub, LLC, a Delaware limited liability company and a wholly owned Subsidiary
of SplitCo (“Merger Sub”), and SiriusXM have entered into that certain Agreement and Plan of Merger, dated as of the
date hereof (the “Merger Agreement”), pursuant to which the parties thereto intend to effectuate the Merger (as defined
in the Merger Agreement), whereby Merger Sub will be merged with and into SiriusXM, with SiriusXM surviving the Merger as the surviving
corporation and a wholly owned subsidiary of SplitCo;
WHEREAS,
in connection with, and immediately prior to the consummation of the Merger, the Liberty Board has determined that it is appropriate
and in the best interests of Liberty Media and its stockholders to reorganize its businesses, assets and liabilities by means of the
split-off of SplitCo from Liberty Media, such that, at the Effective Time, the businesses, assets and liabilities of SplitCo will consist
of the SplitCo Assets, the SplitCo Businesses and the SplitCo Liabilities;
WHEREAS,
following approval by the Liberty Board, the SplitCo Board has duly adopted, and Liberty Media as the sole stockholder of SplitCo has
approved, effective as of the Effective Time (as defined below), the SplitCo Transitional Plan;
WHEREAS,
the SplitCo Board has duly adopted, and Liberty Media as the sole stockholder of SplitCo has approved, effective as of the closing of
the Merger (the “Merger Closing”), the SplitCo Equity Plan;
WHEREAS,
the parties desire to effect the transactions contemplated by this Agreement, including the Restructuring (as defined below) and the
redemption of each outstanding share of Liberty Media’s Series A Liberty SiriusXM common stock, par value $0.01 per share
(“LSXMA”), Liberty Media’s Series B Liberty SiriusXM common stock, par value $0.01 per share (“LSXMB”),
and Liberty Media’s Series C Liberty SiriusXM common stock, par value $0.01 per share (“LSXMK” and, together
with LSXMA and LSXMB, the “Liberty SiriusXM Common Stock”), in exchange for a number of shares of SplitCo’s
common stock, par value $0.001 per share (the “SplitCo Common Stock”), equal to the Exchange Ratio (as defined below)
(such redemption and exchange, collectively, the “Redemption”), provided, that no fractional shares of SplitCo
Common Stock shall be issued as a result of the Redemption and, in lieu of the issuance of fractional shares, holders of record who would
have otherwise been entitled to receive such fractional shares shall be entitled to receive cash in lieu thereof, in all events, as more
fully described, and subject to the conditions described, herein;
WHEREAS,
the transactions contemplated by this Agreement, including the Restructuring and the Split-Off Transactions (as defined below), have
been approved by the Liberty Board and/or the SplitCo Board, as applicable, and are motivated in whole or substantial part by certain
substantial corporate business purposes of Liberty Media and SplitCo, including the Merger;
WHEREAS,
the transactions contemplated by this Agreement, including the Contribution (as defined below) and the Redemption (together, the “Split-Off
Transactions”), are intended to qualify under, among other provisions, Section 355, Section 368(a)(1)(D) and
related provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and are expected to accomplish certain
corporate business purposes of Liberty Media and SplitCo (which corporate business purposes are substantially unrelated to U.S. federal
tax matters);
WHEREAS,
this Agreement constitutes a “plan of reorganization” within the meaning of Section 368 of the Code and the Treasury
Regulations promulgated thereunder; and
WHEREAS,
the parties wish to set forth in this Agreement the terms on which, and the conditions subject to which, they intend to implement the
measures referred to above and elsewhere herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged, the parties to this Agreement
hereby agree as set forth herein.
ARTICLE I
RESTRUCTURING AND CONTRIBUTION
1.1 Restructuring.
In accordance with and subject to the provisions of this Agreement, the parties have taken or will take, and have caused or will cause
their respective Subsidiaries to take, all actions that are necessary or appropriate to implement and accomplish the transactions contemplated
by each of the steps set forth in the Restructuring Plan, including the Contribution (collectively, the “Restructuring”)
and the execution and delivery of the Restructuring Agreements (as defined below), at or prior to the Effective Time.
1.2 Transfer
of SplitCo Assets and SplitCo Businesses; Assumption of SplitCo Liabilities. On the terms and subject to the conditions of this Agreement,
and in furtherance of the Restructuring and the Split-Off Transactions:
(a) Liberty
Media, by no later than immediately before the Effective Time, but subject to Section 2.2 and Section 2.3 hereof, shall (i) cause
all of its (and its Subsidiaries’) rights, title and interest in and to all of the SplitCo Assets and SplitCo Businesses to be
contributed, assigned, transferred, conveyed and delivered, directly or indirectly, to SplitCo, and SplitCo agrees to, or to cause its
Subsidiaries to, accept or cause to be accepted all such rights, title and interest in and to all of the SplitCo Assets and SplitCo Businesses;
and (ii) cause all of the SplitCo Liabilities to be assigned, directly or indirectly, to or to be incurred by SplitCo or its Subsidiaries,
and SplitCo agrees to, or cause its Subsidiaries to, accept, assume, perform, discharge and fulfill all of the SplitCo Liabilities in
accordance with their respective terms (the transactions contemplated by clauses (i) and (ii), collectively, the “Contribution”).
All SplitCo Assets and SplitCo Businesses are being transferred on an “as is, where is” basis, without any warranty or representation
whatsoever on the part of Liberty Media except as otherwise expressly set forth herein or in the Restructuring Agreements, the Merger
Agreement or the Tax Sharing Agreement. For the avoidance of doubt, in the Contribution, SplitCo shall not acquire any right, title or
interest in any Liberty Retained Assets and shall not assume any Liberty Retained Liabilities.
(b) Upon
completion of the Contribution: (i) SplitCo will own, directly or indirectly, the SplitCo Businesses and the SplitCo Assets and
be subject, directly or indirectly, to the SplitCo Liabilities; and (ii) Liberty Media will continue to own, directly or indirectly,
the Liberty Retained Businesses and the Liberty Retained Assets and continue to be subject, directly or indirectly, to the Liberty Retained
Liabilities.
(c) If,
following the Effective Time: (i) any SplitCo Asset or other property, right or asset forming part of the SplitCo Businesses has
not been transferred to SplitCo or another SplitCo Entity, Liberty Media undertakes to as promptly as practicable transfer, or procure
the transfer of, such property, right, or asset to SplitCo or another SplitCo Entity designated by SplitCo and reasonably acceptable
to Liberty Media as soon as practicable and for no additional consideration; or (ii) any Liberty Retained Asset, property, right
or asset forming part of the Liberty Retained Businesses has been transferred to SplitCo or another SplitCo Entity, SplitCo undertakes
to as promptly as practicable transfer, or procure the transfer of, such property, right or asset to Liberty Media or another Liberty
Entity designated by Liberty Media and reasonably acceptable to SplitCo as soon as practicable and for no additional consideration. The
parties intend that any property, right or asset that is transferred pursuant to this Section 1.2(c) shall be treated for U.S.
federal income and other applicable tax purposes as having been transferred (as part of the Contribution) or assumed or retained prior
to the Redemption, as the case may be, to the extent permitted by applicable Law.
1.3 Restructuring
and Redemption Agreements. All Restructuring Agreements and other agreements and instruments used to effect the Redemption shall
be in a form reasonably satisfactory to Liberty Media, SplitCo and SiriusXM (through the Special Committee), and once executed, may not
be amended without the prior written consent of Liberty Media, SplitCo and SiriusXM (through the Special Committee), which consent shall
not be unreasonably withheld, conditioned or delayed; provided, however, that this Section 1.3 shall not apply to
(a) any documents or instruments relating to the approval of any of the transactions contemplated by the Transaction Agreements
by any board of directors, board of managers or similar governing body (or any committee thereof) or stockholders or other equityholders
of Liberty Media, SplitCo, Merger Sub or SiriusXM, as applicable or (b) any indebtedness permitted to be incurred pursuant to Section 6.2
of the Merger Agreement; provided, further, that SiriusXM and the Special Committee shall have a reasonable opportunity
to review and comment on any notices, certificates, press releases, supplemental indentures, legal opinions, officers’ certificates
or other documents or instruments required to be delivered under the Existing Indentures (as defined in the Merger Agreement) pursuant
to Section 6.22(a) of the Merger Agreement, prior to the dispatch or making thereof and Liberty Media and SplitCo shall give
due consideration to any such comments proposed by SiriusXM and the Special Committee. Notwithstanding the foregoing, the requirement
to provide any documents or instruments pursuant to this Section 1.3 shall, in all cases, be subject to any bona fide concerns of
loss of attorney-client privilege and attorney work product protections that Liberty Media and SplitCo may in their good faith judgment
reasonably have and any restrictions contained in Contracts to which Liberty Media, SplitCo or any of their Subsidiaries is a party (it
being understood that each of Liberty Media and SplitCo shall use its reasonable best efforts to provide any such information in a manner
that does not result in such loss of privilege or protection or violation).
1.4 Qualification
as Reorganization. For U.S. federal income tax purposes, (1) the Split-Off Transactions are generally intended to be undertaken
in a manner so that no gain or loss is recognized (and no income is taken into account) by Liberty Media, SplitCo or their respective
Subsidiaries (except to the extent that the amount of the SplitCo Liabilities exceeds Liberty Media’s adjusted tax basis in the
SplitCo Common Stock, except as a result of any items of income, gain, deduction or loss recognized on a deemed exchange, pursuant to
Treasury Regulations Section 1.1001-3, of SplitCo Liabilities assumed in the Contribution, or as a result of any intercompany items
taken into account pursuant to the Treasury Regulations promulgated under Section 1502 of the Code), (2) the Merger, taken
together with the Contribution pursuant to the Reorganization, is intended to qualify as an “exchange” described in Section 351
of the Code and (3) the Split-Off Transactions are intended to qualify as a “reorganization” under Sections 368(a)(1)(D) and
355 of the Code. Liberty Media and SplitCo agree that this Agreement constitutes a “plan of reorganization” within the meaning
of Section 368 of the Code and the Treasury Regulations promulgated thereunder.
ARTICLE II
REDEMPTION
2.1 The
Redemption.
(a) The
Liberty Board shall have the authority and right, subject to compliance with the Merger Agreement, to (i)(x) effect the Redemption,
subject to the conditions set forth in Section 2.2 and Section 2.3, or (y) terminate the Redemption at any time prior
to the time at which the Redemption will be effective (the “Effective Time”) (solely, in the case of this clause (y),
if the Merger Agreement has been terminated in accordance with its terms), (ii) to establish or change the date and time of the
record date for the meeting of stockholders of Liberty Media (the “Stockholder Meeting”) at which, among other things,
the holders of record of shares of LSXMA and LSXMB will be asked to vote on the Redemption in accordance with Article IV, Section A.2(e)(i) of
the Liberty Charter, and (iii) to establish or change the date and time of the Stockholder Meeting, subject to, in all cases, any
applicable provisions of the DGCL, any other applicable Law and the Liberty Charter.
(b) Upon
the satisfaction or, if permissible, waiver of the conditions set forth in Article VII of the Merger Agreement (other than Section 7.1(b) and
Section 7.1(h)), the parties thereto shall promptly provide the confirmation contemplated in Section 2.2 that the Merger Closing
will occur subject only to the Effective Time.
(c) Prior
to the Effective Time, and in all respects in accordance with the Restructuring Plan, SplitCo shall (i) cause the certificate of
incorporation of SplitCo and bylaws of SplitCo to be amended and restated so as to read in their entirety in the forms set forth in Exhibit B-1
and Exhibit B-2, respectively (such amended and restated certificate of incorporation of SplitCo, the “SplitCo
Charter” and such amended and restated bylaws of SplitCo, the “SplitCo Bylaws”), and (ii) cause the
SplitCo Charter to be filed with the Secretary of State of the State of Delaware.
(d) On
the date of the Redemption (the “Redemption Date”), subject to the satisfaction or waiver (to the extent permitted
pursuant to Section 2.2 or Section 2.3), as applicable, of the conditions to the Redemption set forth in Section 2.2 and
Section 2.3, Liberty Media will consummate the Redemption.
(e) Liberty
Media will provide notice of the Effective Time and Redemption Date to the holders of Liberty SiriusXM Common Stock in accordance with
the requirements of Article IV, Section A.2(e)(i) and (iv) of the Liberty Charter.
(f) Liberty
Media will take all such action as may be necessary or appropriate under applicable state and foreign securities and “blue sky”
laws to permit the Redemption to be effected in compliance, in all material respects, with such laws.
(g) Promptly
following the Effective Time, Liberty Media will cause the Redemption Agent (i) to exchange the applicable series and number of
shares of Liberty SiriusXM Common Stock held in book-entry form as of the Effective Time for the applicable series and number of shares
of SplitCo Common Stock, and (ii) to mail to the holders of record of certificated shares of Liberty SiriusXM Common Stock as of
the Redemption Date a letter of transmittal with instructions for use in effecting the surrender of the redeemed shares of Liberty SiriusXM
Common Stock.
(h) Shares
of Liberty SiriusXM Common Stock that are redeemed in the Redemption for shares of SplitCo Common Stock will be deemed to have been transferred
as of the Effective Time; provided, that until the surrender of any certificate representing redeemed shares of Liberty SiriusXM
Common Stock for shares of SplitCo Common Stock, SplitCo may withhold and accumulate any dividends or distributions which become payable
with respect to such shares of SplitCo Common Stock pending the surrender of such certificate.
(i) Notwithstanding
anything to the contrary contained herein, holders of record of Liberty SiriusXM Common Stock shall not be entitled to receive a fraction
of a share of SplitCo Common Stock (each, a “Fractional Share”) pursuant to the Redemption. Liberty Media shall cause
the Redemption Agent to aggregate all Fractional Shares into whole shares and cause such whole shares to be sold at prevailing market
prices on behalf of those holders of record who would have otherwise been entitled to receive a Fractional Share, and each such holder
of record who would have otherwise been entitled to receive a Fractional Share shall be entitled to receive cash in lieu of such Fractional
Share in an amount equal to such holder’s pro rata share of the total cash proceeds (net of any fees to the Redemption Agent) from
such sales. The Redemption Agent will have sole discretion to determine when, how and through which broker-dealers such sales will be
made without any influence by SplitCo or Liberty Media. Following such sales, the applicable holders of record will receive a cash payment
in the form of a check or wire transfer in an amount equal to their pro rata share of the total net proceeds, less any applicable withholding
taxes. If such holders of record physically hold one or more stock certificates or hold stock through the Redemption Agent’s Direct
Registration System, the check for any cash that such holders of record may be entitled to receive instead of Fractional Shares will
be mailed to such holders separately. The parties acknowledge that the payment of cash in lieu of Fractional Shares does not represent
separately bargained-for consideration and merely represents a mechanical rounding off for purposes of avoiding the expense and inconvenience
that would otherwise be caused by the issuance of Fractional Shares.
(j) Liberty
Media and the Redemption Agent shall be entitled to deduct and withhold from the amounts payable to any Person pursuant to this Article II
such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Code, or under any provision
of state, local or foreign tax Law. To the extent that amounts are so deducted or withheld and paid over to the appropriate Governmental
Authority, such amounts shall be treated for the purposes of this Agreement as having been paid to the Person in respect of which such
deduction or withholding was made.
(k) So
as to maintain the relative proportionate interests of the holders of Liberty SiriusXM Common Stock and SiriusXM Common Stock in the
SplitCo Common Stock immediately following the Merger Effective Time (as defined in the Merger Agreement), the Exchange Ratio shall be
adjusted to reflect fully the appropriate effect of any stock split, split-up, reverse stock split, stock dividend (including any dividend
or distribution of securities convertible into, or exercisable or exchangeable for, Liberty SiriusXM Common Stock, SplitCo Common Stock
or SiriusXM Common Stock), reorganization, recapitalization, reclassification, combination or exchange of shares, or other similar change
with respect to Liberty SiriusXM Common Stock, SplitCo Common Stock or SiriusXM Common Stock having a record date occurring on or after
the date hereof and prior to the Merger Effective Time; provided, however, that the Restructuring and the Split-Off Transactions
shall not trigger the effects of this Section 2.1(k).
2.2 Liberty
Media Condition to the Contribution and Redemption. The obligation of Liberty Media to effect the Contribution and Redemption is
subject to the satisfaction of the following condition, which may not be waived: the conditions precedent set forth in Article VII
(other than Section 7.1(b) and Section 7.1(h)) of the Merger Agreement shall have been satisfied or, to the extent permitted
under the terms thereof, waived and the parties thereto shall have confirmed that the Merger Closing will occur subject only to the occurrence
of the Effective Time.
2.3 Mutual
Condition to the Contribution and Redemption. The obligations of the parties hereto to effect the Contribution and Redemption are
subject to the satisfaction or waiver of the following condition: no Restraints shall be in effect enjoining, restraining, preventing
or prohibiting consummation of the Contribution or Redemption.
2.4 Treatment
of Outstanding Equity Awards.
(a) Certain
current and former employees, non-employee directors and consultants of Liberty Media, the Qualifying Subsidiaries and their respective
Subsidiaries have been granted options, restricted stock units and restricted shares in respect of Liberty SiriusXM Common Stock pursuant
to various stock incentive plans of Liberty Media administered by the Liberty Board (collectively, “Awards”). Liberty
Media and SplitCo shall use commercially reasonable efforts to take all actions necessary or appropriate so that the Awards that are
outstanding immediately prior to the Effective Time are adjusted as set forth in this Section 2.4.
(b) Options.
Each option to purchase shares of Liberty SiriusXM Common Stock (a “Liberty SiriusXM option award”) that is outstanding
as of immediately prior to the Effective Time shall accelerate and become fully vested immediately prior to, and contingent upon the
occurrence of, the Effective Time. As of the Effective Time, as has been determined by the Liberty Board pursuant to its authority granted
under the applicable stock incentive plan of Liberty Media and without any further action on the part of the holder thereof, Liberty
Media or SplitCo, each Liberty SiriusXM option award (as accelerated in accordance with the previous sentence) shall cease to represent
an option award to purchase shares of Liberty SiriusXM Common Stock and will be converted into an option to purchase shares of SplitCo
Common Stock (a “SplitCo option award”), except that (1) the number of shares of SplitCo Common Stock subject
to such SplitCo option award shall be equal to the product of (x) the Exchange Ratio multiplied by (y) the number of shares
of Liberty SiriusXM Common Stock subject to the Liberty SiriusXM option award immediately prior to the Effective Time, rounded down to
the nearest whole share of SplitCo Common Stock, and (2) the per share exercise price of such SplitCo option award shall be equal
to the quotient of (x) the exercise price per share of the Liberty SiriusXM option award immediately prior to the Effective Time
divided by (y) the Exchange Ratio, with the result rounded up to the nearest whole cent. Except with respect to the vesting terms
thereof and as otherwise described herein, all other terms of the SplitCo option awards will, in all material respects, be the same as
those of the corresponding Liberty SiriusXM option awards; provided, however, that neither the Effective Time nor any other
transaction contemplated by this Agreement or the Merger Agreement shall be considered a termination of employment or service for any
employee, non-employee director or consultant of Liberty Media, any Qualifying Subsidiary or their respective Subsidiaries for purposes
of any SplitCo option award; provided, further, that the SplitCo option awards shall be subject to the terms of the SplitCo
Transitional Plan.
(c) Restricted
Stock Awards. Effective as of ten (10) Business Days prior to the Redemption Date (or such other date on or around that time
as may be determined by the Liberty Board (or authorized committee thereof)), each restricted stock award with respect to shares of Liberty
SiriusXM Common Stock granted under a stock incentive plan of Liberty Media (a “Liberty SiriusXM restricted stock award”)
that is outstanding as of such time, shall accelerate and become fully vested and all such shares of Liberty SiriusXM Common Stock underlying
such Liberty SiriusXM restricted stock awards, less applicable tax withholdings, that are outstanding as of the Effective Time shall
be treated as outstanding shares of Liberty SiriusXM Common Stock in the Redemption and be exchanged into shares of SplitCo Common Stock
in accordance with Section 2.1.
(d) Restricted
Stock Units. Effective as of ten (10) Business Days prior to the Redemption Date (or such other date on or around that time
as may be determined by the Liberty Board (or authorized committee thereof)), each restricted stock unit with respect to shares of Liberty
SiriusXM Common Stock (a “Liberty SiriusXM restricted stock unit award”) that is outstanding as of such time shall
accelerate and become fully vested (with applicable performance goals, if any, being deemed satisfied at 100% of target) and all such
shares of Liberty SiriusXM Common Stock issued in settlement of such Liberty SiriusXM restricted stock unit awards, less applicable tax
withholdings, that are outstanding as of the Effective Time shall be treated as outstanding shares of Liberty SiriusXM Common Stock in
the Redemption and be exchanged into shares of SplitCo Common Stock in accordance with Section 2.1.
(e) From
and after the Effective Time, the SplitCo option awards, regardless of by whom held, shall be settled by SplitCo pursuant to the terms
of the SplitCo Transitional Plan. The obligation to deliver shares of SplitCo Common Stock or cash payment upon the exercise of any SplitCo
option awards shall be the sole obligation of SplitCo, and Liberty Media shall have no Liability in respect thereof except as otherwise
specifically provided in the SplitCo Transitional Plan.
(f) It
is intended that the SplitCo Transitional Plan be considered, as to any SplitCo option award that is issued as part of the adjustment
provisions of this Section 2.4, to be a successor plan to the stock incentive plan of Liberty Media pursuant to which the corresponding
Liberty SiriusXM option award was issued, and SplitCo shall be deemed to have assumed the obligations under the applicable stock incentive
plans of Liberty Media to make the adjustments to the SplitCo option award set forth in this Section 2.4.
(g) SplitCo
agrees that, from and after the Effective Time, it shall use its reasonable efforts to cause to be effective under the Securities Act,
on a continuous basis, a registration statement on Form S-8 (or any successor) with respect to shares of SplitCo Common Stock issuable
upon exercise of SplitCo option awards to which the issuance upon exercise thereof is eligible for registration on Form S-8 (or
any successor).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Parties. Each party hereto represents and warrants to the other as follows:
(a) Organization
and Qualification. Such party is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction
of incorporation, has all requisite corporate power and authority to own, use, lease or operate its properties and assets, and to conduct
the business heretofore conducted by it, and is duly qualified to do business and is in good standing in each jurisdiction in which the
properties owned, used, leased or operated by it or the nature of the business conducted by it requires such qualification, except in
such jurisdictions where the failure to be so qualified and in good standing would not have a material adverse effect on its business,
financial condition or results of operations or its ability to perform its obligations under this Agreement.
(b) Authorization
and Validity of Agreement. Subject to the repayment or arrangement for repayment in full of the principal, interest and other obligations
under the Margin Loan Agreement, such party has all requisite power and authority to execute, deliver and, subject, in the case of Liberty
Media and SplitCo, to the receipt of the Liberty Stockholder Approval (as defined in the Merger Agreement), perform its obligations under
this Agreement, the agreements and instruments to which it is to be a party required to effect the Restructuring (the “Restructuring
Agreements”) and the Tax Sharing Agreement. The execution, delivery and performance by such party of this Agreement, the Restructuring
Agreements and the Tax Sharing Agreement and the consummation by it of the transactions contemplated hereby and thereby have been duly
and validly authorized by the board of directors (or a duly authorized committee thereof) of such party and, subject to the receipt of
the Liberty Stockholder Approval, no other corporate action on its part is necessary to authorize the execution and delivery by such
party of this Agreement, the Restructuring Agreements and the Tax Sharing Agreement, the performance by it of its obligations hereunder
and thereunder and the consummation by it of the transactions contemplated hereby and thereby. This Agreement has been, and each of the
Restructuring Agreements and the Tax Sharing Agreement, when executed and delivered, will be, duly executed and delivered by such party
and each is, or will be, a valid and binding obligation of such party, enforceable in accordance with its terms.
3.2 No
Conflict with Instruments. Subject to execution of the Marginco Operating Amendment (as defined in the Merger Agreement) and the
repayment or arrangement for repayment in full of the principal, interest and other obligations under the Margin Loan Agreement, the
execution, delivery and performance by such party of this Agreement, the Restructuring Agreements and the Tax Sharing Agreement, and
the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with or result in a breach or violation
of any of the terms or provisions of, constitute a default under, or result in the creation of any lien, charge or encumbrance upon any
of its assets pursuant to the terms of, the charter or bylaws (or similar formation or governance instruments) of such party, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it or any of its assets are
bound, or any law, rule, regulation or Order of any court or Governmental Authority having jurisdiction over it or its properties.
3.3 No
Other Reliance. In determining to enter into this Agreement, the Restructuring Agreements, the Merger Agreement and the Tax Sharing
Agreement, and to consummate the transactions contemplated hereby and thereby, such party has not relied on any representation, warranty,
promise or agreement other than those expressly contained herein or therein, and no other representation, warranty, promise or agreement
has been made or will be implied.
ARTICLE IV
COVENANTS
4.1 Cross-Indemnities.
(a) SplitCo
hereby covenants and agrees, on the terms and subject to the limitations set forth in this Article IV, from and after the Closing,
to indemnify and hold harmless the Liberty Entities and their respective current and former directors, officers and employees, and each
of the heirs, executors, trustees, administrators, successors and assigns of any of the foregoing (collectively, the “Liberty
Indemnified Parties”), from and against any Losses paid, incurred, suffered or sustained by the Liberty Indemnified Parties
(in their capacities as such) to the extent arising out of or resulting from or in connection with any of the following:
(i) the
conduct of the SplitCo Businesses (whether before, on or after the Closing);
(ii) the
SplitCo Assets;
(iii) the
SplitCo Liabilities (whether incurred before, on or after the Closing), including the Specified Litigation Matter; or
(iv) any
breach of, or failure to perform or comply with, any covenant, undertaking or obligation of SplitCo or any of its Subsidiaries under
this Agreement or any Restructuring Agreement to the extent such breach or failure occurs after the Closing.
(b) Liberty
Media hereby covenants and agrees, on the terms and subject to the limitations set forth in this Article IV, from and after the
Closing, to indemnify and hold harmless SplitCo, its Subsidiaries and their respective current and former directors, officers and employees,
and each of the heirs, executors, trustees, administrators, successors and assigns of any of the foregoing (collectively, the “SplitCo
Indemnified Parties”) from and against any Losses paid, incurred, suffered or sustained by the SplitCo Indemnified Parties
(in their capacities as such) to the extent arising out of or resulting from or in connection with any of the following:
(i) the
conduct of the Liberty Retained Businesses (whether before, on or after the Closing);
(ii) the
Liberty Retained Assets;
(iii) the
Liberty Retained Liabilities (whether incurred before, on or after the Closing); or
(iv) any
breach of, or failure to perform or comply with, any covenant, undertaking or obligation of Liberty Media or any of its Subsidiaries
(other than the SplitCo Entities) under this Agreement or any Restructuring Agreement.
(c) The
indemnification provisions set forth in Sections 4.1(a) and (b) shall not apply to: (i) any Losses incurred by any SplitCo
Entity pursuant to any contractual obligation (other than this Agreement or the Restructuring Agreements) existing on or after the Closing
Date (as defined below) between (x) Liberty Media or any of its Subsidiaries or Affiliates, on the one hand, and (y) SplitCo
or any of its Subsidiaries or Affiliates, on the other hand; (ii) any Losses incurred by any Liberty Entity pursuant to any contractual
obligation (other than this Agreement or the Restructuring Agreements) existing on or after the Closing Date between (x) Liberty
Media or any of its Subsidiaries or Affiliates, on the one hand, and (y) SplitCo or any of its Subsidiaries or Affiliates, on the
other hand; and (iii) any Losses that are, or are attributable to, any Taxes (other than any Taxes that represent Losses arising
from any non-Tax claim). For the avoidance of doubt, any arrangement, instrument, contract or other agreement between Liberty Media or
any of its Subsidiaries or Affiliates, on the one hand, and SplitCo, SiriusXM or any of their respective Subsidiaries or Affiliates,
on the other hand (other than this Agreement or the Restructuring Agreements) shall be governed by the terms and conditions of such arrangement,
instrument, contract or other agreement and the limitations set forth in the immediately preceding sentence shall not affect the rights
and obligations of each party thereto, including any indemnification rights or obligations provided therein.
(d) (i) In
connection with any indemnification provided for in this Section 4.1, the party seeking indemnification (the “Indemnitee”)
will give the party from which indemnification is sought (the “Indemnitor”) prompt notice whenever it comes to the
attention of the Indemnitee that the Indemnitee has suffered or incurred, or may suffer or incur, any Losses for which it is entitled
to indemnification under this Section 4.1, and, if and when known, the facts constituting the basis for such claim and the projected
amount of such Losses (which shall not be conclusive as to the amount of such Losses), in each case in reasonable detail. Without limiting
the generality of the foregoing, in the case of any Action commenced by a third party for which indemnification is being sought (a “Third-Party
Claim”), such notice will be given no later than ten (10) Business Days following receipt by the Indemnitee of written
notice of such Third-Party Claim. Failure by any Indemnitee to so notify the Indemnitor will not affect the rights of such Indemnitee
hereunder except to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnitor
with respect to such Third-Party Claim. The Indemnitee will deliver to the Indemnitor as promptly as practicable, and in any event within
five (5) Business Days after Indemnitee’s receipt, copies of all notices, court papers and other documents received by the
Indemnitee relating to any Third-Party Claim.
(ii) Subject
to Section 6.11 of the Merger Agreement, after receipt of a notice pursuant to Section 4.1(d)(i) with respect to any Third-Party
Claim, the Indemnitor will be entitled, if it so elects within thirty (30) days of receipt of such notice (or such lesser period as may
be required by court proceedings in the event of a litigated matter), to take control of the defense and investigation with respect to
such Third-Party Claim and to employ and engage attorneys reasonably satisfactory to the Indemnitee to handle and defend such claim,
at the Indemnitor’s cost, risk and expense, upon written notice to the Indemnitee of such election, which notice acknowledges the
Indemnitor’s obligation to provide indemnification under this Agreement with respect to any Losses arising out of or relating to
such Third-Party Claim. The Indemnitor will not settle any Third-Party Claim that is the subject of indemnification without the written
consent of the Indemnitee, which consent will not be unreasonably withheld, conditioned or delayed; provided, however, that, after
reasonable notice, the Indemnitor may settle a claim without the Indemnitee’s consent if (A) such settlement makes no admission
or acknowledgment of Liability or culpability with respect to each Indemnitee, (B) such settlement includes a complete release of
each Indemnitee, (C) such settlement does not impose or seek any relief against any Indemnitee other than the payment of money damages
to be borne solely and entirely by the Indemnitor and (D) the Indemnitor pays all Losses relating to such settlement. The Indemnitee
will cooperate in all reasonable respects with the Indemnitor and its attorneys in the investigation, trial and defense of any lawsuit
or action with respect to such claim and any appeal arising therefrom (including the filing in the Indemnitee’s name of appropriate
cross-claims and counterclaims). The Indemnitee may, at its own cost, participate in any investigation, trial and defense of any Third-Party
Claim controlled by the Indemnitor and any appeal arising therefrom, including participating in the process with respect to the potential
settlement or compromise thereof. If the Indemnitee has been advised by its counsel that there may be one or more legal defenses available
to the Indemnitee that conflict with those available to, or that are not available to, the Indemnitor (“Separate Legal Defenses”),
or that there may be actual or potential differing or conflicting interests between the Indemnitor and the Indemnitee in the conduct
of the defense of such Third-Party Claim, the Indemnitee will have the right, at the expense of the Indemnitor, to engage separate counsel
reasonably acceptable to the Indemnitor to handle and defend such Third-Party Claim, provided, that, if such Third-Party Claim
can be reasonably separated between those portion(s) for which Separate Legal Defenses are available (“Separable Claims”)
and those for which no Separate Legal Defenses are available, the Indemnitee will instead have the right, at the expense of the Indemnitor,
to engage separate counsel reasonably acceptable to the Indemnitor to handle and defend the Separable Claims, and the Indemnitor will
not have the right to control the defense or investigation of such Separable Claims (and, in which case, the Indemnitor will have the
right to control the defense or investigation of the remaining portion(s) of such Third-Party Claim).
(iii) If,
after receipt of a notice pursuant to Section 4.1(d)(i) with respect to any Third-Party Claim as to which indemnification is
available hereunder, the Indemnitor does not undertake to defend the Indemnitee against such Third-Party Claim, whether by not giving
the Indemnitee timely notice of its election to so defend or otherwise, the Indemnitee may, but will have no obligation to, assume its
own defense, at the expense of the Indemnitor (including attorneys’ fees and costs), it being understood that the Indemnitee’s
right to indemnification for such Third-Party Claim shall not be adversely affected by its assuming the defense of such Third-Party Claim.
The Indemnitor will be bound by the result obtained with respect thereto by the Indemnitee; provided, that the Indemnitee may
not settle any lawsuit or action with respect to which the Indemnitee is entitled to indemnification hereunder without the consent of
the Indemnitor, which consent will not be unreasonably withheld, conditioned or delayed; provided further, that such consent shall
not be required if (A) the Indemnitor had the right under this Section 4.1 to undertake control of the defense of such Third-Party
Claim and, after notice, failed to do so within the period set forth in Section 4.1(d)(ii), or (B) (x) the Indemnitor
does not have the right to control the defense of the entirety of such Third-Party Claim pursuant to Section 4.1(d)(ii) or
(y) the Indemnitor does not have the right to control the defense of any Separable Claim pursuant to Section 4.1(d)(ii) (in
which case such settlement may only apply to such Separable Claims), the Indemnitee provides reasonable notice to Indemnitor of the settlement,
and such settlement (1) makes no admission or acknowledgment of Liability or culpability with respect to the Indemnitor, (2) does
not seek any relief against the Indemnitor and (3) does not seek any relief against the Indemnitee for which the Indemnitor is responsible
other than the payment of money damages.
(iv) Notwithstanding
anything to the contrary, the provisions of this Section 4.1(d) shall not apply to the Specified Litigation Matter (with respect
to which the provisions of Section 4.1(e) and Section 4.1(n) shall control) or any Transaction Litigation (as defined
in the Merger Agreement) (with respect to which the provisions of Section 6.11 of the Merger Agreement and Section 4.1(n) shall
control).
(e) Notwithstanding
anything to the contrary contained in this Agreement, with respect to the Specified Litigation Matter, prior to the Closing, if the Agreed
Settlement has been terminated, (1) Liberty Media shall (i) control the defense of and investigation with respect to the Specified
Litigation Matter and the right to settle or compromise the Specified Litigation Matter and (ii) employ and engage attorneys reasonably
satisfactory to Liberty Media to handle and defend such claim, in each case at Liberty Media’s sole cost, risk and expense (which
shall not include the cost, risk or expense of any attorneys employed or engaged by SiriusXM or any of its Subsidiaries); provided,
that Liberty Media shall keep, prior to the Closing, SiriusXM reasonably informed regarding the status of any such defense, investigation
and settlement or compromise and consider in good faith any input from, prior to the Closing, SiriusXM with respect thereto; provided,
further, that Liberty Media shall not settle or compromise the Specified Litigation Matter in a manner adverse to SiriusXM or
its stockholders (other than Liberty Media, SplitCo or any of their respective Subsidiaries) relative to the Agreed Settlement without
the prior written consent of SiriusXM (such consent not to be unreasonably delayed, withheld or conditioned); (2) SplitCo shall
cooperate with the conduct of such defense (including the making of any related claims, counterclaim or cross-complaint against any Person
in connection with the Specified Litigation Matter) and the settlement or compromise of the Specified Litigation Matter, in each case
at Liberty Media’s sole cost and expense (which shall not include the cost, risk or expense of any attorneys employed or engaged
by SiriusXM or any of its Subsidiaries); and (3) SplitCo shall use commercially reasonable efforts to make available to Liberty
Media all books, records and other documents and materials that are under the control of SplitCo or any of SplitCo’s agents and
representatives and that Liberty Media reasonably considers necessary or desirable for the defense of or investigation with respect to
the Specified Litigation Matter, and use commercially reasonable efforts to make the employees and advisors of SplitCo available or otherwise
render reasonable assistance to, Liberty Media and its agents and representatives, in each case at Liberty Media’s sole cost and
expense (which shall not include the cost, risk or expense of any attorneys employed or engaged by SiriusXM or any of its Subsidiaries).
Notwithstanding anything to the contrary in this Section 4.1(e), nothing contained in this Section 4.1(e) shall (i) limit
the Liberty Indemnified Parties’ right to indemnification pursuant to Section 4.1(a) for any Losses arising out of or
resulting from or in connection with the Specified Litigation Matter, or (ii) cause any Liabilities described as at Liberty Media’s
sole cost and expense to constitute Liberty Retained Liabilities. After the Closing, other than in connection with the Agreed Settlement,
if the Specified Litigation Matter has not finally been resolved prior to or as of the Merger Effective Time, SplitCo shall (i) control
the defense of and investigation with respect to the Specified Litigation Matter and the right to settle or compromise the Specified
Litigation Matter and (ii) employ and engage attorneys reasonably satisfactory to SplitCo to handle and defend such claim, in each
case (and subject to Section 4.1(n)) at SplitCo’s sole cost, risk and expense; provided, that (A) SplitCo shall
keep Liberty Media reasonably informed regarding the status of any such defense, investigation and settlement or compromise and consider
in good faith any input from Liberty Media with respect thereto and (B) none of SplitCo nor the Surviving Corporation (as defined
in the Merger Agreement) shall settle the Specified Litigation Matter or fail to perfect on a timely basis any right to appeal any judgment
rendered or order entered against such party therein without having the prior written consent of Liberty Media (such consent not to be
unreasonably delayed, withheld or conditioned).
(f) In
no event will the Indemnitor be liable to any Indemnitee for any special or punitive damages, however caused and on any theory of liability
arising in any way out of this Agreement, whether or not such Indemnitor was advised of the possibility of any such damages; provided,
that the foregoing limitations shall not limit a party’s indemnification obligations for any Losses incurred by an Indemnitee as
a result of the assertion of a Third-Party Claim or any Losses incurred by any Liberty Indemnified Party arising out of or resulting
from the Specified Litigation Matter.
(g) The
Indemnitor and the Indemnitee shall use commercially reasonable efforts to avoid production of confidential information, and to cause
all communications among employees, counsel and others representing any party with respect to a Third-Party Claim or the Specified Litigation
Matter to be made so as to preserve any applicable attorney-client or work-product privilege.
(h) The
Indemnitor shall pay all amounts payable pursuant to this Section 4.1 by wire transfer of immediately available funds, promptly
following receipt from an Indemnitee of a bill, together with all accompanying reasonably detailed backup documentation, for any Losses
that are the subject of indemnification hereunder, unless the Indemnitor in good faith disputes the amount of such Losses or whether
such Losses are covered by the Indemnitor’s indemnification obligation in which event the Indemnitor shall promptly so notify the
Indemnitee. In any event, the Indemnitor shall pay to the Indemnitee, by wire transfer of immediately available funds, the amount of
any Losses for which it is liable hereunder no later than three (3) days following any final determination of the amount of such
Losses and the Indemnitor’s liability therefor. A “final determination” shall exist when (i) the parties to the
dispute have reached an agreement in writing or (ii) a court of competent jurisdiction shall have entered a final and non-appealable
order or judgment.
(i) If
the indemnification provided for in this Section 4.1 shall, for any reason, be unavailable or insufficient to hold harmless an Indemnitee
in respect of any Losses for which it is entitled to indemnification hereunder, then the Indemnitor shall contribute to the amount paid
or payable by such Indemnitee as a result of such Losses, in such proportion as shall be appropriate to reflect the relative benefits
received by and the relative fault of the Indemnitor on the one hand and the Indemnitee on the other hand with respect to the matter
giving rise to such Losses.
(j) The
remedies provided in this Section 4.1 shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights
or the seeking of any and all other remedies against an Indemnitor, subject to Section 4.1(f).
(k) The
rights and obligations of the Liberty Indemnified Parties and the SplitCo Indemnified Parties under this Section 4.1 shall survive
the Redemption and the Merger.
(l) For
the avoidance of doubt, the provisions of this Section 4.1 are not intended to, and shall not, apply to any Loss, claim or Liability
or other matters governed by the Tax Sharing Agreement, which shall be subject to the provisions thereof in lieu of this Section 4.1.
(m) The
Indemnitor will indemnify the Indemnitee against any and all reasonable fees, costs and expenses (including attorneys’ fees), incurred
in connection with the enforcement of their or its rights under this Section 4.1.
(n) In
the event that any holder of SiriusXM Common Stock (other than Liberty Media and its Subsidiaries) brings any Transaction Litigation
relating to Liberty Media (or any of its Subsidiaries) in Liberty Media’s (or such Subsidiary’s) capacity as a stockholder
of SiriusXM or Liberty Media’s conduct in connection with the Transactions (the “Specified Transaction Litigation”)
or in the event that the Specified Litigation Matter remains outstanding following the Closing and, in any such case, SplitCo or any
of its Subsidiaries, including the Surviving Corporation, is required to make a payment (1) as a result of (i) a final non-appealable
judgment of a court of competent jurisdiction, (ii) a settlement approved in accordance with Section 6.11(a) of the Merger
Agreement, in the case of Transaction Litigation, or in accordance with Section 4.1(e), in the case of the Specified Litigation
Matter, or (iii) other court-approved non-appealable recovery, in any such case, arising from Liberty Media’s liability (as
assumed and/or indemnified by SplitCo pursuant hereto) for (A) the Specified Litigation Matter (other than any such payment made
as a result of the Agreed Settlement) or (B) any Specified Transaction Litigation or (2) for attorneys’ fees, expert
costs and/or other defense costs of Liberty Media or its Affiliates or advisors and the JPM Indemnification Obligations (in the case
of each of clauses (1) and (2), as assumed and/or indemnified by SplitCo pursuant hereto) (any such payment pursuant to such clause
(1) or clause (2), a “Specified Payment”), then each of Liberty Media, SplitCo and SiriusXM agrees that SplitCo
shall make, or cause to be made, a compensatory payment to the holders of record of SiriusXM Common Stock (other than Liberty Media,
SplitCo or any of their respective Subsidiaries) as of immediately prior to the Merger Effective Time in an aggregate amount equal to
(1) the quotient of (x) the amount of any such Specified Payment divided by (y) the Liberty Ownership Percentage
as of immediately prior to the Merger Effective Time, less (2) the amount of such Specified Payment; provided, further,
that any amount of the Specified Litigation Matter Amount included in the final and binding calculation of the LSXM Net Liabilities Share
Adjustment pursuant to Section 4.2 shall, without duplication, reduce the amount of the Specified Payment to the extent any amount
is subsequently paid by Liberty Media (including by release from escrow of amounts previously deposited by Liberty Media) in respect
of the Specified Litigation Matter.
4.2 Liberty
Media Officer’s Certificate.
(a) Not
later than the Certificate Date, Liberty Media will deliver to SiriusXM a certificate signed by a duly authorized officer of Liberty
Media, setting forth (i) Liberty Media’s good faith calculation, together with reasonably detailed supporting documentation,
of the LSXM Net Liabilities Share Adjustment and (ii) Liberty Media’s good faith calculation of the Exchange Ratio (the “Officer’s
Certificate”). Liberty Media will use its reasonable best efforts to cause its Representatives to provide the LSXM Transaction
Expenses on or prior to the Measurement Date.
(b) In
the event that, within four (4) Business Days following receipt by SiriusXM of the Officer’s Certificate, SiriusXM provides
Liberty Media with written notice of any good faith objections to the calculations set forth in the Officer’s Certificate, together
with reasonably detailed supporting documentation of such objections, SiriusXM and Liberty Media shall promptly negotiate in good faith,
with each party acting reasonably, to resolve any such objections prior to the Closing Date, and the final and binding calculation of
the LSXM Net Liabilities Share Adjustment and the Exchange Ratio shall be as so mutually resolved by SiriusXM and Liberty Media. Notwithstanding
the foregoing, in the event that SiriusXM does not provide its written notice of objections to the calculations set forth in the Officer’s
Certificate within four (4) Business Days following delivery to SiriusXM of the Officer’s Certificate, the Officer’s
Certificate delivered by Liberty Media, and the calculations of the LSXM Net Liabilities Share Adjustment and the Exchange Ratio, shall
be final and binding on the parties.
4.3 Further
Assurances. At any time before or after the Closing, each party hereto covenants and agrees to make, execute, acknowledge and deliver,
and to cause its Subsidiaries to make, execute, acknowledge and deliver, such instruments, agreements, consents, assurances and other
documents, and to take all such other commercially reasonable actions, as any other party may reasonably request and as may reasonably
be required in order to accomplish the Restructuring and the Redemption and to give effect to the transactions provided for in this Agreement,
including each step in the Restructuring Plan, and to otherwise carry out the purposes and intent of this Agreement.
4.4 Specific
Performance. Each party hereby acknowledges that the benefits to the other party of the performance by such party of its obligations
under this Agreement are unique and that the other party is willing to enter into this Agreement only in reliance that such party will
perform such obligations, and agrees that monetary damages may not afford an adequate remedy for any failure by such party to perform
any of such obligations. Accordingly, each party hereby agrees that the other parties will have the right to enforce the specific performance
of such party’s obligations hereunder and irrevocably waives any requirement for the securing or posting of any bond or other undertaking
in connection with the obtaining by the other party of any injunctive or other equitable relief to enforce their rights hereunder.
4.5 Access
to Information.
(a) Each
party will provide to the other party, at any time before, on or after the Redemption Date, upon written request and promptly after the
request therefor (subject in all cases, to any bona fide concerns of attorney-client or work-product privilege that any party may reasonably
have and any restrictions contained in any agreements or contracts to which any party or its Subsidiaries is a party (it being understood
that each of Liberty Media, SplitCo and SiriusXM will use its reasonable best efforts to provide any such information in a manner that
does not result in a violation of a privilege)), any information in its possession or under its control that the requesting party reasonably
needs (i) to comply with reporting, filing or other requirements imposed on the requesting party by a foreign or U.S. federal, state
or local judicial, regulatory or administrative authority having jurisdiction over the requesting party or its Subsidiaries, (ii) to
enable the requesting party to institute or defend against any action, suit or proceeding in any foreign or U.S. federal, state or local
court or (iii) to enable the requesting party to implement the transactions contemplated hereby, including but not limited to performing
its obligations under this Agreement and the Restructuring Agreements.
(b) Any
information belonging to a party that is provided to another party pursuant to Section 4.5(a) will remain the property of the
providing party. The parties agree to cooperate in good faith to take all reasonable efforts to maintain any legal privilege that may
attach to any information delivered pursuant to this Section 4.5 or which otherwise comes into the receiving party’s possession
and control pursuant to this Agreement. Nothing contained in this Agreement will be construed as granting or conferring license or other
rights in any such information.
(c) The
party requesting any information under this Section 4.5 will reimburse the providing party for the reasonable out-of-pocket costs,
if any, of creating, gathering and copying such information, to the extent that such costs are incurred for the benefit of the requesting
party. No party will have any Liability to any other party if any information exchanged or provided pursuant to this Agreement that is
an estimate or forecast, or is based on an estimate or forecast, is found to be inaccurate, absent willful misconduct or fraud by the
party providing such information.
(d) Each
of Liberty Media, SplitCo and SiriusXM shall reasonably cooperate with each other and with each other’s agents, including accounting
firms and legal counsel (subject in all cases, to any bona fide concerns of attorney-client or work-product privilege that any party
may reasonably have and any restrictions contained in any agreements or contracts to which any party or its Subsidiaries is a party (it
being understood that each of Liberty Media, SplitCo and SiriusXM will use its reasonable best efforts to provide any such information
in a manner that does not result in a violation of a privilege)), in connection with the preparation, review and determination of the
Net Tax Amount, including by providing, as promptly as practicable after the request therefor, such information (including information
and projections related to Taxes and reasonable estimates thereof based on the best then-available information) as may be reasonably
requested by another party for such purpose.
(e) For
the avoidance of doubt, the provisions of this Section 4.5 (except for Section 4.5(d)) are not intended to, and shall not,
apply to any information relating to matters governed by the Tax Sharing Agreement, which shall be subject to the provisions thereof
in lieu of this Section 4.5 (except for Section 4.5(d)).
4.6 Confidentiality.
Each party will keep confidential for five (5) years following the Closing Date (or for three (3) years following disclosure
to such party, whichever is longer), and will use reasonable efforts to cause its officers, directors, members, employees, Affiliates
and agents to keep confidential during such period, all Proprietary Information (as defined below) of the other party, in each case to
the extent permitted by applicable law.
(a) “Proprietary
Information” means any proprietary ideas, plans and information, including information of a technological or business nature,
of a party (in this context, the “Disclosing Party”) (including all trade secrets, intellectual property, data, summaries,
reports or mailing lists, in whatever form or medium whatsoever, including oral communications, and however produced or reproduced),
that is marked proprietary or confidential, or that bears a marking of like import, or that the Disclosing Party states is to be considered
proprietary or confidential, or that a reasonable and prudent person would consider proprietary or confidential under the circumstances
of its disclosure. Without limiting the foregoing, all information of the types referred to in the immediately preceding sentence to
the extent used by SplitCo or the SplitCo Businesses or which constitute SplitCo Assets on or prior to the Closing Date will constitute
Proprietary Information of SplitCo for purposes of this Section 4.6.
(b) Anything
contained herein to the contrary notwithstanding, information of a Disclosing Party will not constitute Proprietary Information (and
the other party (in this context, the “Receiving Party”) will have no obligation of confidentiality with respect thereto),
to the extent such information: (i) is in the public domain other than as a result of disclosure made in breach of this Agreement
or breach of any other agreement relating to confidentiality between the Disclosing Party and the Receiving Party; (ii) was lawfully
acquired by the Disclosing Party from a third party not bound by a confidentiality obligation; (iii) is approved for release by
prior written authorization of the Disclosing Party; or (iv) is disclosed in order to comply with a judicial order issued by a court
of competent jurisdiction, or to comply with the laws or regulations of any Governmental Authority having jurisdiction over the Receiving
Party, in which event the Receiving Party will give prior written notice to the Disclosing Party of such disclosure as soon as or to
the extent practicable and will cooperate with the Disclosing Party in using reasonable efforts to disclose the least amount of such
information required and to obtain an appropriate protective order or equivalent, and provided that the information will continue
to be Proprietary Information to the extent it is covered by a protective order or equivalent or is not so disclosed.
4.7 Notices
Regarding Transferred Assets. Any transferor of an Asset or Liability in the Restructuring that receives a notice or other communication
from any third party, or that otherwise becomes aware of any fact or circumstance, after the Restructuring, relating to such Asset or
Liability, will use commercially reasonable efforts to promptly forward the notice or other communication to the transferee thereof or
give notice to such transferee of such fact or circumstance of which it has become aware. The parties will cause their respective Subsidiaries
to comply with this Section 4.7.
4.8 Tax
Treatment of Payments. The parties agree to treat, for U.S. federal income tax and other applicable tax purposes, all payments made
pursuant to this Agreement (other than payments pursuant to Article II of this Agreement) in accordance with Section 4.7 of
the Tax Sharing Agreement and to increase or reduce any amount paid hereunder to the same extent that such payment would have been required
to be increased or reduced under such section if it were a payment made pursuant to the Tax Sharing Agreement.
4.9 Allocated
Executive Payments. The amount of cash transferred by Liberty Media to SplitCo in connection with the Contribution shall be reduced
by the Allocated Executive Expenses and other payments made or contemplated under Section 6.2(b) of the Merger Agreement.
4.10 Director
and Officer Indemnification. Prior to the Closing, SplitCo shall enter into an indemnification agreement with each initial director
or officer of the Surviving Corporation (as defined in the Merger Agreement) in a form to be agreed between the parties to be effective
on and contingent upon the occurrence of the Merger Effective Time.
4.11 Final
Invoices. No later than at least one (1) Business Day prior to the Measurement Date, Liberty Media and SplitCo will deliver
to SiriusXM redacted (except as to the final aggregate amounts of any fees, costs and expenses) copies of final invoices for all unpaid
fees, costs and other expenses of any investment bankers, financial advisors (including the brokers referred to in Section 3.6 of
the Merger Agreement), attorneys, accountants and other consultants, advisors or other Representatives incurred by or on behalf of, or
payable by, Liberty Media, SplitCo or their respective Subsidiaries arising from or in connection with the Transactions.
ARTICLE V
CLOSING
5.1 Closing.
Unless this Agreement is terminated and the transactions contemplated by this Agreement are abandoned pursuant to the provisions of Article VI,
the closing of the Redemption (the “Closing”) will take place at the offices of O’Melveny & Myers LLP,
Two Embarcadero Center, San Francisco, CA 94111, at a mutually acceptable time and date (the “Closing Date”), which
date shall be no later than the tenth (10th) Business Day after the satisfaction or, if applicable, waiver of all conditions set forth
in each of Section 2.2 and Section 2.3 (other than those conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or, if applicable, waiver of those conditions at such time); provided, that the Closing shall
occur substantially concurrently with (but prior to) the Merger Effective Time.
5.2 Deliveries
at Closing.
(a) Liberty
Media. At or prior to the Closing, Liberty Media will deliver or cause to be delivered to SplitCo:
(i) the
Tax Sharing Agreement duly executed by an authorized officer of Liberty Media;
(ii) the
Restructuring Agreements duly executed by an authorized officer of Liberty Media or other applicable Liberty Entity;
(iii) a
secretary’s certificate certifying that the Liberty Board has authorized the execution, delivery and performance by Liberty Media
of this Agreement, the Restructuring Agreements and the Tax Sharing Agreement, which authorization will be in full force and effect at
and as of the Closing; and
(iv) such
other documents and instruments as SplitCo may reasonably request.
(b) SplitCo.
At or prior to the Closing, SplitCo will deliver or cause to be delivered to Liberty Media:
(i) the
Tax Sharing Agreement duly executed by an authorized officer of SplitCo;
(ii) the
Restructuring Agreements duly executed by an authorized officer of SplitCo or other applicable SplitCo Entity;
(iii) the
SplitCo Charter, duly executed by an authorized officer of SplitCo and filed with the Secretary of State of the State of Delaware;
(iv) a
secretary’s certificate certifying that the SplitCo Board has authorized the execution, delivery and performance by SplitCo of
this Agreement, the Restructuring Agreements and the Tax Sharing Agreement, which authorizations will be in full force and effect at
and as of the Closing; and
(v) such
other documents and instruments as Liberty Media may reasonably request.
ARTICLE VI
TERMINATION
6.1 Termination.
This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Effective Time (i) by
Liberty Media for any reason if the Merger Agreement has been terminated in accordance with its terms or (ii) by written agreement
of Liberty Media, SplitCo and SiriusXM (through the Special Committee) if the Merger Agreement has not been terminated in accordance
with its terms.
6.2 Effect
of Termination. In the event of any termination of this Agreement in accordance with Section 6.1, this Agreement will immediately
become void and the parties will have no Liability whatsoever to each other with respect to the transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
7.1 Definitions.
(a) For
purposes of this Agreement, the following terms have the corresponding meanings:
“2.75%
Exchangeable Senior Debentures” means the 2.75% Exchangeable Senior Debentures due 2049 issued under the 2.75% Exchangeable
Senior Debentures Indenture.
“2.75%
Exchangeable Senior Debentures Indenture” means the Indenture, dated as of November 26, 2019, by and among Liberty Media,
as issuer, and U.S. Bank National Association, as trustee (as amended or supplemented from time to time as expressly permitted by the
Merger Agreement) relating to the 2.75% Exchangeable Senior Debentures.
“3.75%
Convertible Senior Notes” means the 3.75% Convertible Senior Notes due 2028 issued under the 3.75% Convertible Senior Notes
Indenture.
“3.75%
Convertible Senior Notes Indenture” means the Indenture, dated as of March 10, 2023, by and among Liberty Media, as issuer,
and U.S. Bank Trust Company, National Association, as trustee (as amended or supplemented from time to time as expressly permitted by
the Merger Agreement) relating to the 3.75% Convertible Senior Notes.
“Action”
means any demand, action, claim, suit, countersuit, litigation, arbitration, prosecution, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation whether or not commenced,
brought, conducted or heard by or before, or otherwise involving, any court, grand jury or other Governmental Authority or any arbitrator
or arbitration panel.
“Affiliates”
means with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, such first Person; provided, that, for any purpose hereunder, in each case both before and
after the Effective Time, none of the Persons listed in clauses (i)–(viii) shall be deemed to be Affiliates of any Person
listed in any other such clause: (i) Liberty Media taken together with its Subsidiaries and any of their respective Investees, (ii) SplitCo
taken together with its Subsidiaries and any of their respective Investees, (iii) Liberty TripAdvisor Holdings, Inc. taken
together with its Subsidiaries and any of their respective Investees, (iv) Liberty Broadband Corporation taken together with its
Subsidiaries and any of their respective Investees, (v) Qurate Retail, Inc. taken together with its Subsidiaries and any of
their respective Investees, (vi) Liberty Global plc taken together with its Subsidiaries and any of their respective Investees,
(vii) Liberty Latin America Ltd. taken together with its Subsidiaries and any of their respective Investees, and (viii) Atlanta
Braves Holdings, Inc. taken together with its Subsidiaries and any of their respective Investees. For purposes of this Agreement,
both prior to and after the Effective Time, none of SplitCo, SiriusXM and their respective Subsidiaries shall be deemed to be Affiliates
of Liberty Media or any of its Subsidiaries or Affiliates.
“Agreed
Debt Fees” means a good faith estimate (as documented by a certificate signed by a duly authorized officer of SiriusXM that
is delivered to Liberty Media not later than the Measurement Date) of the aggregate amount of (i) if the Security Amendment (as
defined in the Debt Commitment Letter) is executed prior to the date that is sixty (60) days after the date hereof, any consent fees
paid in connection with obtaining the Security Amendment in an amount not to exceed any amount required under Section 1(A)(ii) of
the Debt Fee Letter (without duplication of any amount required under Section 1(A)(ii) of the Debt Fee Letter) plus (ii) any
commitment fees, structuring fees, arrangement fees, ticking fees, underwriting fees or discounts, funding fees and/or upfront fees set
forth in the Debt Commitment Letter, the Debt Fee Letter and/or the Engagement Letters, as applicable, with respect to the Agreed Financing
Amount that will be, and/or has been, paid by SiriusXM and its Subsidiaries to the lenders and/or arrangers of such debt financing on
or prior to the Closing Date (as defined in the Merger Agreement).
“Agreed
Financing Amount” means (without duplication) the aggregate principal amount of indebtedness that is initially incurred pursuant
to the Debt Commitment Letter (as reduced pursuant to Section 6.23(a) of the Merger Agreement) and/or the Engagement Letters,
as applicable, in an aggregate principal amount not to exceed Assumed Indebtedness.
“Agreed
Settlement” means the settlement of claims asserted prior to the date of this Agreement in Fishel, et al. v. Liberty Media
Corp., et al., C.A. No. 2021-0820-KSJM as further described and set forth in that certain Settlement Term Sheet, by and among
(i) Plaintiff Vladimir Fishel, derivatively on behalf of SiriusXM and directly on behalf of himself and other members of the settlement
class, (ii) nominal defendant SiriusXM, (iii) defendant Liberty Media and (iv) defendants Gregory B. Maffei, James E.
Meyer, Jennifer Witz, Evan D. Malone, David A. Blau, Robin P. Hickenlooper, Michael Rapino, David Zaslav, Jonelle Procope, Kristina M.
Salen and Carl E. Vogel, effective as of December 8, 2023.
“Allocated
Executive Expenses” means the sum of (1) the product of (A) the LSXM Executive Percentage multiplied by (B) the
sum of (i) the Executive Expenses incurred through (and including) the Redemption Date, (ii) the Executive Annual Bonus with
respect to the calendar year immediately prior to the calendar year in which the Redemption occurs (to the extent such Executive Annual
Bonus is earned but remains unpaid as of the Effective Time) and (iii) the Executive Annual Bonus with respect to the calendar year
in which the Redemption occurs assuming the target level of performance and prorated based on a fraction where (x) the numerator
is equal to the number of days beginning on (and including) January 1st of the calendar year to which performance relates through
(and including) the Redemption Date and (y) the denominator equals the number of days in the calendar year to which performance
relates, (2) the dollar value set forth in that certain letter agreement entered into with Liberty Media’s Chief Executive
Officer in connection with the transactions contemplated by this Agreement and the Merger Agreement, and (3) the employer portion
of any employment, payroll, social security, unemployment or similar taxes payable with respect to the amounts described in subclauses
(1) and (2), in each case, as determined by Liberty Media.
“Alternative
Settlement” means, in the event that the Agreed Settlement has been terminated prior to the Closing, a settlement of claims
asserted in the Specified Litigation Matter which has been finally approved by the Court of Chancery of the State of Delaware (or any
trial court of competent jurisdiction).
“Alternative
Settlement Amount” means, if an Alternative Settlement exists prior to the Measurement Date, the total amount payable pursuant
to the Alternative Settlement.
“Assets”
means assets, properties, interests and rights (including goodwill), wherever located, whether real, personal or mixed, tangible or intangible,
movable or immovable, in each case whether or not required by GAAP to be reflected in financial statements or disclosed in the notes
thereto.
“Assumed
Indebtedness” means, the sum, determined after the close of market on the Measurement Date, of the outstanding principal and
accrued and unpaid interest and, to the extent payable as a result of the Transaction Agreements or the transactions contemplated hereby
or thereby, any premiums or prepayment penalties or other costs in respect of indebtedness for borrowed money or evidenced by notes,
debentures, bonds or other similar instruments of Liberty Media and its Subsidiaries attributed to Liberty SiriusXM that has been or
will be allocated to, assigned to and/or assumed by SplitCo and its Subsidiaries pursuant to this Agreement on or prior to the Effective
Time, including, to the extent outstanding, the 2.75% Exchangeable Senior Debentures and the Margin Loan Agreement; provided that,
notwithstanding anything herein to the contrary, in no event shall the 3.75% Convertible Senior Notes be considered Assumed Indebtedness.
“Business
Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed
in the City of New York or Denver, Colorado.
“Certificate
Date” means the date that is no later than six (6) Business Days prior to the Closing Date; provided, however,
that if as of such date the Liberty Stockholder Approval shall not have been previously obtained, the “Certificate Date”
shall be the Business Day immediately following the date on which the Liberty Stockholder Approval is obtained.
“Contract”
means any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, license, lease, contract or other agreement,
instrument or obligation.
“Control”
means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through ownership of securities or partnership, membership, limited liability company, or other ownership
interests, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative
to the foregoing.
“Debt
Commitment Letter” means, the Debt Commitment Letter (as defined in the Merger Agreement) provided to Liberty Media on the
date hereof.
“Debt
Fee Letter” means the Fee Letter (as defined in the Merger Agreement) provided to Liberty Media on the date hereof.
“Debt
Excess Fees” means, to the extent that any provisions related to fees contained in the Debt Fee Letter, Debt Commitment Letter
or Engagement Letters are amended, supplemented or otherwise modified after the date hereof so as to increase in aggregate the fees payable
thereunder on or prior to the Closing Date (as defined in the Merger Agreement), the amount equal to the excess of the aggregate amount
of such increased fees over the aggregate amount of fees provided under the applicable Debt Fee Letter, Debt Commitment Letter or Engagement
Letters as of the date hereof that would have been payable on or prior to the Closing Date (as defined in the Merger Agreement), in each
case, with respect to the Agreed Financing Amount.
“DGCL”
means the Delaware General Corporation Law (as the same may be amended from time to time).
“Engagement
Letters” means the Engagement Letters (as defined in the Merger Agreement) provided to Liberty Media on the date hereof.
“Exchange
Ratio” means the quotient (rounded to the nearest ten thousandth) of (1) (A) the aggregate number of Liberty Owned
SiriusXM Shares (as defined in the Merger Agreement) minus (B) the LSXM Net Liabilities Share Adjustment divided by
(2) (A) the Fully Diluted LSXM Share Number minus (B) the Exercise Price Add-Back.
“Executive
Annual Bonus” means the annual bonus payable by Liberty Media to its Chief Executive Officer pursuant to the Executive Employment
Agreement.
“Executive
Employment Agreement” means that certain Executive Employment Agreement by and between Liberty Media and Gregory B. Maffei,
dated as of December 13, 2019, as amended and in effect as of the date hereof.
“Executive
Expenses” means the aggregate salary, health, retirement and other compensation, benefits, perquisites, legal fees and other
expense reimbursements owed to Liberty Media’s Chief Executive Officer pursuant to Section 9.6 of the Executive Employment
Agreement, any Special Reimbursement payments owed to Liberty Media’s Chief Executive Officer (as defined and described in Section 9.7
of the Executive Employment Agreement) and other expenses paid by Liberty Media in connection with the employment of its Chief Executive
Officer.
“Exercise
Price Add-Back” means the quotient of (i) the aggregate exercise price of the Liberty SiriusXM option awards with a grant
date prior to the date hereof that are outstanding after the close of market on the Measurement Date (provided that such Liberty
SiriusXM option awards having an exercise price exceeding the Closing Reference Price (as defined below) shall be deemed for this purpose
to have an exercise price equal to the Closing Reference Price) divided by (ii) the average of the LSXMK Daily VWAP over
the ten (10) consecutive trading days ending on the Measurement Date (the “Closing Reference Price”).
“Fully
Diluted LSXM Share Number” means the sum, determined after the close of market on the Measurement Date and without duplication,
of (i) all issued and outstanding shares of Liberty SiriusXM Common Stock, including the shares of Liberty SiriusXM Common Stock
to be issued in respect of the acceleration and vesting of the Liberty SiriusXM restricted stock awards and the Liberty SiriusXM restricted
stock unit awards in accordance with Section 2.4(c) and Section 2.4(d) (which, for the avoidance of doubt, shall
exclude shares of Liberty SiriusXM Common Stock withheld by Liberty Media to satisfy applicable tax withholding obligations relating
thereto), (ii) the gross number of shares of Liberty SiriusXM Common Stock subject to all unexercised Liberty SiriusXM option awards
with a grant date prior to the date hereof (i.e., without regard to the exercise price applicable thereto) and (iii) the sum of
(A) the aggregate number of shares of LSXMA that would be issuable upon conversion based on the Conversion Rate (as defined in the
3.75% Convertible Senior Notes Indenture) of the 3.75% Convertible Senior Notes and (B) the aggregate number of LSXMA shares equal
to (x) the LSXM Convert Measurement Indebtedness divided by (y) the LSXMA Daily VWAP.
“GAAP”
means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
“Governmental
Authority” means any federal, state, local, domestic, foreign or multinational government, court, arbitrator, regulatory or
administrative agency, commission or authority or other governmental instrumentality.
“Investee”
of any Person means any Person in which such first Person owns or controls an equity or voting interest.
“Law”
means all laws (including common law), statutes, ordinances, codes, rules, regulations, decrees and orders of Governmental Authorities.
“Liabilities”
means any and all debts, liabilities, commitments and obligations, whether or not fixed, contingent or absolute, matured or unmatured,
direct or indirect, liquidated or unliquidated, accrued or unaccrued, known or unknown, and whether or not required by GAAP to be reflected
in financial statements or disclosed in the notes thereto (other than taxes).
“Liberty
Board” means the Board of Directors of Liberty Media or a duly authorized committee thereof (including the Executive Committee
of the Board of Directors of Liberty Media).
“Liberty
Charter” means the Restated Certificate of Incorporation of Liberty Media, as in effect immediately prior to the Redemption
Date.
“Liberty
Charter Documents” means the certificate of incorporation and bylaws of Liberty Media, in each case as amended to the date
of this Agreement.
“Liberty
Entity” or “Liberty Entities” means and includes each of Liberty Media and its Subsidiaries (other than
the SplitCo Entities and other than SiriusXM and its Subsidiaries), after giving effect to the Restructuring.
“Liberty
Ownership Percentage” means a fraction, the numerator of which is equal to the Liberty Owned SiriusXM Shares and the denominator
of which is equal to all of the outstanding shares of SiriusXM Common Stock as of immediately prior to the Merger Effective Time.
“Liberty
Retained Assets” means all Assets which are held at the Effective Time by the Liberty Entities, including the attorney-client
privilege and any work-product that Liberty Media or any of its Subsidiaries (including any attorney-client privilege and work product
of SplitCo prior to the Effective Time) may have; provided that Liberty Retained Assets shall not include any assets related to
Taxes (including any Tax Items or rights to receive any Tax Refunds (each as defined in the Tax Sharing Agreement)), which are governed
by the Tax Sharing Agreement.
“Liberty
Retained Businesses” means all businesses which are held at the Effective Time by the Liberty Entities.
“Liberty
Retained Liabilities” means all Liabilities (except for Liabilities related to Taxes, which shall be governed by the Tax Sharing
Agreement) of the Liberty Entities, including all Liabilities arising out of or related to the business, assets (including Contracts)
or liabilities of the Liberty Entities. For the avoidance of doubt, the Liberty Retained Liabilities shall not include (x) any obligations
in respect of the Specified Litigation Matter or any Transaction Litigation or (y) SplitCo Liabilities.
“Losses”
means any and all damages, losses, deficiencies, Liabilities, penalties, judgments, settlements, claims, payments, fines, interest, costs
and expenses (including (i) the fees and expenses of any and all actions and demands, assessments, judgments, settlements and compromises
relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’
fees and expenses incurred in the investigation or defense thereof or in asserting, preserving or enforcing an Indemnitee’s rights
hereunder and (ii) any applicable deductible under relevant insurance policies actually paid), whether in connection with a Third-Party
Claim or otherwise, less any award or other proceeds actually received by the applicable indemnified party as a result of such Losses.
“LSXM
Convert Measurement Indebtedness” means (i) if positive, an amount equal to (a) the aggregate principal amount of
the 3.75% Convertible Senior Notes on the Measurement Date minus (b) the LSXM Convert Measurement Market Value or (ii) if
the amount under clause (i) is negative, zero.
“LSXM
Convert Measurement Market Value” means the product of (i) the LSXM Convert Measurement Price multiplied by (ii) LSXM
Convert Outstanding.
“LSXM
Convert Measurement Price” means the product of (i) LXSMA Daily VWAP multiplied by (ii) the Conversion Rate
(as defined in the 3.75% Convertible Senior Notes Indenture) on the Measurement Date.
“LSXM
Convert Outstanding” means (i) the aggregate principal amount of the 3.75% Convertible Senior Notes outstanding after
the close of market on the Measurement Date divided by (ii) $1,000.
“LSXM
Executive Percentage” means the percentage allocated to LSXMK (as referenced in Exhibit B-1 to the Executive Employment
Agreement) with respect to the applicable period, as calculated pursuant to Exhibit B-1 and Exhibit B-2 to the Executive Employment
Agreement.
“LSXM
Net Liabilities Share Adjustment” means the quotient of (1) (A) the Net Indebtedness of Liberty SiriusXM plus
(B) Agreed Debt Fees plus (C) the Net Tax Amount plus (D) the LSXM Transaction Expenses plus (E) the
Specified Litigation Matter Amount, unless, as of the Measurement Date, the Agreed Settlement has been finally approved (but subject
to any condition or contingency thereon relating specifically to the Merger Closing pursuant to the terms of the Merger Agreement) by
a court of competent jurisdiction, less the Alternative Settlement Amount, if any, plus (F) the aggregate fair value (as
of the grant date) of all Liberty SiriusXM option awards with a grant date after the date hereof plus (G) fifty percent (50%)
of the fees payable in connection with the filings to be made pursuant to Section 6.6 of the Merger Agreement to obtain the Requisite
FCC Approvals (as defined in the Merger Agreement) minus (H) 16.5% of the fees payable to the SEC (as defined in the Merger
Agreement) in connection with the filings to be made pursuant to Section 6.1 of the Merger Agreement minus (I) the Debt
Excess Fees divided by (2) the Reference Price.
“LSXM
Transaction Expenses” means, without duplication, (i) the aggregate amount of unpaid fees, costs and other expenses of
any investment bankers, financial advisors (including the brokers referred to in Section 3.6 of the Merger Agreement), attorneys,
accountants and other consultants, advisors or other Representatives incurred by or on behalf of, or payable by, Liberty Media, SplitCo
or their respective Subsidiaries arising from or in connection with the Transactions and incurred or accrued on or prior to the Measurement
Date plus (ii) a good faith estimate of the aggregate amount of such unpaid fees, costs and other expenses expected to be
incurred by or on behalf of, or to be payable by, Liberty Media, SplitCo or their respective Subsidiaries arising from or in connection
with the Transactions after the Measurement Date and prior to the Merger Closing.
“LSXMA
Daily VWAP” means the average of the Daily VWAP (as defined in the 3.75% Convertible Senior Notes Indenture) of the Series A
Liberty SiriusXM Common Stock for the ten (10) consecutive Trading Days (as defined in the 3.75% Convertible Senior Notes Indenture)
ending on the Measurement Date.
“LSXMK
Daily VWAP” means per share volume-weighted average trading price of the Series C Liberty SiriusXM Common Stock as displayed
under the heading “Bloomberg VWAP” on Bloomberg page “LSXMK.US <equity> AQR” (or its equivalent successor
if such page is not available) in respect of the period from the scheduled opening of trading until the scheduled close of trading
of the primary trading session on such trading day and will be determined without regard to afterhours trading or any other trading outside
of the regular trading session.
“Margin
Loan Agreement” means that certain Third Amended and Restated Margin Loan Agreement, dated as of February 24, 2021 (as
amended by that certain First Amendment to Third Amended and Restated Margin Loan Agreement, dated as of March 6, 2023, and as may
be further amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among Liberty SIRI
Marginco, LLC, a wholly owned Subsidiary of Liberty Media, as borrower, the lenders from time to time party thereto, BNP Paribas, New
York Branch, as administrative agent and BNP Paribas as calculation agent, which obligations thereunder are secured by shares of SiriusXM
Common Stock.
“Measurement
Date” means the date that is seven (7) Business Days prior to the Closing Date.
“Net Indebtedness
of Liberty SiriusXM” means, after the close of market on the Measurement Date, the amount in U.S. dollars equal to (i) the
Assumed Indebtedness minus (ii) the Transferred Cash.
“Order”
means any order, injunction, judgment, decree or ruling of any court, governmental or regulatory authority, agency, commission or body.
“Person”
means any individual, corporation, company, partnership, trust, incorporated or unincorporated association, joint venture or other entity
of any kind.
“Qualifying
Subsidiary” means a former direct or indirect Subsidiary of Liberty Media, any successor of any such former Subsidiary, and
the parent company (directly or indirectly) of any such former Subsidiary or successor, including SplitCo.
“Redemption
Agent” means a redemption agent mutually acceptable to Liberty Media and SiriusXM, with each acting reasonably.
“Reference
Price” means $4.23.
“Representatives”
means, as to any Person, that Person’s directors, officers, employees, investment bankers, financial advisors, attorneys, accountants,
agents controlled affiliates, controlling persons and other representatives. As to Liberty Media and SplitCo, “Representative”
specifically excludes SiriusXM and its Representatives and, as to SiriusXM, “Representative” specifically excludes Liberty
Media, SplitCo and their respective Representatives, it being understood that the members of the board of directors of SiriusXM who are
directors or officers of Liberty Media or SplitCo shall be considered Representatives of Liberty Media or SplitCo (as applicable) and
not of SiriusXM, for purposes of this Agreement.
“Restraint”
means any Law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority.
“Restructuring
Plan” means the Restructuring Plan attached hereto as Exhibit C.
“Securities
Act” means the Securities Act of 1933, as amended, together with all rules and regulations promulgated thereunder.
“SiriusXM
Common Stock” means common stock of SiriusXM, par value $0.001 per share.
“Special
Committee” means the committee of the Board of Directors of SiriusXM comprised of independent directors charged with, among
other things, reviewing the transactions contemplated by the Merger Agreement.
“Specified
Litigation Matter” means all claims asserted in Fishel, et al. v. Liberty Media Corp., et al., C.A. No. 2021-0820-KSJM,
pending as of the date hereof in the Court of Chancery of the State of Delaware.
“SplitCo
Assets” means all of Liberty Media’s interest in SiriusXM, corporate cash and any other assets of Liberty Media and
its Subsidiaries attributed to Liberty SiriusXM as of immediately prior to the Contribution, including those assets set forth on Exhibit D
hereto; provided that SplitCo Assets shall not include any assets related to Taxes (including any Tax Items or rights to
receive any Tax Refunds (each as defined in the Tax Sharing Agreement)), which shall be governed by the Tax Sharing Agreement.
“SplitCo
Board” means the Board of Directors of SplitCo or a duly authorized committee thereof.
“SplitCo
Businesses” means the businesses attributed to Liberty SiriusXM as of immediately prior to the Contribution, including
any subsequent changes thereto as are permitted by the Transaction Agreements, in each case in accordance with the Liberty Charter Documents.
“SplitCo
Entity” or “SplitCo Entities” means each of SplitCo and its Subsidiaries, after giving effect to the Restructuring,
including, from and after the consummation of the Merger, SiriusXM and its Subsidiaries.
“SplitCo
Equity Plan” means the Sirius XM Holdings Inc. 2024 Long-Term Stock Incentive Plan attached in the form hereto as Exhibit E.
“SplitCo
Liabilities” means all Liabilities (except for Liabilities related to Taxes which shall be governed by the Tax Sharing Agreement)
of Liberty Media and its Subsidiaries attributed to Liberty SiriusXM as of immediately prior to the Contribution and all Liabilities
of Liberty Media and its Subsidiaries to the extent arising out of, related to or in connection with the SplitCo Businesses (whether
incurred before, on or after the Closing), including those set forth on Exhibit F hereto.
“SplitCo
Transitional Plan” means the SplitCo Transitional Stock Adjustment Plan.
“Subsidiary”
when used with respect to any Person, means (i) a corporation a majority in voting power of whose share capital or capital stock
with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such Person, by
one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person, whether or not such power is
subject to a voting agreement or similar encumbrance, (ii) a partnership or limited liability company in which such Person or a
Subsidiary of such Person is, at the date of determination, (a) in the case of a partnership, a general partner of such partnership
with the power affirmatively to direct the policies and management of such partnership or (b) in the case of a limited liability
company, the managing member or, in the absence of a managing member, a member with the power affirmatively to direct the policies and
management of such limited liability company, (iii) any other Person (other than a corporation) in which such Person, one or more
Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination
thereof, has or have (a) the power to elect or direct the election of a majority of the members of the governing body of such Person,
whether or not such power is subject to a voting agreement or similar encumbrance, or (b) in the absence of such a governing body,
at least a majority ownership interest or (iv) any other Person of which an aggregate of 50% or more of the equity interests are,
at the time, directly or indirectly, owned by such Person and/or one or more Subsidiaries of such Person. For purposes of this Agreement,
both prior to and after the Effective Time, none of SplitCo, SiriusXM and their respective Subsidiaries shall be deemed to be Subsidiaries
of Liberty Media or any of its Subsidiaries.
“Tax”
and “Taxes” means any and all federal, state, local or non-U.S. taxes, charges, fees, duties, levies, imposts,
rates or other like governmental assessments or charges, and, without limiting the generality of the foregoing, shall include income,
gross receipts, net worth, property, sales, use, license, excise, franchise, capital stock, employment, payroll, unemployment insurance,
social security, Medicare, stamp, environmental, value added, alternative or added minimum, ad valorem, trade, recording, withholding,
occupation or transfer taxes, together with any related interest, penalties and additions imposed by any tax authority.
“Tax Sharing
Agreement” means the Tax Sharing Agreement to be entered into by and between Liberty Media and SplitCo, substantially in the
form attached hereto as Exhibit G.
“Tax Sharing
Policies” means the policies relating to taxes included in the management and allocation policies adopted by the Liberty Board
in connection with the reclassification of Liberty Media’s common stock on August 3, 2023.
“Transaction
Agreements” has the meaning given to such term in the Merger Agreement.
“Transferred
Cash” means, after the close of market on the Measurement Date, all of the cash and cash equivalents attributed to Liberty
SiriusXM that has been or will be transferred to SplitCo and its Subsidiaries pursuant to this Agreement after giving effect to reduction
for any payments, and a good faith estimate of any unpaid amounts, of Allocated Executive Expenses, payments under Section 6.2(b) of
the Merger Agreement as contemplated by Section 4.9, and any other payments contemplated to be made in performance by Liberty or
any of its Subsidiaries of obligations under the Transaction Agreements, in each case which expenses (or contemplated payments) are not
otherwise taken into account in the calculation of LSXM Net Liabilities Share Adjustment; provided, that Transferred Cash shall
(i) be calculated net of outstanding outbound checks, draws, ACH debits and wire transfers and (ii) include inbound checks,
draws, ACH credits and wire transfers deposited or available for deposit.
“Treasury
Regulations” means the Treasury regulations promulgated under the Code.
(b) As
used herein, the following terms will have the meanings set forth in the applicable section of this Agreement set forth below:
Agreement |
Preamble |
Awards |
Section 2.4(a) |
Closing |
Section 5.1 |
Closing
Date |
Section 5.1 |
Code |
Recitals |
Coffeyville |
Exhibit A |
Contribution |
Section 1.2(a) |
Disclosing
Party |
Section 4.6(a) |
Effective
Time |
Section 2.1(a) |
Fractional
Share |
Section 2.1(h) |
Indemnitee |
Section 4.1(d)(i) |
Indemnitor |
Section 4.1(d)(i) |
JPM
Indemnification Obligations |
Schedule
F |
Liberty
Indemnified Parties |
Section 4.1(a) |
Liberty
Media |
Preamble |
Liberty
SiriusXM |
Recitals |
Liberty
SiriusXM Common Stock |
Recitals |
Liberty
SiriusXM option award |
Section 2.4(b) |
Liberty
SiriusXM restricted stock awards |
Section 2.4(c) |
Liberty
SiriusXM restricted stock unit award |
Section 2.4(d) |
LSXMA |
Recitals |
LSXMB |
Recitals |
LSXMK |
Recitals |
Merger
Agreement |
Recitals |
Merger
Closing |
Recitals |
Merger
Sub |
Recitals |
Net
Tax Amount |
Exhibit A |
Officer’s
Certificate |
Section 4.2(a) |
Proprietary
Information |
Section 4.6(a) |
Receiving
Party |
Section 4.6(b) |
Redemption |
Recitals |
Redemption
Date |
Section 2.1(a) |
Restructuring |
Section 1.1 |
Restructuring
Agreements |
Section 3.1(b) |
Returned
Escrow Funds |
Section 4.1(n) |
Separable
Claims |
Section 4.1(d)(ii) |
Separate
Legal Defenses |
Section 4.1(d)(ii) |
SiriusXM |
Preamble |
Specified
Litigation Matter Amount |
Exhibit A |
Specified
Payment |
Section 4.1(n) |
Specified
Transaction Litigation |
Section 4.1(n) |
Split-Off
Transactions |
Recitals |
SplitCo |
Preamble |
SplitCo
Bylaws |
Section 2.1(b) |
SplitCo
Charter |
Section 2.1(b) |
SplitCo
Common Stock |
Recitals |
SplitCo
Indemnified Parties |
Section 4.1(b) |
SplitCo
option award |
Section 2.4(b) |
Stockholder
Meeting |
Section 2.1(a) |
Tax
Adjustment Period |
Exhibit A |
Tax
Settlement Date |
Exhibit A |
Third-Party
Claim |
Section 4.1(d)(i) |
Voting
Agreement |
Exhibit F |
7.2 Survival;
No Third-Party Rights.
(a) The
representations and warranties contained herein shall not survive the Effective Time or the termination of this Agreement. The covenants
and agreements herein that relate to actions to be taken at or after the Effective Time, including Section 1.2(c) and Section 4.1,
shall survive the Effective Time until satisfied in full.
(b) Except
for the indemnification rights of the Liberty Indemnified Parties and the SplitCo Indemnified Parties pursuant to Section 4.1 and
the rights of the directors and officers of the Surviving Corporation to enter into indemnification agreements with the Surviving Corporation
pursuant to Section 4.10, nothing expressed or referred to in this Agreement is intended or will be construed to give any Person
other than the parties hereto and their respective successors and assigns any legal or equitable right, remedy or claim under or with
respect to this Agreement, or any provision hereof, it being the intention of the parties hereto that this Agreement and all of its provisions
and conditions are for the sole and exclusive benefit of the parties to this Agreement and their respective successors and assigns.
7.3 Notices.
All notices and other communications hereunder shall be in writing and shall be delivered in person, by electronic mail (with confirming
copy sent by one of the other delivery methods specified herein), by overnight courier or sent by certified, registered or express air
mail, postage prepaid, and shall be deemed given when so delivered in person, or when so received by electronic mail or courier, or,
if mailed, three (3) calendar days after the date of mailing, as follows:
if
to any Liberty Entity: |
|
Liberty Media Corporation
12300 Liberty Boulevard
Englewood, Colorado 80112
Email: [Separately provided]
Attention: Chief Legal Officer |
if
to any SplitCo Entity (prior to the consummation of the Merger): |
|
Liberty Sirius XM Holdings Inc.
12300 Liberty Boulevard
Englewood, Colorado 80112
Email: [Separately provided]
Attention: Chief Legal Officer |
|
|
|
with
a copy in each case (which shall not constitute notice) to: |
|
O’Melveny & Myers
L.L.P.
Two Embarcadero Center, 28th
Floor
San Francisco, CA 94111
Attention: C. Brophy Christensen
Bradley L. Finkelstein
Noah Kornblith
E-mail: bchristensen@omm.com
bfinkelstein@omm.com
nkornblith@omm.com |
|
|
|
if
to any SplitCo Entity (after the consummation of the Merger) or to SiriusXM: |
|
Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: Patrick Donnelly
E-Mail:
[Separately provided] |
|
|
|
with
a copy (which shall not constitute notice) to: |
|
Simpson Thacher & Bartlett
LLP
425 Lexington Avenue
New York, New York 10017
Attention: Eric Swedenburg, Esq.
Johanna Mayer, Esq.
E-Mail: eric.swedenburg@stblaw.com
Johanna.mayer@stblaw.com |
|
|
|
if
to the Special Committee of SiriusXM: |
|
Eddy W. Hartenstein
Lead Independent Director
c/o Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: General Counsel
E-Mail: [Separately provided] |
|
|
|
with
a copy (which shall not constitute notice) to: |
|
Debevoise & Plimpton
LLP
66 Hudson Boulevard
New York, New York 10001
Attention: Michael A. Diz
William D. Regner
Katherine Durnan Taylor
E-Mail: madiz@debevoise.com
wdregner@debevoise.com
ketaylor@debevoise.com |
or to such other address as the party to whom
notice is given may have previously furnished to the other party in writing in the manner set forth above.
7.4 Entire
Agreement. This Agreement (including the Exhibits and Schedules attached hereto) together with the Restructuring Agreements, the
Merger Agreement and the Tax Sharing Agreement embodies the entire understanding among the parties relating to the subject matter hereof
and thereof and supersedes and terminates any prior agreements and understandings among the parties with respect to such subject matter,
and no party to this Agreement shall have any right, responsibility or Liability under any such prior agreement or understanding. Any
and all prior correspondence, conversations and memoranda are merged herein and shall be without effect hereon. No promises, covenants
or representations of any kind, other than those expressly stated herein, have been made to induce either party to enter into this Agreement.
7.5 Binding
Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Except with respect to a merger of a party, neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the
other parties; provided, however, that Liberty Media and SplitCo may assign their respective rights, interests, duties,
liabilities and obligations under this Agreement to any of their respective wholly owned Subsidiaries, but such assignment shall not
relieve Liberty Media or SplitCo, as the assignor, of its obligations hereunder.
7.6 Governing
Law; Jurisdiction. This Agreement and the legal relations among the parties hereto will be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Delaware applicable to contracts made and performed wholly therein, without giving
effect to any choice or conflict of laws provisions or rules that would cause the application of the laws of any other jurisdiction.
Each of the parties hereto irrevocably agrees that any legal Action or proceeding with respect to this Agreement, and the rights and
obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement, and the rights and obligations
arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the
Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over
a particular matter, any federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with regard
to any such Action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction
of the aforesaid courts and agrees that it will not bring any Action relating to this Agreement or the transactions contemplated hereby
in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense,
counterclaim or otherwise, in any Action or proceeding with respect to this Agreement (a) any claim that it is not personally subject
to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with Section 7.3 and
this Section 7.6, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable law, any claim that (i) the
suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding
is improper or (iii) this Agreement or the subject matter hereof may not be enforced in or by such courts. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 7.3 shall be deemed
effective service of process on such party.
7.7 Waiver
of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH
ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.7.
7.8 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Upon a determination that
any provision of this Agreement is prohibited or unenforceable in any jurisdiction, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the provisions
contemplated hereby are consummated as originally contemplated to the fullest extent possible.
7.9 Amendments;
Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each of Liberty Media, SplitCo and SiriusXM (through the Special Committee), or in the case of
a waiver, by the party against whom the waiver is to be effective, prior to termination of the Merger Agreement in accordance with its
terms. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
Except as otherwise provided herein, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by applicable law. Any consent provided under this Agreement must be in writing, signed by the party against whom enforcement
of such consent is sought.
7.10 No
Strict Construction; Interpretation.
(a) Liberty
Media, SplitCo and SiriusXM each acknowledge that this Agreement has been prepared jointly by the parties hereto and shall not be strictly
construed against any party hereto.
(b) When
a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article of,
a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever
the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any
agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto
and instruments incorporated therein. References to a Person are also to its permitted successors and assigns and references to a party
means a party to this Agreement. Prior to the Effective Time, all obligations of Liberty Media to pay any fees, costs or expenses referenced
in this Agreement or the Merger Agreement shall in all cases be obligations attributed to Liberty SiriusXM in accordance with Liberty
Media’s management and allocation policies and, to the extent unpaid prior to the Measurement Date, shall reduce the amount of
Transferred Cash unless otherwise taken into account in the calculation of the LSXM Net Liabilities Share Adjustment.
7.11 Conflicts
with Tax Sharing Agreement. Except as otherwise expressly set forth in this Agreement or in another Transaction Agreement, following
the Effective Time all matters relating to Taxes of the parties and their respective Subsidiaries shall be governed exclusively by the
Tax Sharing Agreement, and in the event of a conflict between this Agreement and the Tax Sharing Agreement with respect to such matters,
the provisions of the Tax Sharing Agreement shall prevail.
7.12 Counterparts.
This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same agreement. The Agreement may be delivered by electronic mail transmission of a signed copy
thereof.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the day and year first above written.
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LIBERTY
MEDIA CORPORATION |
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By: |
/s/ Gregory B. Maffei |
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Name: Gregory B. Maffei |
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Title: President and Chief Executive Officer |
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LIBERTY
SIRIUS XM HOLDINGS INC. |
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By: |
/s/ Renee L. Wilm |
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Name: Renee L. Wilm |
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Title: Chief Legal Officer and Chief Administrative
Officer |
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SIRIUS
XM HOLDINGS INC. |
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By: |
/s/ Patrick L. Donnelly |
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Name: Patrick L. Donnelly |
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Title: Executive Vice President, General Counsel
and Secretary |
[Signature Page to Reorganization Agreement]
List of Omitted Exhibits
The following exhibits and schedules to this
Reorganization Agreement, dated as of December 11, 2023, by and among Liberty Media Corporation, Liberty Sirius XM Holdings Inc.,
and Sirius XM Holdings Inc. have not been provided herein:
Exhibit A
– Certain Definitions
Exhibit B-1
– Form of SplitCo Amended and Restated Certificate of Incorporation
Exhibit B-2
– Form of SplitCo Amended and Restated Bylaws
Exhibit C
– Restructuring Plan
Exhibit D
– SplitCo Assets
Exhibit E
– SplitCo Equity Plan
Exhibit F
– SplitCo Liabilities
Exhibit G
– Form of Tax Sharing Agreement
The registrant hereby undertakes to furnish supplementally
a copy of any omitted exhibit to the Securities and Exchange Commission upon request.
EXHIBIT 10.2
EXECUTION VERSION
VOTING AGREEMENT
This Voting Agreement (this “Agreement”),
dated as of December 11, 2023, is entered into by and among Liberty Media Corporation, a Delaware corporation (“Liberty”),
Liberty Sirius XM Holdings Inc., a Delaware corporation and a wholly owned Subsidiary of Liberty (“SplitCo”), Sirius
XM Holdings Inc., a Delaware corporation (the “SiriusXM”), and each of the undersigned stockholders of Liberty (each,
a “Stockholder” and together, the “Stockholders”).
WHEREAS, subject to the terms and conditions of
the Agreement and Plan of Merger (as the same may be amended, supplemented or modified, the “Merger Agreement”), dated
as of the date hereof, among Liberty, SplitCo, Radio Merger Sub, LLC, a Delaware limited liability company and a wholly owned Subsidiary
of SplitCo (“Merger Sub”), and SiriusXM, among other transactions contemplated by the Merger Agreement, Merger Sub
will be merged with and into SiriusXM (the “Merger”), with SiriusXM surviving the Merger as a wholly owned subsidiary
of SplitCo;
WHEREAS, in connection with the negotiation and
execution of the Merger Agreement and related agreements and the transactions contemplated thereby, the board of directors of SiriusXM
has established a special committee thereof consisting only of independent and disinterested directors (the “Special Committee”);
WHEREAS, as of the date of this Agreement, each
Stockholder Beneficially Owns or owns of record, and, with respect to the Split-Off and the other transactions contemplated by the Merger
Agreement, has the power to vote or direct the voting of, certain shares of Series A Liberty Sirius XM Common Stock and Series B
Liberty Sirius XM Common Stock listed on Schedule A hereto (all such shares, the “Subject Shares”); and
WHEREAS, as a condition and inducement for Liberty
and SiriusXM to enter into the Merger Agreement, Liberty and SiriusXM (through the Special Committee) have required that each Stockholder,
in his, her or its capacity as a stockholder of Liberty, enter into this Agreement, and each Stockholder has agreed to enter into this
Agreement;
NOW THEREFORE, in consideration of the foregoing,
the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, intending to be legally bound, the parties hereto agree as set forth herein:
1. Definitions.
Capitalized terms not defined in this Agreement have the meanings assigned to those terms in the Merger Agreement.
2. Effectiveness;
Termination. This Agreement shall be effective upon signing. This Agreement shall automatically terminate without further action
upon the earliest to occur (the “Expiration Date”) of (a) such date and time as the Merger Agreement or the Reorganization
Agreement shall have been validly terminated in accordance with Article IX thereof, (b) the Merger Effective Time, (c) the
written agreement of Liberty, SiriusXM (through the Special Committee) and the Stockholders to terminate this Agreement and (d) the
date of any material modification, waiver or amendment of the Merger Agreement as in effect on the date of this Agreement that adversely
affects the value or tax treatment of the consideration payable to the Stockholders, causes such consideration to include any property
other than SplitCo Common Stock (and cash in lieu of fractional shares of SplitCo Common Stock), or adds new conditions or modifies any
existing conditions to the consummation of the Merger that materially adversely affect any Stockholder, without the prior written consent
of such Stockholder (provided that, in the case of this clause (d), this Agreement shall terminate only with respect to such adversely
affected Stockholder(s)); provided, that the representations, warranties, covenants and agreements contained in Sections 6,
7 and 8 of this Agreement will terminate at the Merger Effective Time; provided, further, that (x) this
Section 2 and Sections 9 through 26 of this Agreement shall survive any such termination, and (y) such
termination shall not relieve any party of any liability or damages resulting from (1) fraud or (2) willful material breach
by such party prior to termination, in each case, as determined by a court of competent jurisdiction pursuant to a final and nonappealable
judgment. For purposes of this Agreement, (A) “fraud” means intentional and knowing common law fraud under Delaware law
in the representations and warranties set forth in this Agreement and (B) “willful material breach” means a material
breach of a party’s covenants and agreements set forth in this Agreement that is the consequence of an act or omission by a party
with the knowledge that the taking of such act or failure to take such action would be a material breach of such party’s covenants
or agreements.
3. Voting
Agreement.
(a) From
the date hereof until the Expiration Date (the “Support Period”), each Stockholder irrevocably and unconditionally
hereby agrees that at any meeting (whether annual or special and each postponement, recess, adjournment or continuation thereof) of the
holders of the Series A Liberty SiriusXM Common Stock and Series B Liberty SiriusXM Common Stock (collectively, the “Liberty
Stockholders”) (including the Liberty Stockholders Meeting), however called, and in connection with any written consent of the
Liberty Stockholders, such Stockholder shall:
| (i) | appear at such meeting or otherwise cause all of the Subject Shares and all other voting securities of the Liberty SiriusXM tracking
stock group over which he, she or it has acquired Beneficial Ownership or record ownership after the date hereof or otherwise has the
power to vote or direct the voting of (including any Subject Shares acquired by means of purchase, dividend or distribution, or issued
upon the exercise of any stock options to acquire Subject Shares or the conversion of any convertible securities, or pursuant to any other
equity awards or derivative securities or otherwise over which he, she or it has the power to vote) (together with the Subject Shares,
collectively, the “Shares”) as of the applicable record date, to be counted as present thereat for purposes of calculating
a quorum; and |
| (ii) | subject to Section 3(c), vote or cause to be voted (including by proxy or written consent, if applicable) all of the Shares (i) in
favor of the Split-Off and the approval of the other transactions contemplated thereby, (ii) in favor of any proposal to adjourn
or postpone such meeting of the Liberty Stockholders to a later date if such adjournment or postponement is proposed in compliance with
Section 6.1(b) of the Merger Agreement, (iii) against any action or proposal in favor of any SplitCo Takeover Proposal,
without regard to the terms of such SplitCo Takeover Proposal, and (iv) against any action, proposal, transaction, agreement or amendment
of any Liberty Charter Document, in each case of this clause (iv) which would reasonably be expected to (A) result in a breach
of any covenant, representation or warranty or any other obligation or agreement of Liberty or SplitCo contained in the Merger Agreement,
or of any Stockholder contained in this Agreement for which such Stockholder has received prior notice from Liberty, SiriusXM or the Special
Committee that it reasonably expects that such action or proposal would result in a breach, (B) result in any of the conditions to
the consummation of the Transactions under the Merger Agreement or the Reorganization Agreement not being fulfilled or (C) prevent,
impede, interfere with, delay, postpone, or adversely affect the consummation of any of the Transactions. |
(b) For
the avoidance of doubt, the foregoing commitments apply to any Shares held by any trust, limited partnership or other entity directly
or indirectly holding Shares for which any Stockholder serves as a partner, stockholder, trustee or in a similar capacity. To the extent
any Stockholder does not have sole control of the voting determinations of such entity, such Stockholder agrees to exercise all voting
rights or other voting determination rights he, she or it has in such entity to carry out the intent and purposes of his, her or its support
and voting obligations in this paragraph and otherwise set forth in this Agreement.
(c) Notwithstanding
anything to the contrary herein, if at any time during the Support Period the board of directors of Liberty makes a Liberty Adverse Recommendation
Change pursuant to Section 6.4(c) of the Merger Agreement (the “Change of Recommendation Event”), then the
obligations, covenants and restrictions of the Stockholders set forth in this Section 3 shall be limited to the number of
shares of Series A Liberty SiriusXM Common Stock and Series B Liberty SiriusXM Common Stock held by the Stockholders equal in
aggregate to 33.37% of the total voting power of the Covered Liberty SiriusXM Voting Stock (such shares, the “Covered Shares”);
provided that if a Change of Recommendation Event occurs, notwithstanding any other obligations hereunder, the Stockholders shall
be expressly permitted to deliver a written consent executed on behalf of, or vote at any meeting of stockholders, their respective Shares
that are not Covered Shares in their sole discretion with respect to the Transactions or any other matters described in Section 3(a)(ii) above
(including, without limitation, with respect to the approval of the Split-Off and the transactions contemplated thereby, including the
Reorganization Agreement, and with respect to any adjournment of any applicable stockholder meeting); provided, further,
that in the event of a Change of Recommendation Event, the Stockholders shall have the right to determine which of the Shares held by
the Stockholders will be included in the Covered Shares (it being understood that this proviso is not intended to change the total number
or percentage of Covered Shares as determined pursuant to this Section 3(c)). For purposes of this Agreement, the “Covered
Liberty SiriusXM Voting Stock” shall mean the issued and outstanding shares of Series A Liberty SiriusXM Common Stock and
Series B Liberty SiriusXM Common Stock entitled to vote on the proposal to approve the Split-Off and the transactions contemplated
thereby, including the Reorganization Agreement, and present in person or by proxy at the applicable stockholder meeting or, with respect
to any action by written consent, the total number of shares of Series A Liberty SiriusXM Common Stock and Series B Liberty
SiriusXM Common Stock outstanding as of the record date established by Liberty with respect to such action by written consent, as applicable.
(d) Each
Stockholder represents, covenants and agrees that, (w) except for this Agreement, he, she or it has not entered into, and shall not
enter into during the Support Period, any commitment, agreement, understanding or other similar arrangement with any person to vote or
give instructions in any manner with respect to any Shares, including any voting agreement or voting trust, (x) he, she or it shall
not enter into during the Support Period, any agreement, arrangement or understanding with any Person, and has not taken any action and
shall not take any other action during the Support Period, that would conflict with, restrict, limit, violate, frustrate the intent of
or interfere with the performance of such Stockholder’s representations, warranties, covenants and obligations hereunder, (y) he,
she or it shall not take any action during the Support Period that would reasonably be expected to restrict or otherwise adversely affect
such Stockholder’s legal power, authority or right to comply with or perform its covenants or obligations under this Agreement,
and (z) except as expressly set forth herein or with respect to routine matters at an annual meeting of the Liberty Stockholders,
he, she or it has not granted, and shall not grant during the Support Period, any proxy, consent or power of attorney with respect to
any Shares.
(e) In
furtherance and not in limitation of the foregoing, but only in the event and in each case that a Stockholder fails to be counted as present
or fails to vote all of such Stockholder’s Shares in accordance with this Agreement, until the Expiration Date, each Stockholder
hereby appoints each of Eddy W. Hartenstein and James P. Holden as its proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent (and to instruct nominees or record holders to vote or act by written consent) during
the Support Period with respect to any and all of such Stockholder’s Shares in accordance with this Section 3; provided,
however, that if at any time during the Support Period there occurs a Change of Recommendation Event, then the irrevocable proxy
contemplated by this Section 3(e) shall terminate and cease to be effective with respect to all Shares other than Covered Shares.
This proxy and power of attorney are given to secure the performance of the duties of such Stockholder under this Agreement. Each Stockholder
hereby agrees that this proxy and power of attorney granted by each such Stockholder shall be irrevocable during the term of this Agreement,
shall be deemed to be coupled with an interest sufficient under applicable Law to support an irrevocable proxy and shall revoke any and
all prior proxies granted by such Stockholder with respect to any Shares regarding the matters set forth in this Section 3.
The power of attorney granted by each Stockholder herein is a durable power of attorney and shall survive the bankruptcy, death or incapacity
of such Stockholder.
4. Non-Solicitation.
Each Stockholder hereby agrees, and agrees to cause his, her or its controlled Affiliates (which, for the avoidance of doubt, does not
include Liberty, Merger Sub, SplitCo or SiriusXM) and its and their Representatives not to, take any action which, were it taken by Liberty,
SplitCo or SiriusXM or any of their Representatives, would violate Section 6.4 or Section 6.5 of the Merger Agreement, it being
understood that any action in compliance with Section 6.4 or Section 6.5 of the Merger Agreement shall not be deemed a breach
by any Stockholder of this Section 4.
5. Transfer
Restrictions Prior to the Merger. Each Stockholder hereby agrees that he, she or it will not, during the Support Period, without
the prior written consent of Liberty and SiriusXM (through the Special Committee), other than pursuant to the Merger Agreement or Reorganization
Agreement, directly or indirectly, offer for sale, sell, transfer, exchange, convert, assign, give, tender in any tender or exchange offer,
pledge, encumber, hypothecate or otherwise dispose of (by merger, by testamentary disposition, by operation of law or otherwise), either
voluntarily or involuntarily, enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of, enter into any contract, option or other arrangement or understanding with respect to the sale, transfer,
assignment, pledge, encumbrance, hypothecation or other disposition of (by merger, by testamentary disposition, by operation of law or
otherwise) or otherwise convey or dispose of, any of the Shares, or any interest therein (including by merger, by testamentary disposition,
by operation of law or otherwise), including the right to vote any such Shares, as applicable (a “Transfer”); provided,
that such Stockholder may Transfer Shares for estate-planning purposes (including by testamentary disposition), or to a controlled Affiliate
or with respect to a trust over which such Stockholder has sole or shared investment power, to a named beneficiary, so long as the transferee,
prior to the time of Transfer, agrees in a signed writing reasonably satisfactory to Liberty and SiriusXM (through the Special Committee)
to be bound by and comply with the provisions of this Agreement, and such Stockholder provides at least five (5) Business Days’
prior written notice (which shall include the written consent of the transferee agreeing to be bound by and comply with the provisions
of this Agreement) to Liberty and SiriusXM, in which case such Stockholder shall remain responsible for any breach of this Agreement by
such transferee, and provided, further, that the death of a Stockholder shall itself not be a Transfer of Shares so long
as a Stockholder, or a controlled Affiliate of a Stockholder, continues to own such Shares as Shares covered under this Agreement and
such controlled Affiliate agrees in a signed writing reasonably satisfactory to Liberty and SiriusXM (through the Special Committee) to
be bound by and comply with the provisions of this Agreement. Notwithstanding anything contained herein, each Stockholder will be permitted
to (i) effect a bona fide pledge of Series A Liberty Sirius XM Common Stock (including any existing pledge) to any financial
institution in connection with a bona fide financing transaction (a “Permitted Pledge”) (so long as such pledge does
not prevent or otherwise restrict in any manner such Stockholder from voting such shares pursuant to the provisions of this Agreement
prior to any default and foreclosure under the indebtedness underlying such pledge) and (ii) grant a revocable proxy with respect
to routine matters at an annual meeting of the holders of Liberty SiriusXM Common Stock (provided such proxy does not apply with respect
to any of the matters set forth in this Agreement, even if such matters are submitted to a vote at an annual meeting of the stockholders
of Liberty). Any Transfer in violation of this provision shall be void ab initio.
6. Representations
of the Stockholders. Each Stockholder represents and warrants to Liberty and SiriusXM as follows: (a) the Stockholder has
full legal right, capacity and authority to execute and deliver this Agreement, to perform the Stockholder’s obligations hereunder
and to consummate the transactions contemplated hereby; (b) this Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and legally binding agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement by the Stockholder or the performance
of his, her or its obligations hereunder; (c) the execution and delivery of this Agreement by the Stockholder do not, and the consummation
of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any law applicable
to such Stockholder or result in any breach of or violation of, or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a Lien or transfer restriction on any of the Shares pursuant to, any agreement or other instrument or obligation binding
upon the Stockholder or any of the Shares, nor require any authorization, consent or approval of, or filing with, any Governmental Authority
other than pursuant to the Exchange Act, the Securities Act and the HSR Act; (d) the Stockholder Beneficially Owns and has the power
to vote or direct the voting of, the Stockholder’s Shares, a complete and accurate schedule as of the date hereof of which is set
forth opposite such Stockholder’s name on Schedule A; (e) the Stockholder Beneficially Owns the Stockholder’s
Shares, free and clear of any proxy, voting restriction, adverse claim or other Lien or transfer restriction (other than any Permitted
Pledge or any restrictions created by the Transaction Agreements or under applicable federal or state securities laws); and (f) the
Stockholder or his, her or its advisers has read and is familiar with the terms of the Merger Agreement and the other Transaction Agreements
and the Stockholder understands and acknowledges that Liberty, SplitCo and SiriusXM are entering into the Merger Agreement in reliance
upon the Stockholder’s execution and delivery of this Agreement.
7. Representations
of Liberty and SiriusXM.
(a) Liberty
represents and warrants to each Stockholder as follows: (1) Liberty has full legal right, capacity and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (2) this Agreement has
been duly and validly executed and delivered by Liberty and constitutes a valid and legally binding agreement of Liberty, enforceable
against Liberty in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement
by Liberty or the performance of its obligations hereunder; (3) the execution and delivery of this Agreement by Liberty does not,
and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or
violate any law applicable to Liberty or result in any breach of or violation of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any property of Liberty pursuant to, any agreement or other instrument or obligation binding
upon Liberty or any of its property, nor require any authorization, consent or approval of, or filing with, any Governmental Authority
other than with the FCC or pursuant to the Exchange Act, the Securities Act or the HSR Act.
(b) SiriusXM
represents and warrants to each Stockholder as follows: (1) SiriusXM has full legal right, capacity and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (2) this Agreement
has been duly and validly executed and delivered by SiriusXM and constitutes a valid and legally binding agreement of SiriusXM, enforceable
against SiriusXM in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement
by SiriusXM or the performance of its obligations hereunder; (3) the execution and delivery of this Agreement by SiriusXM does not,
and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or
violate any law applicable to SiriusXM or result in any breach of or violation of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any property of SiriusXM pursuant to, any agreement or other instrument or obligation binding
upon SiriusXM or any of its property, nor require any authorization, consent or approval of, or filing with, any Governmental Authority
other than with the FCC or pursuant to the Exchange Act, the Securities Act or the HSR Act.
8. Adjustments.
In the event of a stock split, stock dividend or distribution, or any change in the shares of capital stock of Liberty by reason of any
split-up, reverse stock split, recapitalization, combination, reclassification, reincorporation, exchange of shares or the like, the terms
“Series A Liberty SiriusXM Common Stock”, “Series B Liberty SiriusXM Common Stock” and “Shares”
shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which
or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
9. Antitrust
Filings. Liberty, SplitCo and each Stockholder shall make an appropriate filing, if necessary, pursuant to the HSR Act with respect
to the Transactions as promptly as practicable after the date of this Agreement and shall supply as promptly as practicable to the appropriate
Governmental Authorities any additional information and documentary material that may be reasonably requested pursuant to the HSR Act.
Prior to making any application to or filing with any Governmental Authority in connection with the transactions contemplated by or related
to the Merger Agreement, each party hereto will provide the other party with any information or documents that the other party may reasonably
require to prepare any such filing or application.
10. Publicity.
Each Stockholder hereby authorizes Liberty and SiriusXM to publish and disclose in any documents and schedules filed with the SEC, and
any press release or other disclosure document that Liberty or SiriusXM determines to be necessary or desirable in connection with this
Agreement, the other Transaction Agreements or the transactions contemplated hereby or thereby (including in the Form S-4 or any
other filing with any Governmental Authority made in connection with the Merger) such Stockholder’s identity and ownership of the
Shares, this Agreement and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement and
such other information required in connection with such disclosure. Each Stockholder agrees to notify Liberty and SiriusXM as promptly
as practicable of any inaccuracies or omissions in any information relating to the Stockholders that is so published or disclosed. Each
Stockholder shall not be permitted to make any public statement regarding this Agreement, the Merger Agreement, the Reorganization Agreement
or the Transactions without the prior written consent of Liberty and SiriusXM (through the Special Committee); provided, that the
foregoing shall not restrict any Stockholder from making any disclosure or other public statement required to be made by such Stockholder
under applicable Law, including any amendment filed with the SEC on Schedule 13D, so long as such Stockholder provides Liberty and SiriusXM
(through the Special Committee) with reasonable prior notice (including reasonable opportunity to review and comment) on such disclosure.
11. Entire
Agreement. This Agreement (including the schedules hereto), the Merger Agreement and the Reorganization Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any person not a party to this Agreement any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement. Liberty acknowledges and agrees that, except as expressly provided herein, nothing in this Agreement shall
be deemed to vest in Liberty any direct or indirect ownership or incidence of ownership of or with respect to any Shares.
12. Indemnification.
(a) Each
of SiriusXM and SplitCo, jointly and severally, (the “Indemnifying Party”) covenants and agrees, on the terms and subject
to the limitations set forth in this Agreement, to indemnify and hold harmless each Stockholder (and each of his or her respective successors
and assigns), in each case in his or her capacity as a stockholder of voting securities of the Liberty SiriusXM tracking stock group (each
in such capacity, an “Indemnified Party”), from and against any and all Losses (as defined below) incurred in connection
with, arising out of or resulting from any claims, demands, actions, proceedings or investigations (each, an “Action”
and collectively, “Actions”) arising out of this Agreement or the performance of such Indemnified Party hereunder (including
any Actions brought by any of the stockholders, directors, officers or employees of SplitCo or SiriusXM). For purposes of this Section 12,
“Losses” means any loss (including disgorgement of consideration), liability, cost, damage or expense (including, without
duplication, reasonable fees and expenses of counsel, accountants, consultants and other experts) related to an Action for which an Indemnified
Party is entitled to indemnification pursuant to this Agreement; provided, however, that any diminution in value of SiriusXM
Common Stock, Liberty SiriusXM Common Stock, or SplitCo Common Stock shall not constitute a Loss.
(b) Notwithstanding
anything herein to the contrary, the Indemnifying Party will not be obligated to provide indemnity hereunder to any Indemnified Party
with respect to any Losses which (x) result from such Indemnified Party’s fraud, bad faith, willful misconduct or gross negligence
or (y) result from any breach of any representation and warranty of such Indemnified Party contained in this Agreement or any breach
of any covenant or agreement made or to be performed by such Indemnified Party under this Agreement.
(c) The
Indemnifying Party will indemnify the Indemnified Parties pursuant to this Section 12 regardless of whether such Losses are
incurred prior to or after the Merger Effective Time. The indemnification provided pursuant to this Section 12 is in addition
to, and not in derogation of, any other rights an Indemnified Party may have under applicable law, the Liberty Charter Documents, the
SiriusXM Charter Documents, or pursuant to any contract, agreement or arrangement (including, for the avoidance of doubt, under the Merger
Agreement); provided, however, that Losses will not be duplicated. If an Indemnified Party receives an indemnification payment
pursuant to this Agreement and later receives insurance proceeds or other third-party recovery proceeds in respect of the related Losses,
then the Indemnified Party shall promptly remit to the Indemnifying Party, amounts equal to the lesser of (x) the amount of such
insurance proceeds or other third-party recovery proceeds, if any, and (y) the amount of the indemnification payment previously paid
by or on behalf of the Indemnifying Party with respect to such Losses.
(d) Promptly
after the receipt by any Indemnified Party of notice with respect to any Action that is or may be subject to indemnification hereunder
(each, an “Indemnifiable Claim”) (and in no event more than ten (10) Business Days after such event), such Indemnified
Party shall give written notice thereof to the Indemnifying Party, which notice will include, to the extent known, the basis for such
Indemnifiable Claim and copies of any pleadings or written demands relating to such Indemnifiable Claim and, promptly following request
therefor, shall provide any additional information in respect thereof that the Indemnifying Party may reasonably request; provided,
that (x) any delay in giving or failure to give such notice will not affect the obligations of the Indemnifying Party hereunder except
to the extent the Indemnifying Party is actually prejudiced as a result of such delay in or failure to notify and (y) no such notice
shall be required to be given to the Indemnifying Party to the extent that the Indemnifying Party or any of its respective Affiliates
is a party to any such Indemnifiable Claim.
(e) Subject
to Section 12(f) and Section 12(g), the Indemnifying Party shall be entitled to exercise full control of
the defense, compromise or settlement of any Indemnifiable Claim in respect of an Action commenced or made by a Person who is not a party
to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Indemnifiable Claim”) so long as, within
ten (10) Business Days after the receipt of notice of such Third Party Indemnifiable Claim from the Indemnified Party (pursuant to
Section 12(d)), the Indemnifying Party: (x) delivers a written confirmation to such Indemnified Party that the indemnification
provisions of Section 12 are applicable, subject only to the limitations set forth in this Agreement, to such Third Party
Indemnifiable Claim and that the Indemnifying Party will indemnify such Indemnified Party in respect of such Third Party Indemnifiable
Claim to the extent required by this Section 12, and (y) notifies such Indemnified Party in writing that the Indemnifying
Party will assume the control of the defense thereof. Following notification to such Indemnified Party of the assumption of the defense
of such Third Party Indemnifiable Claim, the Indemnifying Party shall retain legal counsel reasonably satisfactory to such Indemnified
Party to conduct the defense of such Third Party Indemnifiable Claim. If the Indemnifying Party so assumes the defense of any such Third
Party Indemnifiable Claim in accordance herewith, subject to the provisions of subsections (d) through (f) of this Section 12,
(A) the Indemnifying Party shall be entitled to exercise full control of the defense, compromise or settlement of such Third Party
Indemnifiable Claim and such Indemnified Party shall cooperate (subject to the Indemnifying Party’s agreement to reimburse such
Indemnified Party for all documented reasonable out-of-pocket expenses incurred by such Indemnified Party in connection with such cooperation)
with the Indemnifying Party in any manner that the Indemnifying Party reasonably may request in connection with the defense, compromise
or settlement thereof (subject to the last sentence of this Section 12(e)), and (B) such Indemnified Party shall have
the right to employ separate counsel selected by such Indemnified Party and to participate in (but not control) the defense, compromise
or settlement thereof and the Indemnifying Party shall pay the reasonable fees and expenses of one such separate counsel, and, if reasonably
necessary, one local counsel. No Indemnified Party shall settle or compromise or consent to entry of any judgment with respect to any
such Action (or part thereof) for which it is entitled to indemnification and to which the Indemnifying Party has provided the written
confirmation specified in clause (x) above without the prior written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld, delayed or conditioned). Without the prior written consent of each of the Indemnified Parties who are named in
the Action subject to the Third Party Indemnifiable Claim (which consent shall not be unreasonably withheld, delayed or conditioned),
the Indemnifying Party will not settle or compromise or consent to the entry of judgment with respect to any Indemnifiable Claim (or part
thereof) unless such settlement, compromise or consent (x) includes an unconditional release of such Indemnified Parties, (y) does
not include any admission of wrongdoing on the part of such Indemnified Parties and (z) does not enjoin or restrict in any way the
future actions or conduct of such Indemnified Parties (other than in a manner consistent with the terms of the subject instruments).
(f) Notwithstanding
Section 12(e), an Indemnified Party, at the expense of the Indemnifying Party (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel in each applicable jurisdiction)
representing the Indemnified Party), shall, subject to the last sentence of this Section 12(f), be entitled to separately
control the defense, compromise or settlement of any Third Party Indemnifiable Claim (x) as to such Indemnified Party if the Indemnified
Party with the opinion of external counsel shall have reasonably concluded that there exists any actual conflict of interest relating
to the defense of such Action between the Indemnified Party and the Indemnifying Party and (y) as to which the Indemnifying Party
has previously assumed control in the event the Indemnifying Party is not diligently pursuing such defense. No Indemnified Party shall
settle or compromise or consent to entry of any judgment with respect to any Action with respect to which it controls the defense thereof
pursuant to this Section 12(f) and for which it is entitled to indemnification without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(g) In
all instances under this Section 12 where the Indemnifying Party has agreed to pay the fees, costs and expenses of the Indemnified
Parties, such fees, costs and expenses shall be reasonable. The parties agree to cooperate and coordinate in connection with the defense,
compromise or settlement of any Indemnifiable Claims.
(h) In
addition to (but without duplication of) the Indemnified Party’s right to indemnification as set forth in this Section 12,
if so requested by an Indemnified Party, the Indemnifying Party shall also advance to such Indemnified Party (within ten (10) Business
Days of such request) any and all documented reasonable out-of-pocket fees, costs and expenses incurred by an Indemnified Party in accordance
with this Section 12 in connection with investigating, defending, being a witness in or participating in (including any appeal),
or preparing to defend, be a witness in or participate in, any Indemnifiable Claim (other than an Indemnifiable Claim initiated by the
Indemnified Party or in which SiriusXM or Liberty alleges a breach by the Indemnified Party of any representation and warranty of such
Indemnified Party contained in this Agreement or any breach of any covenant or agreement made or to be performed by such Indemnified Party
under this Agreement), including, without duplication, reasonable fees and expenses of legal counsel, accountants, consultants and other
experts (“Expense Advances”).
(i) Each
Stockholder agrees that he or she will repay Expense Advances made to him or her (or paid on his or her behalf) by the Indemnifying Party
pursuant to this Section 12 if it is ultimately finally determined by a court of competent jurisdiction that he or she is
not entitled to be indemnified pursuant to this Section 12.
13. Assignment.
Except as provided in Section 5 of this Agreement, neither this Agreement nor any of the rights or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent of the other parties. Any attempted assignment in violation
of this Section 13 shall be null and void ab initio. Subject to the preceding two sentences, this Agreement will be
binding upon, inure to the benefit of and be enforceable by, the parties and their respective successors and assigns and, in the event
of a Stockholder’s death, such Stockholder’s heirs, executors, administrators, testamentary trustees, legatees or beneficiaries.
14. Stockholder
Capacity. Notwithstanding anything to the contrary in this Agreement, each Stockholder is entering into this Agreement solely
in such Stockholder’s capacity as the Beneficial Owner of its Shares, and nothing herein is intended to or shall limit, affect or
restrict any actions taken (or any failures to act) by a Stockholder in the Stockholder’s capacity as a director or officer of Liberty,
SplitCo, or SiriusXM. The taking of any actions (or any failures to act) by the Stockholder (including voting on matters put to the board
of directors of Liberty, SplitCo, or SiriusXM or any committee thereof, influencing officers, employees, agents, management or the other
directors of Liberty or SiriusXM, and taking any action or making any statement at any meeting of such board or any committee thereof)
solely in the Stockholder’s capacity as a director of Liberty, SplitCo, or SiriusXM shall not be deemed to constitute a breach of
this Agreement, regardless of the circumstances related thereto.
15. Further
Assurances. Each party hereto agrees, from time to time, at the reasonable request of any other party hereto and without further
consideration, to execute and deliver such additional consents, documents and other instruments and to take such further actions as are
reasonably requested to effectuate the rights and obligations set forth in this Agreement.
16. Remedies/Specific
Enforcement. Each of the parties hereto agrees that this Agreement is intended to be legally binding and specifically enforceable
pursuant to its terms and that the other parties would be irreparably harmed if any of the provisions of this Agreement are not performed
in accordance with its specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the event
of any breach or threatened breach by any party hereto of any covenant or obligation contained in this Agreement, in addition to any other
remedy to which the other parties may be entitled (whether at law or in equity), the other parties shall be entitled to injunctive relief
to prevent breaches or threatened breaches of this Agreement and to specifically enforce the terms and provisions hereof, and each party
hereto hereby waives any defense in any action for specific performance or an injunction or other equitable relief, that a remedy at law
would be adequate. Each party hereto further agrees that no party or any other person or entity shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph, and each
party hereto irrevocably waives any right he, she or it may have to require the obtaining, furnishing or posting of any such bond or similar
instrument.
17. Governing
Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the principles of conflicts of law. The parties hereto hereby irrevocably submit to the jurisdiction of the Delaware
Court of Chancery or, in the event (but only in the event) that such court does not have subject matter jurisdiction over such action
or proceeding, of the United States District Court for the District of Delaware in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the matters contemplated hereby, and
hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or
of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable
in the Delaware Court of Chancery, or in the event (but only in the event) that such court does not have subject matter jurisdiction over
such action or proceeding, in the United States District Court for the District of Delaware, or that this Agreement or any such document
may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined exclusively in the Delaware Court of Chancery, or in the event (but only in the event) that such court does
not have subject matter jurisdiction over such action or proceeding, in the United States District Court for the District of Delaware.
The parties hereto hereby consent to and grant the Delaware Court of Chancery, or in the event (but only in the event) that such court
does not have subject matter jurisdiction over such action or proceeding, the United States District Court for the District of Delaware,
jurisdiction over the person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or proceeding in the manner provided herein or in such other manner
as may be permitted by Law shall be valid and sufficient service thereof.
18. Notice.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) on
the date of delivery if delivered personally or sent via e-mail or (b) on the first (1st) Business Day following the date of dispatch
if sent by a nationally recognized overnight courier (providing proof of delivery), in each case to the parties hereto at the following
addresses (or at such other address for a party as shall be specified by like notice):
If to Liberty:
Liberty Media Corporation
12300 Liberty Boulevard
Englewood, CO 80112
Attention: Chief Legal Officer
E-Mail: [Separately provided]
With a copy to:
O’Melveny & Myers L.L.P.
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Attention: C. Brophy Christensen
Bradley L. Finkelstein
Noah Kornblith
E-mail: bchristensen@omm.com
bfinkelstein@omm.com
nkornblith@omm.com
If to SiriusXM:
Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: Patrick Donnelly
E-Mail:
[Separately provided]
with a copy to (which shall not constitute notice):
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: Eric Swedenburg, Esq.
Johanna Mayer, Esq.
E-Mail: eric.swedenburg@stblaw.com
Johanna.mayer@stblaw.com
If to the Special Committee:
Eddy W. Hartenstein
Lead Independent Director
c/o Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: General Counsel
E-Mail: [Separately provided]
and with a copy to (which shall not constitute notice):
Debevoise & Plimpton LLP
66 Hudson Boulevard
New York, New York 10001
Attention: Michael A. Diz
William D. Regner
Katherine Durnan Taylor
E-Mail: madiz@debevoise.com
wdregner@debevoise.com
ketaylor@debevoise.com
If to the Stockholders:
John C. Malone
c/o Marty Flessner
12300 Liberty Boulevard, 2nd Floor
Englewood, CO 80112
E-Mail: [Separately provided]
With a copy (which shall not constitute notice) to:
Steven D. Miller
Address: [Separately provided]
E-Mail: [Separately provided]
or such other address, email address or facsimile number as such party
may hereafter specify by like notice to the other parties hereto.
19. Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law. In the event that any provision of this Agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of this Agreement will continue in full
force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the parties hereto.
Upon such determination that any term or other provision is invalid, illegal, void or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled
to the greatest extent possible.
20. Amendments;
Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and
signed (a) in the case of an amendment, by Liberty, SiriusXM and each Stockholder, and (b) in the case of a waiver, by the party
against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
21. Waiver
of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY BE IN CONNECTION WITH, ARISE OUT OF OR OTHERWISE
RELATE TO THIS AGREEMENT OR ANY INSTRUMENT OR OTHER DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THE MERGER AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING
DIRECTLY OR INDIRECTLY, IN CONNECTION WITH, ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT, ANY INSTRUMENT OR OTHER DOCUMENT
DELIVERED PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT. EACH PARTY HEREBY ACKNOWLEDGES AND CERTIFIES
(I) THAT NO REPRESENTATIVE OF THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN
THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) HE, SHE OR IT (AS APPLICABLE) UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF THIS WAIVER, (III) HE, SHE OR IT (AS APPLICABLE) MAKES THIS WAIVER VOLUNTARILY AND (IV) HE, SHE OR IT (AS
APPLICABLE) HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, ACKNOWLEDGMENTS AND CERTIFICATIONS
CONTAINED IN THIS SECTION 21.
22. Counterparts.
The parties may execute this Agreement in one or more counterparts, including by facsimile or other electronic signature. All the counterparts
will be construed together and will constitute one Agreement.
23. Action
by SiriusXM. Actions taken under this Agreement on behalf of SiriusXM will be taken only with the approval of the Special Committee.
24. Interpretation.
When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. When this Agreement contemplates a certain number of securities, as of a particular date,
such number of securities shall be deemed to be appropriately adjusted to account for stock splits, dividends, recapitalizations, combinations
of shares or other changes affecting the such securities.
25. Expenses.
The Indemnifying Party shall pay the reasonable out-of-pocket costs and expenses incurred by each of the Stockholders in connection with
the preparation, negotiation, execution and delivery of this Agreement, including the reasonable fees, charges and disbursements of advisors,
representatives and counsel for the Stockholders in connection therewith (the “Voting Agreement Fees”), and any required
filing fee in connection with the filings made on behalf of the Stockholders described in this Agreement and the Merger Agreement; provided,
however, that the amount of costs and expenses payable in the aggregate for the Voting Agreement Fees shall not exceed $150,000.
Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense.
26. No
Additional Representations. Except for the representations and warranties expressly made in this Agreement, each party hereto
hereby agrees that no other party hereto makes, and each party hereto disclaims any reliance upon, any express or implied representation
or warranty whatsoever with respect to the matters set forth in this Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties and is effective as of the date first set forth above.
|
LIBERTY MEDIA CORPORATION |
|
|
|
|
|
|
|
By: |
/s/ Renee L. Wilm |
|
Name: |
Renee L. Wilm |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
|
|
|
|
|
|
|
SIRIUS XM HOLDINGS INC. |
|
|
|
|
|
|
|
By: |
/s/ Patrick L. Donnelly |
|
Name: |
Patrick L. Donnelly |
|
Title: |
Executive Vice President, General Counsel and Secretary |
|
|
|
|
|
|
|
LIBERTY SIRIUS XM HOLDINGS INC. |
|
|
|
|
|
|
|
By: |
/s/ Renee L. Wilm |
|
Name: |
Renee L. Wilm |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
[Signature Page to Voting Agreement]
|
THE JOHN C. MALONE 1995 REVOCABLE TRUST |
|
|
|
|
|
|
|
By: |
/s/ John C. Malone |
|
Name: |
John C. Malone, Trustee |
|
|
|
|
|
|
|
THE LESLIE A. MALONE 1995 REVOCABLE TRUST |
|
|
|
|
|
|
|
By: |
/s/ John C. Malone |
|
Name: |
John C. Malone, Trustee |
|
|
|
|
|
|
|
THE MALONE FAMILY LAND PRESERVATION FOUNDATION |
|
|
|
|
|
|
|
By: |
/s/ John C. Malone |
|
Name: |
John C. Malone, President |
|
|
|
|
|
|
|
JOHN C. MALONE JUNE 2003 CHARITABLE REMAINDER UNITRUST |
|
|
|
|
|
|
|
By: |
/s/ John C. Malone |
|
Name: |
John C. Malone, Trustee |
[Signature Page to Voting Agreement]
SCHEDULE A
Stockholder Information
Stockholder | |
Series A Liberty SiriusXM Common Stock | | |
Series B Liberty SiriusXM Common Stock | |
The John C. Malone 1995 Revocable Trust | |
| 612,907 | | |
| 8,681,015 | |
The Leslie A. Malone 1995 Revocable Trust | |
| 101,778 | | |
| 286,086 | |
The Malone Family Land Preservation Foundation | |
| 250,000 | | |
| 0 | |
John C. Malone June 2003 Charitable Remainder Unitrust | |
| 0 | | |
| 379,553 | |
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