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EXHIBIT 4.6
WARRANT REGISTRATION RIGHTS AGREEMENT
March 15, 2000
By and Among
XM SATELLITE RADIO HOLDINGS INC.
and
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇▇▇▇ BROTHERS INC.
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WARRANT REGISTRATION RIGHTS AGREEMENT
THIS WARRANT REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of March 15, 2000, by and among XM Satellite Radio Holdings
Inc., a Delaware corporation (the "Holdings"), Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
and ▇▇▇▇▇▇ Brothers Inc. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated March
10, 2000, among Holdings, XM Satellite Radio Inc. (the "Company") and the
Initial Purchasers (the "Purchase Agreement"), relating to, among other things,
the sale by Holdings and the Company to the Initial Purchasers of an aggregate
of 325,000 Units, consisting in the aggregate of (i) $250,000,000 in aggregate
principal amount of 14% Senior Secured Notes due 2010 of the Company (the
"Senior Notes") and (ii) one Warrant (the "Warrants"), each representing the
right to purchase initially 8.024815 shares of Class A Common Stock, par value
$.01 per share, of Holdings (the "Common Stock"). The Warrants have been issued
pursuant to the Warrant Agreement dated as of the date hereof between the
Company and U.S. Trust Company of New York, as warrant agent (the "Warrant
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, Holdings has agreed to provide to the Initial Purchasers and
the Holders (as defined herein), among other things, the registration rights for
the Warrant Shares (as defined herein) set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Common Stock: The Class A common stock, $.01 par value, of the
Company.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Exchange Offer: As defined in the Registration Rights Agreement,
dated the Closing Date, among the Company and the Initial Purchasers.
Holders: As defined in Section 2 hereof.
Indenture: The Indenture, dated the Closing Date, among Holdings, the
Company, and U.S. Trust Company of New York, as trustee (the "Trustee"),
pursuant to which the Senior Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
Offering Memorandum: The Offering Memorandum of Holdings and the
Company dated March 10, 2000, relating to the Offering of the Units.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Registrable Securities: The Warrants, Warrant Shares and any other
securities issued or issuable with respect to the Warrants or the Warrant Shares
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided that a security ceases to be a Registrable Security when it is no
longer a Transfer Restricted Security.
Registration Expenses: As defined in Section 6 hereof.
Registration Statement: Any registration statement of Holdings which
covers Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration Statement.
Selling Holder: A Holder who is selling Registrable Securities
pursuant to Section 3 hereof.
Transfer Restricted Securities: A Warrant or Warrant Share, until
such Warrant or Warrant Share, as applicable, (i) has been effectively
registered under the Act and disposed of in accordance with the Registration
Statement covering it, (ii) is distributed to the public pursuant to Rule 144 or
(iii) may be sold or transferred pursuant to Rule 144(k) (or any similar
provisions then in force) under the Act or otherwise.
Warrants: The warrants of Holdings issued and sold pursuant to the
Purchase Agreement and the Warrant Agreement, together with any warrants issued
in substitution or replacement therefor.
Warrant Agreement: The Warrant Agreement dated the Closing Date by
and between Holdings and U.S. Trust Company of New York as Warrant Agent.
Warrant Shares: The Common Stock or other securities which any Holder
may acquire upon exercise of a Warrant, together with any other securities which
such Holder may acquire on account of any such securities, including, without
limitation, as the result of any dividend or other distribution on Common Stock
or any split-up of such Common Stock as provided for in the Warrant Agreement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Registrable Securities. The securities entitled to the benefits
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of this Agreement are the Registrable Securities.
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(b) Holders of Registrable Securities. A Person is deemed to be a
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Holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities, whether or
not such acquisition has actually been effected and disregarding any legal
restrictions upon the exercise of such right.
SECTION 3. SHELF REGISTRATION
(1) Holdings shall file within 90 days of the Closing Date, and use
its reasonable best efforts to be declared effective on or before 180 days after
the Closing Date, a "shelf" registration with respect to all Registrable
Securities on any appropriate form pursuant to Rule 415 (or similar rule that
may be adopted by the Commission) under the Act (the "Shelf Registration")
covering the resale of the Warrants and issuance of the Warrant Shares by
Holdings upon exercise of the Warrants. Notwithstanding the foregoing, Holdings
shall not be required to file such Shelf Registration on or prior to the
consummation of the Exchange Offer; provided that, in the event the Exchange
Offer is consummated later than the filing time required by the preceding
sentence for the Shelf Registration, Holdings shall file such Shelf Registration
within 30 days after the date of the consummation of the Exchange Offer.
(2) Holdings shall use its best efforts to keep the Shelf
Registration continuously effective until the earlier of (i) all of the
Registrable Securities ceasing to be Transfer Restricted Securities, or (ii)
April 1, 2010, and, to the extent that the Shelf Registration is kept not
effective for one or more days during such period, Holdings shall be required to
extend the effectiveness of the Shelf Registration for a like number of days
after the expiration of the such period (it being expressly acknowledged that
such extension of the required period of effectiveness is in addition to, and
not in lieu of, the payment of liquidated damages as provided in Section 4
hereof).
(3) Holdings further agrees to use its best efforts to prevent the
happening of any event that would cause any Registration Statement made pursuant
to Section 3 hereof to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities during the period
that such Registration Statement is required to be effective and usable.
(4) Each Holder of Registrable Securities whose Registrable
Securities are covered by a Registration Statement filed pursuant to this
Section 3 agrees, if requested by the managing underwriters in an underwritten
offering of Common Stock, not to effect any public sale or distribution of
securities of Holdings of the same class as any Securities included in such
Registration Statement, including a sale pursuant to Rule 144 under the Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 90-day period beginning on, the closing date of the
underwritten offering made pursuant to such Registration Statement, to the
extent timely notified in writing by Holdings or the managing underwriters;
provided that each Holder of Registrable Securities shall be subject to the
hold-back restrictions of this Section 3(6) only once during the term of this
Agreement.
The foregoing provisions shall not apply to any Holder of Registrable
Securities if such Holder is prevented by applicable statute or regulation from
entering into any such agreement; provided that any such Holder shall undertake,
in its request to participate in any such underwritten offering, not to effect
any public sale or distribution of any applicable class of Registrable
Securities commencing on the date of sale of such applicable class of
Registrable Securities unless it has provided 45 days prior written notice of
such sale or distribution to the underwriter or underwriters.
SECTION 4. HOLDER INFORMATION
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No Holder of Registrable Securities may include any of its
Registrable Securities in the Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to Holdings in writing such
information Holdings may reasonably request specified in Item 507 and Item 508
of Regulation S-K under the Act for use in connection with the Shelf
Registration Statement or Prospectus or Preliminary Prospectus included therein.
Each Holder agrees to furnish promptly to Holdings all information required to
be disclosed in order to make the information previously furnished to Holdings
by such Holder not materially misleading.
SECTION 5. BLACK OUT PERIOD
During any consecutive 365 day period, Holdings may suspend the
effectiveness of the Shelf Registration Statement for up to two consecutive 45-
day periods if there is a possible acquisition or business combination or other
transaction, business development or event involving Holdings that may require
disclosure in the Shelf Registration Statement and the Board of Directors of
Holdings determines in the exercise of its reasonable judgment that such
disclosure is not in the best interests of Holdings and its stockholders or
obtaining any financial statements relating to an acquisition or business
combination required to be included in the Shelf Registration Statement would be
impracticable. In such a case, Holdings shall promptly notify the Holders of
the suspension of the Shelf Registration Statement's effectiveness, provided
that such notice shall not require Holdings to disclose the possible acquisition
or business combination or other transaction, business development or event if
the Board of Directors of Holdings determines in good faith that such
acquisition or business combination or other transaction, business development
or event should remain confidential. Upon the abandonment, consummation, or
termination of the possible acquisition or business combination or other
transaction, business development or event, or the availability of the required
financial statements with respect to a possible acquisition or business
combination, the suspension of the use of the Shelf Registration Statement
pursuant to this Section 5 shall cease and Holdings shall promptly comply with
Section 7(a)(2) hereof and notify the Holders that disposition of Registrable
Securities may be resumed. Notwithstanding anything to the contrary in this
Agreement, however, Holdings may not suspend the effectiveness of the Shelf
Registration Statement or permit any such suspension to continue at any time
after 45 days before the expiration of the Warrants.
SECTION 6. LIQUIDATED DAMAGES
If the Registration Statement: (i) is not filed with the Commission
on or prior to the date specified for such filing in Section 3(1) hereof; (ii)
has not been declared effective by the Commission on or prior to the dated
specified for such effectiveness in Section 3(1) hereof; or (iii) following the
date such Registration Statement is declared effective by the Commission, shall
cease to be effective without being restored to effectiveness by amendment or
otherwise within 30 business days, other than as permitted by Section 5 hereof
(each such event referred to in clauses (i) through (iii), a "Shelf Registration
Default") to the extent permitted by applicable law, the Company shall pay as
liquidated damages and not as a penalty to each Holder during the first 90-day
period immediately following the occurrence, and during the continuance of such
Shelf Registration Default, an amount equal to $.025 per week per Warrant (or
per such number of Warrant Shares then issuable upon exercise of or in respect
of a Warrant) held by such Holder for each week or portion thereof that the
Shelf Registration Default continues. To the extent permitted by applicable
law, the amount of the liquidated damages will increase by an additional $.025
per week per Warrant (or per such number of Warrant Shares then issuable upon
exercise of or in respect of a Warrant) with respect to each subsequent 90-day
period until all Shelf Registration Defaults have been cured, up to a maximum
amount of liquidated damages of $.125 per week per Warrant (or per such number
of Warrant Shares then issuable upon exercise of or in respect of a Warrant).
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All accrued liquidated damages shall be paid to record Holders by
the Company by wire transfer of immediately available funds, or by mailing a
federal funds check, on each Interest Payment Date (as defined in the
Indenture). All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Registrable Security at the time such
security has been effectively registered under the Act shall survive until such
time as all such obligations with respect to such security have been satisfied
in full.
SECTION 7. REGISTRATION PROCEDURES
(a) General Provisions. In connection with Holdings' registration
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obligations pursuant to Section 3 hereof, Holdings will use its best efforts to
effect such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto Holdings will as expeditiously as possible, except to the
extent permitted by Section 5 hereof:
(1) use its best efforts to keep such Registration Statement
continuously effective for the 180-day period following the Commencement Date
and provide or incorporate by reference all requisite financial statements for
such period. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Registrable Securities during the period required by this Agreement,
Holdings shall, except to the extent permitted by Section 5 hereof, file
promptly an appropriate amendment to such Registration Statement or file
appropriate documents that will be so incorporated by reference, (1) in the case
of clause (A), correcting any such misstatement or omission, and (2) in the case
of either clause (A) or (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable thereafter;
(2) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the period set forth in Section 3(4),
cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act; and
comply in all material respects with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus; Holdings shall not be deemed to have used its best
efforts to keep a Registration Statement effective during the applicable period
if it voluntarily takes any action that would result in Holders of the
Registrable Securities covered thereby not being able to exercise their Warrants
or sell such Registrable Securities during that period unless such action is
required under applicable law, provided that the foregoing shall not apply to
actions taken by Holdings in good faith and for valid business reasons,
including without limitation the acquisition or divestiture of assets, so long
as Holdings promptly thereafter complies with the requirements of clause (14)
below, if applicable;
(3) advise Holders promptly and, if requested by such Persons,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same
has become effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of any event that
makes
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any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any additions to or
changes in the Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Registrable Securities under state securities or Blue Sky
laws, Holdings shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(4) make available to each Selling Holder named in any Registration
Statement or Prospectus in connection with such sale, if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement or
Prospectus;
(5) promptly upon the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus for any
resale of Warrant Shares, make available copies of such document to the Selling
Holders, make Holdings' representatives available for discussion of such
document and other customary due diligence matters, and include such information
in such document prior to the filing thereof as such Selling Holders or
underwriter(s), if any, reasonably may request;
(6) if requested by any Selling Holders in connection with any resale
of Warrant Shares, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities, information with respect to the
principal amount of Registrable Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after Holdings is notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(7) furnish to each Selling Holder in connection with a sale of
Warrant Shares, if any, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
and make available all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(8) deliver to each Selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; Holdings hereby consents to the use of the Prospectus
and any amendment or supplement thereto by each of the Selling Holders and each
of the underwriter(s), if any, in connection with the offering and the sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(9) enter into such agreements (including, unless not required
pursuant to Section 3 hereof, an underwriting agreement) and make such
representations and warranties and take all such other actions in connection
therewith that are reasonably necessary in order to expedite or facilitate the
disposition of the Registrable Securities pursuant to any Registration Statement
contemplated by this Agreement as may be reasonably requested by any Selling
Holder of Registrable Securities or underwriter in connection with any exercise,
sale or resale pursuant to any Registration Statement
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contemplated by this Agreement, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, Holdings shall:
(A) furnish to each Selling Holder upon the effectiveness of the
Registration Statement:
(i) a certificate, dated the date of effectiveness of the
Registration Statement, signed by (x) the President and (y) any Vice
President of Holdings, confirming, as of the date thereof, the matters
of the types set forth in paragraphs (a), (b), (c) and (d) of Section
8 of the Purchase Agreement and such other matters as the Holders
and/or underwriter(s) may reasonably request;
(ii) an opinion, dated the date of effectiveness of the
Registration Statement, of counsel for Holdings, covering (i) due
authorization and enforceability of the Warrants, (ii) a statement to
the effect that such counsel has participated in conferences with
officers and other representatives of Holdings and representatives of
the independent public accountants for Holdings and have considered
the matters required to be stated therein and the statements contained
therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that such
counsel advises that, on the basis of the foregoing (relying as to
materiality to a large extent upon facts provided to such counsel by
officers and other representatives of Holdings and without independent
check or verification), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any post-
effective amendment thereto became effective, and 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 not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (iii)
such other matters of the type customarily covered in opinions of
counsel for an issuer in connection with similar securities offerings,
as may reasonably be requested by such parties. Without limiting the
foregoing, such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and
schedules and other financial, statistical and accounting data
included in any Registration Statement contemplated by this Agreement
or the related Prospectus; and
(iii) a customary comfort letter, dated as of the date of
effectiveness of the Registration Statement, from Holdings'
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to Section
8(h) of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Registration Statement the indemnification provisions and
procedures of Section 9 hereof with respect to all parties to be
indemnified pursuant to said Section; and
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(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by Holdings pursuant to this
clause (9), if any.
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of Holdings contemplated in (A)(i) above
cease to be true and correct, Holdings shall so advise the underwriter(s), if
any, and Selling Holders promptly and if requested by such Persons, shall
confirm such advice in writing;
(10) prior to any public offering of Registrable Securities, cooperate
with the Holders, the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Registrable Securities
under the securities or Blue Sky laws of such jurisdictions as the Holders or
underwriter(s), if any, may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that where Registrable Securities are offered other than
through an underwritten offering, Holdings agrees to cause its counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(a)(10), keep each such
registration or qualification (or exemption therefrom) effective during the
period that the applicable Registration Statement is required to remain
effective under the terms of this Agreement and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the securities covered thereby; provided that Holdings shall not be required to
register or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(11) in connection with any sale or exercise of Registrable Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
to register such Registrable Securities in such denominations and such names as
the Holders or the underwriter(s), if any, may request at least two Business
Days prior to such sale of Registrable Securities;
(12) use its best efforts to cause the Registrable Securities covered
by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the Holder or
Holders thereof or the underwriter(s), if any, to consummate the exercise or
disposition of such Registrable Securities, subject to the proviso contained in
clause (10) above;
(13) if any fact or event contemplated by clause (3) above shall exist
or have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(14) provide a CUSIP number for all Registrable Securities not later
than the effective date of a Registration Statement covering such Registrable
Securities and provide the Trustee under the Indenture with printed certificates
for the Registrable Securities which are in a form eligible for deposit with the
Depository Trust Company;
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(15) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
its best efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be necessary to
enable the Holders selling Registrable Securities to consummate the disposition
of such Registrable Securities in accordance with the plan of distribution set
forth in such Registration Statement;
(16) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to any applicable Registration Statement, as soon
as practicable, a consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
(17) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or interdealer quotation
system on which similar securities issued by Holdings are then listed;
(18) provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act;
(19) cooperate with the Holders of Registrable Securities, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends whatsoever and shall be in a form eligible for deposit with
The Depository Trust Company ("DTC"); and enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably request at least
two business days prior to any sale of Registrable Securities in a firm
commitment underwritten public offering;
(20) cooperate with the Selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and
registered in such names as the Selling Holders may reasonably request at least
two business days prior to the closing of any sale of Registrable Securities.
(b) Restrictions on Holders. Each Holder agrees by acquisition of a
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Registrable Security that, upon receipt of any notice from Holdings of the
existence of any fact of the kind described in Section 7(a)(3)(D) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
7(a)(13) hereof, or until it is advised in writing (the "Advice") by Holdings
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by Holdings, each Holder will deliver to Holdings(at
Holdings' expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities that
was current at the time of receipt of such notice. In the event Holdings shall
give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 hereof, as applicable, shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 7(a)(3)(D) hereof to and including
the date when each Selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 7(a)(13) hereof or shall have received the Advice.
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SECTION 8. REGISTRATION EXPENSES
(a) All expenses incident to Holdings' performance of or compliance
with this Agreement ("Registration Expenses") will be borne by Holdings,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by any Holder with the NASD (and, if applicable, the reasonable
fees and expenses of any "qualified independent underwriter") and such Holder's
counsel, as may be required by the rules and regulations of the NASD); (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Registrable Securities in
a form eligible for deposit with the Depository Trust Company and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for Holdings and, subject to Section 9(b) below, the
reasonable fees and disbursements of counsel to the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Registrable Securities on a national exchange or automated quotation
system pursuant to the requirements hereof; and (vi) all fees and disbursements
of independent certified public accountants of Holdings (including the expenses
of any special audit and comfort letters required by or incident to such
performance); provided, however that Holdings shall not be required to pay any
underwriting discounts or commissions related to performance of, or compliance
with, this Agreement.
Holdings will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by
Holdings.
(b) In connection with each Registration Statement required
hereunder, Holdings will reimburse the Holders of Registrable Securities being
registered pursuant to such Registration Statement for the reasonable fees and
actual disbursements of not more than one counsel chosen by the Holders of a
majority of the principal amount of such Registrable Securities, or more than
one, if, in the reasonable judgment of counsel for the Holders and counsel for
Holdings, a conflict exists among such Holders. Notwithstanding the provisions
of this Section 8, each Holder of Registrable Securities shall pay all
registration expenses to the extent required by applicable law.
SECTION 9. INDEMNIFICATION
(a) Holdings agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments) (collectively, "Losses") caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by Holdings to any holder or any prospective
purchaser of Warrants or Warrant Shares, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
Losses are caused by an untrue statement or omission or alleged untrue statement
or omission that is based upon information relating to any of the Holders
furnished in writing to Holdings by any of the Holders. Notwithstanding the
foregoing,
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Holdings shall not be liable in any such case to the extent that any such Loss
arises out of, or is based upon, an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if (i) the
Selling Holder failed to send or deliver a copy of the Prospectus with or prior
to the delivery of written confirmation of the sale of Warrant Shares to the
person asserting such Loss or who purchased such Warrant Shares which are the
subject thereof and (ii) the Prospectus would have corrected such untrue
statement or omission or alleged untrue statement or alleged omission.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless Holdings, and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) Holdings to the same extent as
the foregoing indemnity from Holdings to each of the Indemnified Holders, but
only with reference to information relating to such Indemnified Holder furnished
in writing to Holdings by such Indemnified Holder expressly for use in any
Registration Statement. In no event shall any Indemnified Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Indemnified Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Indemnified Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Indemnified Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 9(a) or 9(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 9(a) and 9(b), an Indemnified Holder shall not
be required to assume the defense of such action pursuant to this Section 9(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Indemnified Holder). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised in writing by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by a majority of the Indemnified Holders, in
the case of the parties indemnified pursuant to Section 9(a), and by Holdings,
in the case of parties indemnified pursuant to Section 9(b). The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the
11
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 9 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by Holdings, on the
one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 9(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 9(d)(i) above but also the
relative fault of Holdings, on the one hand, and of the Indemnified Holder, on
the other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of Holdings, on the one
hand, and of the Indemnified Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Holdings, on the one hand, or by the
Indemnified Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and judgments referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 9(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
Holdings and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 9(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 9, no Holder or its
related Indemnified Holders shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total received by such Holder
with respect to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by such Holder for
such Transfer Restricted Securities plus (B) the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 7(d) are several in proportion to amount of Transfer Restricted
Securities held by each of the Holders hereunder and not joint.
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SECTION 10. RULE 144A
Holdings hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available, upon request of
any Holder of Registrable Securities, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A.
SECTION 11. MISCELLANEOUS
(a) Remedies. Each Holder of Registrable Securities, in addition to
---------
being entitled to exercise all rights provided herein, and as provided in the
Purchase Agreement and the Warrant Agreement and granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. Holdings agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and, to the extent not prohibited by applicable
law, hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Holdings will not on or after the
---------------------------
date of this Agreement enter into any agreement with respect to its securities
that conflicts with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. Except as
disclosed in the Offering Memorandum, Holdings has not previously entered into
any agreement granting any registration rights of its securities to any Person
except the Debt Registration Rights Agreement regarding the Senior Notes
executed concurrently herewith. The rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of Holdings' securities
under any other agreement in effect on the date hereof, except where a waiver
with respect thereto has been obtained prior to the date of effectiveness of any
Registration Statement required under this Agreement.
(c) Adjustments Affecting the Registrable Securities. Holdings will
-------------------------------------------------
not take any action, or permit any change to occur, with respect to the
Registrable Securities which would (i) adversely affect the ability of any of
the Holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement or (ii) materially
adversely affect the marketability of the Registrable Securities in any such
registration.
(d) Amendments and Waivers. The provisions of this Agreement,
-----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Holdings has obtained the written consent of Holders of
a majority of the outstanding Registrable Securities; provided, however, that
Section 6 and Section 11(d) may not be amended, modified or supplemented without
the written consent of each Holder (including any Person who was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement)
affected by any such amendment, modification or supplement. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by the Holders of at least a majority of the Registrable
Securities being sold.
(e) Notices. All notices and other communications provided for or
--------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier, or air courier
guaranteeing overnight delivery:
13
(1) if to a Holder, at the address set forth on the records of
the Warrant Agent under the Warrant Agreement, with a copy to the Warrant
Agent under the Warrant Agreement; and
(2) if to Holdings:
XM Satellite Radio Holdings Inc.
▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ / General Counsel
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
-----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities.
(g) Counterparts. This Agreement may be executed in any number of
-------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
---------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Holdings hereby
irrevocably and unconditionally: (i) submits itself and its property in any
legal action or proceeding relating to this Warrant Registration Rights
Agreement or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive jurisdiction of the courts of the State of New York and the
courts of the United States of America for the Southern District of New York,
and appellate courts thereof, and consents and agrees to such action or
proceeding being brought in such courts; and (ii) waives any objection that it
may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in any inconvenient
court and agrees not to plead or claim the same.
14
(j) Severability. In the event that any one or more of the provisions
-------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
-----------------
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by Holdings with respect
to the securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Securities Held by Holdings or Its Affiliates. Whenever the
---------------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities or Warrants is required thereunder, Registrable Securities or
Warrants held by Holdings or by any of its affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted (in either the
numerator or the denominator) in determining whether such consent or approval
was given by the Holders of such required percentage.
[signature page follows]
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XM SATELLITE RADIO HOLDINGS INC.
By:__________________________
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:__________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
By:__________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By:__________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.
By:__________________________
Name:
Title:
Warrant Registration Rights signature page