Exhibit 4.11
THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
WARRANT AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.1(a) or 3.6(g) OF THE
WARRANT AGREEMENT, (II) THIS GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 3.6(a) OF THE WARRANT AGREEMENT, (III) THIS GLOBAL
WARRANT MAY BE DELIVERED TO THE WARRANT AGENT FOR CANCELLATION PURSUANT TO
SECTION 3.6(g) OR 3.11 OF THE WARRANT AGREEMENT AND (IV) THIS GLOBAL WARRANT MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF XM
SATELLITE RADIO HOLDINGS INC. ("HOLDINGS").
NOTWITHSTANDING ANY PROVISIONS OF THIS WARRANT OR ANY OTHER DOCUMENT
TO THE CONTRARY, IN THE EVENT THAT THE CONSENT OF THE FEDERAL COMMUNICATIONS
COMMISSION ("FCC") TO THE EXERCISE OF THIS WARRANT IS REQUIRED TO BE OBTAINED
PRIOR TO SUCH EXERCISE, THIS WARRANT SHALL NOT BE EXERCISABLE UNLESS AND UNTIL
SUCH FCC CONSENT SHALL HAVE BEEN OBTAINED. IN THE EVENT THAT THIS WARRANT IS
INTENDED TO BE EXERCISED AND SUCH FCC CONSENT IS REQUIRED TO BE OBTAINED,
HOLDINGS AND THE HOLDER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN SUCH
FCC CONSENT PROMPTLY.
NOTWITHSTANDING ANY PROVISIONS OF THIS WARRANT OR ANY OTHER DOCUMENT
TO THE CONTRARY, INCLUDING BUT NOT LIMITED TO THE PRECEDING PARAGRAPH, THIS
WARRANT SHALL NOT BE EXERCISABLE IN THE EVENT THAT SUCH EXERCISE WOULD CAUSE THE
AGGREGATE ALIEN OWNERSHIP OR VOTING INTEREST IN HOLDINGS TO INCREASE TO ANY
LEVEL ABOVE 24.5%, AS DETERMINED BY APPLICABLE FCC RULES, REGULATIONS, AND
POLICIES, IT BEING WELL UNDERSTOOD THAT THIS WARRANT SHALL NOT BE EXERCISABLE IN
THE EVENT THAT SUCH ALIEN OWNERSHIP OR VOTING INTEREST ALREADY EXCEEDS 24.5%, IT
BEING FURTHER UNDERSTOOD THAT IN NO EVENT SHALL HOLDINGS BE REQUIRED HEREUNDER
TO SEEK FCC CONSENT TO EXCEED FCC ALIEN OWNERSHIP OR VOTING LIMITATIONS
APPLICABLE TO HOLDINGS.
No. 1 300,176 Warrants
CUSIP No. 983759 11 9
Warrant Certificate
XM SATELLITE RADIO HOLDINGS INC.
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of Warrants expiring December 31, 2009 (the
"Warrants") to purchase Class A Common Stock. Each Warrant entitles the holder
upon exercise to receive from Holdings commencing on January 28, 2003 until 5:00
p.m. New York City time on December 31, 2009, the number of fully paid and
nonassessable Warrant Shares as set forth in the Warrant Agreement, subject to
adjustment as set forth in Section 8 of the Warrant Agreement, at the initial
exercise price (the "Exercise Price") of $3.18 per share payable upon surrender
of this Warrant Certificate and payment of the Exercise Price at the office or
agency of the Warrant Agent, but only subject to the conditions set forth herein
and in the Warrant Agreement referred
to on the reverse hereof. Notwithstanding the foregoing, Warrants may be
exercised without the exchange of funds pursuant to the cashless exercise
provisions of Section 4 of the Warrant Agreement. The Exercise Price and number
of Warrant Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events set forth in the Warrant
Agreement. No Warrant may be exercised after 5:00 p.m., New York City time, on
December 31, 2009, and to the extent not exercised by such time such Warrants
shall become void. Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place. This Warrant Certificate shall not be valid unless countersigned by an
authorized signatory of the Warrant Agent, as such term is used in the Warrant
Agreement. This Warrant Certificate shall be governed and construed in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, XM Satellite Radio Holdings Inc. has caused this
Warrant Certificate to be signed by its President and Chief Executive Officer
and by its Senior Vice President and Secretary and may cause its corporate seal
to be affixed hereunto or imprinted hereon.
Dated: January 28, 2003
XM Satellite Radio Holdings Inc.
By: /s/ Hugh Panero
----------------------------------------
Name: Hugh Panero
Title: President and Chief Executive Officer
By: /s/ Joseph Titlebaum
----------------------------------------
Name: Joseph Titlebaum
Title: Senior Vice President and Secretary
Date of Countersignature:
January 28, 2003
Certificate of Authentication:
This is one of the Warrants referred to in the within mentioned Warrant
Agreement.
The Bank of New York
as Warrant Agent
By: /s/ John Guiliano
----------------------------------------
Authorized Signatory
[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring December 31, 2009 on exercise to receive
shares of Class A Common Stock, and are issued or to be issued pursuant to a
Warrant Agreement dated as of January 28, 2003 (the "Warrant Agreement"), duly
executed and delivered by Holdings to The Bank of New York, as warrant agent
(the "Warrant Agent"), which Warrant Agreement (including the definitions set
forth therein) is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Warrant Agent,
Holdings and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants. A copy of the Warrant Agreement
may be obtained by the holder hereof upon written request to Holdings.
Warrants may be exercised at any time on or before December 31, 2009;
provided that holders shall be required to make payment of the Exercise Price
upon exercise of their Warrants only by means of a Cashless Exercise (as defined
in Section 4.3 of the Warrant Agreement) unless a registration statement
relating to the Warrant Shares is then in effect under the Securities Act of
1933, as amended (the "Securities Act"), and the making of offers and sales of
the Warrant Shares thereunder has not been suspended or terminated in accordance
with the provisions of Section 16 of the Warrant Agreement (the periods in which
such conditions are met being referred to herein as "Registered Periods"). In
order to exercise all or any of the Warrants represented by this Warrant
Certificate, (i) in the case of Definitive Warrants, the holder must surrender
for exercise this Warrant Certificate to the Warrant Agent at its New York
corporate trust office set forth in Section 17 of the Warrant Agreement, (ii) in
the case of a book-entry interest in a Global Warrant, the exercising
Participant whose name appears on a securities position listing of the
Depositary as the holder of such book-entry interest must comply with the
Depositary's procedures relating to the exercise of such book-entry interest in
such Global Warrant and (iii) in the case of both Global Warrants and Definitive
Warrants, the holder thereof or the Participant, as applicable, must deliver to
the Warrant Agent the form of election to purchase on the reverse hereof duly
filled in and signed, which signature shall be a medallion guaranteed by an
institution which is a member of a Securities Transfer Association recognized
signature guarantee program, and upon payment to the Warrant Agent for the
account of Holdings of the Exercise Price, as adjusted as provided in the
Warrant Agreement, for the number of Warrant Shares in respect of which such
Warrants are then exercised. No adjustment shall be made for any dividends on
any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Class A Common Stock issuable
upon the exercise of each Warrant shall be adjusted. No fractions of a share of
Common Stock will be issued upon the exercise of any Warrant, but Holdings will
pay the cash value thereof determined as provided in the Warrant Agreement.
Holdings has agreed to use its Commercially Reasonable Efforts
(subject to Black Out Periods) to (i) file within 90 days after the date of the
Warrant Agreement a Shelf
Registration Statement on an appropriate form under the Securities Act covering
the issuance of Warrant Shares upon exercise of the Warrants, (ii) make the
Shelf Registration Statement effective no later than 180 days after the date of
the Warrant Agreement, and (iii) keep the Shelf Registration Statement effective
until the earlier of the second anniversary of the date on which such Shelf
Registration Statement is declared effective by the Commission or such time as
all Warrants have been exercised and all Warrant Shares have been issued in
respect thereof.
Warrant Certificates, when surrendered at the office of the Warrant
Agent by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
Holdings and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither Holdings nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of Holdings.
FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive shares of Class A Common
Stock upon payment by the undersigned of the Exercise Price in effect as of the
date hereof for the Warrants being surrendered.
The undersigned understands and acknowledges that if exercise is
occurring other than during a Registered Period, the undersigned is exercising
Warrants pursuant to the Cashless Exercise provisions of Section 4.3 of the
Warrant Agreement. If exercise is occurring during a Registered Period, the
undersigned elects to make payment of the Exercise Price:
[ ] Check this box and complete if payment is to be made in cash, by
wire transfer or by certified or official bank check payable to the order of
Holdings. The undersigned elects to receive ____ shares of Class A Common Stock
and herewith tenders payment for such shares to the order of Holdings in the
amount of $____ in accordance with the terms hereof.
[ ] Check this box and complete if payment is to be made pursuant to
the Cashless Exercise provisions of Section 4.3 of the Warrant Agreement. The
undersigned elects to receive such number of shares of Class A Common Stock as
Holdings then shall be required to issue in accordance with Section 4.3 of the
Warrant Agreement upon tender by the undersigned for exchange of Warrants to
purchase ____ shares of Class A Common Stock.
The undersigned requests that a certificate for such shares be
registered in the name of _____________________________, whose address is
_______________________________ and that such shares be delivered to __________
whose address is _______________________________. If said number of shares is
less than all of the shares of Common Stock purchasable hereunder, the
undersigned requests that a new Warrant Certificate representing the remaining
balance of such shares be registered in the name of ______________, whose
address is _________________________, and that such Warrant Certificate be
delivered to _________________, whose address is __________________. If payment
of the Exercise Price is to be made through Cashless Exercise, in accordance
with Section 9 of the Warrant Agreement the undersigned requests that any cash
in lieu of fractional interests be paid to __________ whose address is
_______________________________.
Date: ______________, ____
--------------------------
(Signature)
--------------------------
(Signature Guaranteed)
SCHEDULE A
SCHEDULE OF WARRANTS
EVIDENCED BY THIS GLOBAL WARRANT
The initial number of Warrants evidenced by this Global Warrant shall
be ______. The following decreases/increases in the number of Warrants evidenced
by this Warrant have been made:
Total Number of
Decrease in Warrants Evidenced
Number of Increase in Number by this Global
Date of Warrants of Warrants Warrant Following Notation Made by
Decrease/ Evidenced by this Evidenced by this such Decrease/ or on Behalf of
Increase Global Warrant Global Warrant Increase Warrant Agent
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