Exhibit 4.12
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ACQUIRED UPON THE
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
NEITHER THIS WARRANT NOR SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR (B) UPON
RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL, WHICH OPINION SHALL BE
REASONABLY SATISFACTORY TO ISSUER THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND SUCH LAWS.
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XM SATELLITE RADIO HOLDINGS INC.
COMMON STOCK PURCHASE WARRANT
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This certifies that, for good and valuable consideration, XM Satellite
Radio Holdings Inc., a Delaware corporation (the "Company"), grants to General
Motors Corporation, a Delaware corporation ("GM"), the right to subscribe for
and purchase from the Company shares of the Company's Class A common stock, par
value $0.01 per share (the "Common Stock"), subject to the terms, conditions and
adjustments herein set forth.
Certain capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in Section 11.
Certificate No. 3
Name of Warrantholder: General Motors Corporation
Number of Shares: 10,000,000
1. Number of Warrant Shares; Exercise Price.
Subject to terms, conditions and adjustments as set forth in Section 7.1
and elsewhere herein, the Warrantholder shall have the right, in respect of this
Warrant, to purchase 10,000,000 shares of Common Stock (the "Warrant Shares") at
a purchase price per share of $3.18 (the "Exercise Price").
2. Duration and Exercise Of Warrant; Limitations on Exercise; Payment of
Taxes.
2.1 Exercisability of Warrant. Subject to the terms and conditions
set forth herein, the right to exercise this Warrant shall vest
as of the Grant Date.
2.2 Duration and Exercise of Warrant. Subject to the terms and
conditions set forth herein, the Warrant may be exercised, in
whole or in part, in respect of any Warrant Shares at any time
prior to the Expiration Date by the Warrantholder by:
(a) the surrender of this Warrant to the Company, with a
duly executed Exercise Form specifying the number of
Warrant Shares to be purchased, during normal
business hours on any Business Day prior to the
Expiration Date; and
(b) the delivery of payment to the Company, for the
account of the Company, by cash, by certified or bank
cashier's check or by wire transfer of immediately
available funds in accordance with wire instructions
that shall be provided by the Company upon request,
of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form in lawful money
of the United States of America.
The Company agrees that such Warrant Shares shall be deemed to
be issued to the Warrantholder as the record holder of such
Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for
the Warrant Shares as aforesaid.
2.3 Limitations on Exercise.
(a) Notwithstanding anything to the contrary herein, the
number of shares of Common Stock that may be acquired by
the Warrantholder upon exercise shall be limited to the
extent necessary to ensure that, following such
exercise, the total number of shares of capital stock of
the Company then beneficially owned by the Warrantholder
and its Affiliates and any other Persons whose
beneficial ownership of Common Stock
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would be aggregated with the Warrantholder's for
purposes of Section 13(d) of the Exchange Act does not
exceed 19.9% of the total number of issued and
outstanding shares of Common Stock (including for such
purpose the shares of Common Stock issuable upon such
exercise). For such purposes, beneficial ownership shall
be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations thereunder.
The Warrantholder acknowledges that the Company has not
reserved any shares of Common Stock for issuance upon
exercise of this Warrant, and therefore that this
Warrant may exercised only upon the obtaining by the
Company of the stockholder approval and amendment of its
Certificate of Incorporation under Section 4 hereof.
(b) Notwithstanding anything to the contrary herein, this
Warrant may be exercised only upon (i) the delivery to
the Company of any certificates, legal opinions, and
other documents reasonably requested by the Company to
satisfy the Company that the proposed exercise of this
Warrant may be effected without registration under the
Securities Act, and (ii) receipt of approval of any
applicable Governmental Authority of the proposed
exercise, including, but not limited to, any approval
required pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or from the FCC
(including if such exercise would result in any change
of control). The cost of such approvals, certificates,
legal opinions and other documents, if required, shall
be borne by the Warrantholder.
2.4 Warrant Shares Certificate. A stock certificate or certificates
for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder within five Business Days after
receipt of the Exercise Form and receipt of payment of the
purchase price. If this Warrant shall have been exercised only
in part, the Company shall, at the time of delivery of the
stock certificate or certificates, deliver to the Warrantholder
a new warrant evidencing the rights to purchase the remaining
Warrant Shares, which new warrant shall in all other respects
be identical with this Warrant.
2.5 Payment of Taxes. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for
any documentary, stamp or similar stock transfer or other
issuance tax in respect thereto; provided, however, that the
Warrantholder shall be required to pay any and all taxes which
may be payable in respect of any transfer involved in the
issuance and delivery of any certificate
3
in a name other than that of the then Warrantholder as
reflected upon the books of the Company.
3. Restrictions on Transfer; Restrictive Legends.
3.1 Transfer of Warrant. This Warrant may not be transferred by
the Warrantholder, except with the written consent of the
Company; provided, however, that the Warrantholder may
transfer this Warrant to any Affiliate of the Warrantholder
without the prior written consent of the Company.
3.2 Restrictive Legends.
(a) Except as otherwise permitted by this Section, this
Warrant shall (and each Warrant issued in substitution
for any Warrant pursuant to Section 5 shall) be stamped
or otherwise imprinted with a legend in substantially
the following form:
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND ANY
SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THIS WARRANT NOR SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR (B) UPON
RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL, WHICH
OPINION SHALL BE REASONABLY SATISFACTORY TO THE ISSUER
THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT AND SUCH STATE SECURITIES LAWS.
(b) Except as otherwise permitted by this Section, each
stock certificate for Warrant Shares issued upon the
exercise of any Warrant and each stock certificate
issued upon the direct or indirect transfer of any such
Warrant Shares shall be stamped or otherwise imprinted
with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS AND NEITHER THE
4
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR (B) UPON
RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL, WHICH
OPINION SHALL BE REASONABLY SATISFACTORY TO THE ISSUER
THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT AND SUCH STATE SECURITIES LAWS.
(c) Notwithstanding paragraphs (a) and (b) of this Section
3.2, the Warrantholder may require the Company to issue
to the Warrantholder a Warrant or a stock certificate
for Warrant Shares, in each case without a legend, if
either (i) the resale of such Warrant or such Warrant
Shares, as the case may be, has been registered under
the Securities Act or (ii) the Warrantholder has
delivered to the Company an opinion of legal counsel,
which opinion shall be addressed to the Company and be
reasonably satisfactory in form and substance to the
Company, to the effect that such registration is not
required with respect to the resale of such Warrant or
such Warrant Shares, as the case may be.
4. Reservation and Registration of Shares, Etc.
The Company covenants and agrees as follows:
(a) all Warrant Shares which are issued upon the exercise
of this Warrant will, upon issuance, be validly
issued, fully paid, and nonassessable, not subject to
any preemptive rights, and free from all taxes,
liens, security interests, charges, and other
encumbrances with respect to the issue thereof;
(b) at its next shareholders meeting, the Company will
seek shareholder approval to amend the Certificate of
Incorporation to increase the number of shares of
authorized Common Stock by a number sufficient for it
to reserve, and the Company covenants that it will,
immediately following receipt of such shareholder
approval, reserve and keep available out of its
authorized Common Stock, a sufficient number of
shares for the purposes of issuance upon exercise of
this Warrant; and
5
(c) the Company will, from time to time, take all such
action as may be required to assure that the par
value per share of the Warrant Shares is at all times
equal to or less than the then effective Exercise
Price.
5. Loss or Destruction of Warrant.
Subject to the terms and conditions hereof, upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant and, in the case of loss, theft or destruction, of
such bond or indemnification as the Company may reasonably require, and, in the
case of such mutilation, upon surrender and cancellation of this Warrant, the
Company will execute and deliver a new Warrant of like tenor.
6. Ownership of Warrant.
The Company may deem and treat the Person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer in accordance with the
restrictions on transfer set forth herein.
7. Certain Adjustments
7.1 The number of Warrant Shares purchasable upon the exercise
of this Warrant and the Exercise Price shall be subject to
adjustment as follows:
(a) Stock Dividends. If at any time after the date of the
issuance of this Warrant (i) the Company shall fix a
record date for the issuance of any stock dividend
payable in shares of Common Stock; or (ii) the number of
shares of Common Stock shall have been increased by a
subdivision or split-up of shares of Common Stock, then,
on the record date fixed for the determination of
holders of Common Stock entitled to receive such
dividend or immediately after the effective date of such
subdivision or split-up, as the case may be, the number
of shares to be delivered upon exercise of this Warrant
will be increased so that the Warrantholder will be
entitled to receive the number of shares of Common Stock
that the Warrantholder would have owned immediately
following such action had this Warrant been exercised
immediately prior thereto, and the Exercise Price will
be adjusted as provided below in paragraph (g).
6
(b) Combination of Stock. If the number of shares of Common
Stock outstanding at any time after the date of the
issuance of this Warrant shall have been decreased by a
combination of the outstanding shares of Common Stock,
then, immediately after the effective date of such
combination, the number of shares of Common Stock to be
delivered upon exercise of this Warrant will be
decreased so that the Warrantholder thereafter will be
entitled to receive the number of shares of Common Stock
that the Warrantholder would have owned immediately
following such action had this Warrant been exercised
immediately prior thereto, and the Exercise Price will
be adjusted as provided below in paragraph (g).
(c) Reorganization, etc. If any capital reorganization of
the Company, any reclassification of the Common Stock,
any consolidation of the Company with or merger of the
Company with or into any other Person, or any sale or
lease or other transfer of all or substantially all of
the assets of the Company to any other Person, shall be
effected in such a way that the holders of Common Stock
shall be entitled to receive stock, other securities or
assets (whether such stock, other securities or assets
are issued or distributed by the Company or another
Person) with respect to or in exchange for Common Stock,
then, upon exercise of this Warrant, the Warrantholder
shall have the right to receive the kind and amount of
stock, other securities or assets receivable upon such
reorganization, reclassification, consolidation, merger
or sale, lease or other transfer by a holder of the
number of shares of Common Stock that the Warrantholder
would have been entitled to receive upon exercise of
this Warrant had this Warrant been exercised immediately
before such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer,
subject to adjustments that shall be as nearly
equivalent as may be practicable to the adjustments
provided for in this Section 7. If the Company effects
any such consolidation, merger or sale, lease or other
transfer, the Company shall ensure that prior to, or
simultaneously with, the consummation thereof, the
successor Person (if other than the Company) resulting
from such consolidation or merger, or such Person
purchasing, leasing or otherwise acquiring such assets,
shall assume, by written instrument, the obligation to
deliver to the Warrantholder the shares of stock,
securities or assets to which, in accordance with the
foregoing provisions, the Warrantholder may be entitled
and all other obligations of the Company under this
Warrant. The provisions of this paragraph (c) shall
apply to successive
7
reorganizations, reclassifications, consolidations,
mergers, sales, leasing transactions and other
transfers.
(d) Distributions to all holders of Common Stock. If the
Company shall, at any time after the date of issuance of
this Warrant, fix a record date to distribute to all
holders of its Common Stock any shares of capital stock
of the Company (other than Common Stock) or evidences of
its indebtedness or assets (not including regular cash
dividends and distributions paid from retained earnings
of the Company) or rights or warrants to subscribe for
or purchase any of its securities, then the
Warrantholder shall be entitled to receive, upon
exercise of this Warrant, that portion of such
distribution to which it would have been entitled had
the Warrantholder exercised its Warrant immediately
prior to the date of such distribution. At the time it
fixes the record date for such distribution, the Company
shall allocate sufficient reserves to ensure the timely
and full performance of the provisions of this
Subsection. The Company shall promptly (but in any case
no later than five Business Days prior to the record
date of such distribution) give notice to the
Warrantholder that such distribution will take place.
(e) Fractional Shares. No fractional shares of Common
Stock or scrip shall be issued to the Warrantholder
in connection with the exercise of this Warrant.
Instead of any fractional shares of Common Stock that
would otherwise be issuable to the Warrantholder, the
Company will pay to the Warrantholder a cash
adjustment in respect of such fractional interest in
an amount equal to that fractional interest of the
then current Fair Market Value per share of Common
Stock.
(f) Carryover. Notwithstanding any other provision of
this Section 7, no adjustment shall be made to the
number of shares of Common Stock to be delivered to
the Warrantholder (or to the Exercise Price) if such
adjustment represents less than 0.10% of the number
of shares to be so delivered, but any lesser
adjustment shall be carried forward and shall be made
at the time and together with the next subsequent
adjustment which together with any adjustments so
carried forward shall amount to 0.10% or more of the
number of shares to be so delivered.
(g) Exercise Price Adjustment. Whenever the number of
Warrant Shares purchasable upon the exercise of this
Warrant is adjusted, as herein provided, the Exercise
Price payable upon the exercise of this Warrant shall
be adjusted by multiplying
8
such Exercise Price immediately prior to such adjustment
by a fraction, of which the numerator shall be the
number of Warrant Shares purchasable upon the exercise
of the Warrant immediately prior to such adjustment, and
of which the denominator shall be the number of Warrant
Shares purchasable immediately thereafter.
7.2 Rights Offering. In the event the Company shall effect an
offering of Common Stock pro rata among its stockholders,
the Warrantholder shall be entitled to elect to participate
in each and every such offering as if this Warrant had been
exercised immediately prior to each such offering. The
Company shall promptly (but in any case no later than five
Business Days prior to such rights offering) give notice to
the Warrantholder that such rights offering will take place.
The Company shall not be required to make any adjustment
with respect to the issuance of shares of Common Stock
pursuant to a rights offering in which the holder hereof
elects to participate under the provisions of this Section
7.2.
7.3 Notice of Adjustments. Whenever the number of Warrant Shares
or the Exercise Price of such Warrant Shares is adjusted, as
herein provided, the Company at its expense shall promptly
give to the Warrantholder notice of such adjustment or
adjustments and a certificate of the independent public
accountants regularly employed by the Company or a firm of
independent public accountants of recognized national
standing selected by the Board of Directors of the Company
(which shall be appointed at the Company's expense) setting
forth the number of Warrant Shares and the Exercise Price of
such Warrant Shares after such adjustment, a brief statement
of the facts requiring such adjustment, and the computation
by which such adjustment was made.
7.4 Notice of Extraordinary Corporate Events. In case the
Company after the date hereof shall propose to
(i) distribute any dividend (whether stock or cash or
otherwise) to the holders of shares of Common Stock or to make
any other distribution to the holders of shares of Common
Stock, (ii) offer to the holders of shares of Common Stock
rights to subscribe for or purchase any additional shares of
any class of stock or any other rights or options, or
(iii) effect any reclassification of the Common Stock (other
than a reclassification involving merely the subdivision or
combination of outstanding shares of Common Stock), any capital
reorganization, any consolidation or merger (other than a
merger in which no distribution of securities or other property
is to be made to holders of shares of Common Stock), any sale
or lease or transfer or other
9
disposition of all or substantially all of its property, assets
and business, or the liquidation, dissolution or winding up of
the Company, then, in each such case, the Company shall give to
the Warrantholder notice of such proposed action, which notice
shall specify the date on which (a) the books of the Company
shall close, or (b) a record shall be taken for determining the
holders of Common Stock entitled to receive such stock
dividends or other distribution or such rights or options, or
(c) such reclassification, reorganization, consolidation,
merger, sale, transfer, other disposition, liquidation,
dissolution or winding up shall take place or commence, as the
case may be, and the date, if any, as of which it is expected
that holders of record of Common Stock shall be entitled to
receive securities or other property deliverable upon such
action. Such notice shall be given in the case of any action
covered by clause (i) or (ii) above at least ten days prior to
the record date for determining holders of Common Stock for
purposes of receiving such payment or offer, or in the case of
any action covered by clause (iii) above at least 30 days prior
to the date upon which such action takes place and 20 days
prior to any record date to determine holders of Common Stock
entitled to receive such securities or other property.
7.5 Effect of Failure to Notify. Failure to file any certificate
or notice or to give any notice, or any defect in any
certificate or notice pursuant to Sections 7.3 and 7.4 shall
not affect the legality or validity of the adjustment to the
Exercise Price, the number of shares purchasable upon
exercise of this Warrant, or any transaction giving rise
thereto.
8. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Warrantholder the benefits of Rule 144 promulgated under
the Securities Act or any other similar rule or regulation of the SEC that
may at any time permit the Warrantholder to sell securities of the Company
to the public without registration ("Rule 144"), the Company agrees, at all
times when the Warrantholder may need to rely on Rule 144 to sell such
securities to the public without registration, to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all
times;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to the Warrantholder so long as the
Warrantholder owns this Warrant, promptly upon request,
(i) a written statement by the Company that it has
complied with the reporting
10
requirements of Rule 144 (at any time after 90 days
after the effective date of the first registration
statement filed by the Company), the Securities Act and
the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of
the most recent annual or quarterly report of the
Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be
reasonably requested to permit the Warrantholder to sell
such securities without registration.
9. Amendments. Any provision of this Warrant may be amended and the observance
thereof may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent or
approval of the Company and the Warrantholder. Any amendment or waiver
effected in accordance with this Section shall be binding upon the
Warrantholder and the Company.
10. Expiration of the Warrant. The obligations of the Company pursuant to this
Warrant shall terminate on the Expiration Date.
11. Definitions.
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Affiliate: 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 specified Person, for so long as such Person
remains so associated to the specified Person.
Business Day: any day other than a Saturday, Sunday or a day on which
banks are required or authorized by law to close in The City of New York, State
of New York.
Bylaws: the bylaws of the Company, as the same may be amended and in
effect from time to time.
Certificate of Incorporation: the Restated Certificate of Incorporation of
the Company, as the same may be amended and in effect from time to time.
Common Stock: the meaning specified on the cover of this Warrant.
Company: the meaning specified on the cover of this Warrant.
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Contractual Obligation: as to any Person, any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument to which such
Person is a party or by which it or any of its property is bound.
Exchange Act: the Securities Exchange Act of 1934, as amended, or any
similar Federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time. Reference to a particular
section of the Exchange Act shall include a reference to a comparable section,
if any, of any such similar Federal statute.
Exercise Form: a request to exercise this Warrant in respect of some or
all of the Warrant Shares in the form annexed hereto as Exhibit A.
Exercise Price: the meaning specified in Section 1 of this Warrant.
Expiration Date: Fifth anniversary of the Grant Date.
Fair Market Value: With respect to a share of Common Stock as of a
particular date:
(i) if the Common Stock is registered under the Exchange Act, (a) the
average of the daily closing sales prices of the Common Stock for the
10 consecutive trading days immediately preceding such date, or
(b) if the securities have been registered under the Exchange Act for
less than 10 consecutive trading days before such date, then the
average of the daily closing sales prices for all of trading days
before such date for which closing sales prices are available, in the
case of each of (a) and (b), as certified by any Vice President or
the Chief Financial Officer of the Company; or
(ii) If the Common Stock is not registered under the Exchange Act, then
the Fair Market Value shall be as reasonably determined in good faith
by the Board of Directors of the Company or a duly appointed
committee thereof (which determination shall be reasonably described
in the written notice given to the Warrantholder); provided, however,
that if the Warrantholder reasonably objects to such determination of
Fair Market Value by the Board of Directors or a duly appointed
committee thereof, then such determination shall be referred to an
unaffiliated investment banking firm of national reputation whose
determination shall be final and binding upon the parties.
For the purposes of clause (i) of this definition, the closing sales price
for each such trading day shall be: (1) in the case of a security listed or
admitted to trading on any United States national securities exchange or
quotation system, the closing sales price, regular way, on such day, or if no
sale takes place on such day, the average of the closing bid and asked prices on
such day; (2) in the case of a security
12
not then listed or admitted to trading on any national securities exchange or
quotation system, the last reported sale price on such day, or if no sale takes
place on such day, the average of the closing bid and asked prices on such day,
as reported by a reputable quotation source designated by the Company; (3) in
the case of a security not then listed or admitted to trading on any national
securities exchange or quotation system and as to which no such reported sale
price or bid and asked prices are available, the average of the reported high
bid and low asked prices on such day, as reported by a reputable quotation
service, or a newspaper of general circulation in the Borough of Manhattan, City
and State of New York, customarily published on each Business Day, designated by
the Company, or if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most recent
day (not more than 30 days prior to the date in question) for which prices have
been so reported; and (4) if there are no bid and asked prices reported during
the 30 days prior to the date in question, the Fair Market Value shall be
determined as if the securities were not registered under the Exchange Act.
FCC: the Federal Communications Commission.
Governmental Authority: the government of any nation, state, city,
locality or other political subdivision of any thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government or any international regulatory body
having or asserting jurisdiction over a Person, its business or its properties.
Grant Date: _______, 200_.
Lien: any mortgage, deed of trust, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other), restriction or other security interest
of any kind or nature whatsoever.
Person: any individual, firm, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint
stock company, Governmental Authority or other entity of any kind.
Requirement of Law: as to any Person, any law, treaty, rule, regulation,
qualification, license or franchise or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable or binding upon such
Person or any of its property or to which such Person or any of its property is
subject or pertaining to any or all of the transactions contemplated hereby.
Rule 144: the meaning specified in Section 8 of this Warrant.
SEC: the Securities and Exchange Commission or any other Federal agency at
the time administering the Securities Act or the Exchange Act, whichever is the
relevant statute for the particular purpose.
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Securities Act: the meaning specified on the cover of this Warrant, or any
similar Federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time. Reference to a particular
section of the Securities Act, shall include a reference to the comparable
section, if any, of any such similar Federal statute.
Warrant Shares: the meaning specified on the cover of this Warrant.
Warrantholder: GM (for so long as GM holds any interest in the Warrant)
and any transferee of GM's rights in the Warrant that are transferred in
accordance with Section 3.1 hereof (for so long as such transferee holds such
rights).
12. No Impairment. The Company shall not by any action, including, without
limitation, amending its Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant,
but will at all time in good faith assist in the carrying out of all such
terms and in the taking of all such reasonable actions as may be necessary
or appropriate to protect the rights of the Warrantholder against
impairment. Without limiting the generality of the foregoing, the Company
shall (a) take all such actions as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassesable
shares of Common Stock upon the exercise of this Warrant, and (b) provide
reasonable assistance to the Warrantholder in obtaining all authorizations,
exemptions or consents from any Governmental Authority which may be
necessary in connection with the exercise of this Warrant.
13. Miscellaneous.
13.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to the
Warrant.
13.2 Binding Effects; Benefits. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the
Warrantholder and their respective heirs, legal
representatives, permitted successors and permitted assigns.
Nothing in this Warrant, expressed or implied, is intended
to or shall confer on any Person other than the Company and
the Warrantholder, or their respective heirs, legal
representatives, permitted successors or permitted assigns,
any rights, remedies, obligations or liabilities under or by
reason of this Warrant.
13.3 Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only
and shall
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not be deemed to be a part of this Warrant or to affect the
meaning or interpretation of this Warrant.
13.4 Pronouns. All pronouns and any variations thereof refer to
the masculine, feminine or neuter, singular or plural, as
the context may require.
13.5 Further Assurances. Each of the Company and the
Warrantholder shall do and perform all such further acts and
things and execute and deliver all such other certificates,
instruments and documents as the Company or the
Warrantholder may, at any time and from time to time,
reasonably request in connection with the performance of any
of the provisions of this Warrant.
13.6 Notices. All notices and other communications required or
permitted to be given under this Warrant shall be in writing
and shall be deemed to have been duly given if (i) delivered
personally or (ii) sent by facsimile or recognized overnight
courier or by United States first class certified mail,
postage prepaid, to the parties hereto at the following
addresses or to such other address as any party hereto shall
hereafter specify by notice to the other party hereto:
if to the Company, addressed to:
XM Satellite Radio Holdings Inc.
1500 Eckington Place, N.E.
Washington, D.C. 20002
Attention: Chief Financial Officer
if to the Warrantholder, addressed to:
General Motors Corporation
100 Renaissance Center
Detroit, MI 48265
Attention: General Counsel
Except as otherwise provided herein, all such notices and
communications shall be deemed to have been received (a) on
the date of delivery thereof, if delivered personally or
sent by facsimile, (b) on the second Business Day following
delivery into the custody of an overnight courier service,
if sent by overnight courier, provided that such delivery is
made before such courier's deadline for next-day delivery,
or (c) on the third Business Day after the mailing thereof.
13.7 Separability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be
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ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
terms and provisions of this Warrant or affecting the validity
or enforceability of any of the terms or provisions of this
Warrant in any other jurisdiction.
13.8 Governing Law. This Warrant shall be deemed to be a contract
made under the laws of New York and for all purposes shall
be governed by and construed in accordance with the laws of
such State applicable to such agreements made and to be
performed entirely within such State, except that all
matters relating to issuances of stock shall be governed by
Delaware General Corporation Law.
13.9 No Rights or Liabilities as Stockholder. Nothing contained
in this Warrant shall be deemed to confer upon the
Warrantholder any rights as a stockholder of the Company or
as imposing any liabilities on the Warrantholder to purchase
any securities whether such liabilities are asserted by the
Company or by creditors or stockholders of the Company or
otherwise.
13.10 Representations of the Company. The Company hereby represents
and warrants, as of the date hereof, to the Warrantholder as
follows:
(a) Corporate Existence and Power. The Company (i) is a
corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware;
(ii) has all requisite corporate power and authority to
own and operate its property, to lease the property it
operates as lessee and to conduct the business in which
it is engaged; and (iii) has the corporate power and
authority to execute, deliver and perform its
obligations under this Warrant. The Company is duly
qualified to do business as a foreign corporation in,
and is in good standing under the laws of, each
jurisdiction in which the conduct of its business or the
nature of the property owned requires such
qualification, except where the failure to qualify would
not, individually or in the aggregate, result in a
material adverse effect on the business, operations,
affairs, assets, liabilities, financial condition or
properties of the Company and its subsidiaries, taken as
a whole.
(b) Corporate Authorization; No Contravention. Subject to
receipt of the approval of the Company's stockholders of
the proposed amendment to the Company's certificate of
incorporation, as discussed in Section 4(b) hereof, and
the subsequent reservation for issuance of the Warrant
Shares, the execution, delivery and performance by the
Company of this Warrant and the
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transactions contemplated hereby, including, without
limitation, the sale, issuance and delivery of the
Warrant Shares, (i) have been duly authorized by all
necessary corporate action of the Company; (ii) do not
contravene the terms of the Certificate of Incorporation
or Bylaws; and (iii) do not violate, conflict with or
result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation
of the Company or any Requirement of Law applicable to
the Company. No event has occurred and no condition
exists which, upon notice or the passage of time (or
both), would constitute a default under any indenture,
mortgage, deed of trust, credit agreement, note or other
evidence of indebtedness or other material agreement of
the Company or the Certificate of Incorporation or
Bylaws.
(c) Issuance of Warrant Shares. Subject to receipt of the
approval of the Company's stockholders of the proposed
amendment to the Company's certificate of incorporation,
as discussed in Section 4(b) hereof, and the subsequent
reservation for issuance of the Warrant Shares, the
Warrant Shares will be duly authorized and reserved for
issuance. When issued, such shares will be validly
issued, fully paid and non-assessable, and free and
clear of all Liens and preemptive rights, and the
holders thereof shall be entitled to all rights and
preferences accorded to a holder of Common Stock.
(d) Binding Effect. This Warrant has been duly executed and
delivered by the Company and constitutes the legal,
valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except
as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance or
transfer, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by
general principles of equity.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
XM SATELLITE RADIO HOLDINGS INC.
By: Hugh Panero
/s/ Hugh Panero
-------------------------------------
Hugh Panero
President and Chief Executive Officer
Dated: January 28, 2003
Attest:
By: Joseph M. Titlebaum
/s/ Joseph M. Titlebaum
-----------------------------
Joseph M. Titlebaum
Senior Vice President, General Counsel
and Secretary
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Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase __________ shares of Common Stock and
herewith tenders payment for such Common Stock to the order of XM Satellite
Radio Holdings Inc. in the amount of $__________, which amount includes payment
of the par value for the Common Stock, in accordance with the terms of this
Warrant. The undersigned requests that a certificate for such shares of Common
Stock be registered in the name of __________________ and that such certificates
be delivered to __________________ whose address is
___________________________________.
Dated:
--------------
Signature
------------------------------
------------------------------
(Print Name)
------------------------------
(Street Address)
------------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
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