UPDATE 3-"Shock jock" Stern lawsuit vs Sirius XM thrown out
* Judge says Stern bound by language in contract
* Stern, agent could have recovered $330 million more
By Jonathan Stempel and Karen Freifeld
April 17 (Reuters) - A judge has dismissed radio personality Howard Stern's $330 million lawsuit accusing Sirius XM Radio Inc of failing to pay him stock awards he was due for helping the dominant U.S. satellite radio company exceed growth targets.
New York State Supreme Court Justice Barbara Kapnick in Manhattan said Stern and his agent Don Buchwald were bound by the language of the 2004 agreement that brought the now 58-year-old "shock jock" to what became Sirius XM from traditional radio.
The case centered on whether to count subscribers of the former XM Satellite Radio Inc, which Sirius bought in 2008, to help determine performance-based awards for Stern's production company, One Twelve Inc, and fees for Buchwald. Kapnick agreed with Sirius that XM subscribers should not be counted.
"While it may be true that Stern and Buchwald hoped and expected to reap the benefits from any significant growth that Sirius experienced after they entered into the agreement, that subjective expectation cannot suffice to override the clear, unambiguous language of the agreement," Kapnick wrote.
The judge dismissed the lawsuit with prejudice, meaning Stern cannot bring it again. Kapnick issued her decision on Monday.
Seth Rothman, a lawyer who represents Stern, did not respond to requests for comment.
A message posted on the Twitter feed for "The Howard Stern Show" said: "Howard is really bummed that a judge has dismissed his lawsuit against Sirius. He plans on appealing."
Patrick Reilly, a Sirius spokesman, declined to comment.
Sirius ended 2011 with 21.9 million subscribers, up from 3.3 million at the end of 2005, when the New York-based company was known as Sirius Satellite Radio Inc.
Stern moved his radio show to Sirius on Jan. 9, 2006. He renewed his contract for five years in December 2010, only to file his lawsuit three months later.
According to the lawsuit, Stern's presence helped Sirius exceed subscriber targets by at least 2 million in each of several years beginning in 2006, triggering a new stock award every time.
Sirius awarded $75 million to One Twelve and $7.5 million to Buchwald after the first year.
Kapnick said the company could have owed One Twelve another $300 million and Buchwald another $30 million had all the performance awards been triggered.
She noted, however, that the only contractual provision that even mentioned XM or a potential merger called for Sirius to pay $25 million to One Twelve and $2.5 million to Buchwald if the XM merger took place. These payments were made, she said.
Last month, Sirius asked the Federal Communications Commission to reject an application by John Malone's Liberty Media Corp for 'de facto' control of Sirius. Malone is Sirius' largest shareholder, with preferred stock convertible into a 40 percent stake, but does not exercise full control.
Sirius shares closed up 7 cents, or 3.2 percent, at $2.24 on the Nasdaq.
The case is One Twelve Inc et al v. Sirius XM Radio Inc, New York State Supreme Court, New York County, No. 650762/2011.
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