DATE IS PRIOR TO THE ISSUANCE OF SUCH CERTIFICATE OR CERTIFICATES.
9.
EMPLOYMENT.
NEITHER THE GRANTING OF THE OPTION EVIDENCED BY THIS
AGREEMENT NOR ANY TERM OR PROVISION OF THIS AGREEMENT SHALL CONSTITUTE OR BE
EVIDENCE OF ANY UNDERSTANDING, EXPRESS OR IMPLIED, ON THE PART OF XM TO EMPLOY
OR CONTINUE THE EMPLOYMENT OF THE OPTIONEE FOR ANY PERIOD.
WHENEVER REFERENCE
IS MADE IN THIS AGREEMENT TO THE EMPLOYMENT OF THE OPTIONEE, IT MEANS EMPLOYMENT
BY XM OR ITS AFFILIATES.
10.
SUBJECT TO THE PLAN.
THE OPTION EVIDENCED BY THIS AGREEMENT AND THE
EXERCISE OF THE OPTION ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE PLAN,
WHICH ARE INCORPORATED HEREIN BY REFERENCE AND MADE A PART HEREOF, BUT THE TERMS
OF THE PLAN SHALL NOT BE CONSIDERED AN ENLARGEMENT OF ANY BENEFITS UNDER THIS
AGREEMENT.
IN ADDITION, THE OPTION IS SUBJECT TO ANY RULES AND REGULATIONS
PROMULGATED BY THE COMMITTEE.
11.
FRACTIONAL SHARES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, FOLLOWING A PUBLIC OFFERING, AWARD EXERCISES AND ISSUANCES INVOLVING
THE ISSUANCE OF SHARES MAY ONLY BE EFFECTED IN WHOLE (AND NOT FRACTIONAL)
SHARES.
12.
APPLICABLE LAW.
THIS AGREEMENT SHALL BE SUBJECT TO THE LAWS OF THE STATE
OF DELAWARE, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
13.
ENTIRE AGREEMENT.
THIS AGREEMENT IS IN LIEU OF AND SUPERSEDES ALL PRIOR
AGREEMENTS, REPRESENTATIONS, NEGOTIATIONS, OR OTHER UNDERSTANDINGS OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
IT MAY NOT BE AMENDED OR
ALTERED EXCEPT IN A WRITING SIGNED BY THE OPTIONEE AND THE AUTHORIZED
REPRESENTATIVES OF XM.
5
14.
WAIVER AND SEVERABILITY.
A.
THE WAIVER BY EITHER PARTY OF A BREACH OF
ANY PROVISION OF THIS AGREEMENT SHALL NOT OPERATE OR BE CONSTRUED AS A WAIVER OF
THE SAME OR ANY OTHER BREACH BY EITHER OF THE PARTIES TO THIS AGREEMENT, WHETHER
PRIOR OR SUBSEQUENT.
B.
IF ANY TERM OR PROVISION OF THIS
AGREEMENT IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE ILLEGAL,
INVALID, OR UNENFORCEABLE, THE LEGALITY, VALIDITY, OR ENFORCEABILITY OF THE
REMAINDER OF THIS AGREEMENT SHALL NOT THEREBY BE AFFECTED, AND THIS AGREEMENT
SHALL BE DEEMED TO BE AMENDED TO THE EXTENT NECESSARY TO DELETE SUCH PROVISION.
15.
HEADINGS.
THE SECTION, PARAGRAPH, AND SUBPARAGRAPH HEADINGS CONTAINED IN
THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY, AND SHALL NOT IN ANY WAY AFFECT
THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
6
"EXHIBIT A"
EXERCISE OF OPTION
Chairman, Board of Directors
XM Satellite Radio Holdings Inc.
1500 Eckington Place, N.E.
Washington, D.C.
20002-2194
To the Board:
The undersigned, the Optionee under the Non-Qualified Stock Option Agreement
identified as Option No.
, granted pursuant to the XM Satellite Radio
Holdings Inc. 1998 Share Award Plan, hereby irrevocably elects to exercise the
Option granted in the Agreement to purchase
shares of Class A Common
Stock of XM Satellite Radio Holdings Inc. ("XM"), par value $0.01 per share
("Shares"), and herewith makes payment of $
in the form of [cash,
Common Stock, cash plus Common Stock,