424B7
Filed
pursuant to Rule 424(b)(7)
Registration File No.: 333-158135
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price per
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Aggregate Offering
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Amount of
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Securities to be Registered
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Registered
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Share(1)
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Price
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Registration Fee
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Common Stock, par value $0.001 per share
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37,358,064
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$0.20
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$7,471,613
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$416.92(2)
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(1) |
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Estimated in accordance with Rule 457(c) of the Securities
Act of 1933 solely for the purposes of calculating the
registration fee, based on the average of the high and low
prices of Sirius XM Radio Inc. common stock as reported on the
NASDAQ Global Select Market on March 13, 2009, which was
$0.20 per share. |
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(2) |
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Pursuant to Rule 457(p) under the Securities Act of 1933,
(i) unused filing fees of $34 have already been paid with
respect to $5,230,129 aggregate initial offering price of unsold
common stock that was previously registered by the selling
stockholders pursuant to Registration Statement
No. 333-157890,
which was initially filed on March 12, 2009 and
(ii) unused filing fees of $33,900 have already been paid
with respect to unsold securities that were previously
registered by Sirius XM Radio Inc. pursuant to Registration
Statement
No. 333-157890,
which was initially filed on March 12, 2009, are being
offset against the registration fee due for this offering by the
selling stockholders named herein. No additional registration
fee has been paid with respect to this offering. |
Prospectus Supplement
(To Prospectus dated March 20, 2009)
37,358,064 Shares
COMMON
STOCK
This prospectus supplement relates to the offering of up to
37,358,064 shares of our common stock, par value $0.001 per
share (the Shares). The Shares are being offered for
sale from time to time by the Selling Stockholders named herein.
The Selling Stockholders, or any of their successors in
interest, may offer the Shares from time to time through public
or private transactions at prevailing market prices, at prices
related to prevailing market prices or at privately negotiated
prices. We will not receive any proceeds from the Selling
Stockholders sale of any such Shares.
We originally issued the Shares pursuant to a note purchase
agreement, dated February 13, 2009, among Sirius XM Radio
Inc., our wholly owned subsidiaries XM Satellite Radio Holdings
Inc., XM 1500 Eckington LLC and XM Investment LLC, and the
Selling Stockholders. For further information regarding the note
purchase agreement, see Selling Stockholders
beginning on
page S-7
of this prospectus supplement. The shares were issued in private
placement transactions exempt from the registration requirements
of the Securities Act of 1933, as amended (the Securities
Act), pursuant to Section 4(2) thereof.
We are not selling any shares of our common stock under this
prospectus supplement and the accompanying prospectus, and we
will not receive any of the proceeds from the sale of Shares by
the Selling Stockholders, but we have agreed to pay certain
registration expenses relating to such Shares. The Selling
Stockholders from time to time may offer and sell the shares of
our common stock held by them directly or through underwriters,
broker-dealers or agents, who may receive compensation in the
form of discounts, commissions or concessions. For further
information regarding the possible methods by which shares may
be distributed, see Plan of Distribution beginning
on
page S-12
of this prospectus supplement.
Our common stock is listed on the Nasdaq Global Select Market
under the symbol SIRI. On March 18, 2009, the
last reported sale price of our common stock on the Nasdaq
Global Select Market was $0.37.
Investing in our common stock involves risks. See
Risk Factors beginning on
page S-4
of this prospectus supplement and in the documents that we
incorporate by reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus supplement or the accompanying prospectus. Any
representation to the contrary is a criminal offense.
March 20, 2009
TABLE OF
CONTENTS
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PROSPECTUS SUPPLEMENT
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ii
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ii
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S-1
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S-4
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S-6
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S-6
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S-6
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S-7
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S-9
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S-12
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S-14
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S-14
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S-14
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S-15
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PROSPECTUS
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36
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i
ABOUT
THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part is this prospectus
supplement, which describes the specific terms of this offering.
The second part consists of the accompanying prospectus, which
gives more general information, some of which may not be
applicable to this offering.
If the description of the offering varies between this
prospectus supplement and the accompanying prospectus, you
should rely on the information in this prospectus supplement.
You should rely only on the information contained or
incorporated by reference in this prospectus supplement and the
accompanying prospectus.
We have not authorized any other person to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not,
and the selling stockholders are not, making an offer to sell
these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing
in this prospectus supplement, the accompanying prospectus and
the documents incorporated by reference is accurate only as of
their respective dates. Our business, financial condition,
results of operations and prospects may have changed since those
dates.
In this prospectus supplement and the accompanying prospectus,
unless otherwise indicated,
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SIRIUS, we, us,
our and similar terms refer to Sirius XM Radio Inc.
and its consolidated subsidiaries, unless otherwise specified or
the context otherwise requires;
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XM Holdings and Holdings refer to XM
Satellite Radio Holdings Inc., our direct subsidiary;
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XM Inc. refers to XM Satellite Radio Inc., the
direct subsidiary of XM Holdings; and
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the Selling Stockholders refers to those
stockholders listed in the table on p.
S-7.
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SPECIAL
NOTE ABOUT FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus, and the
documents incorporated by reference herein, include
forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Without limitation,
the words anticipates, believes,
estimates, expects, intends,
plans, will and similar expressions are
intended to identify forward-looking statements. All statements
that address operating performance, events or developments that
we expect or anticipate will occur in the future, including
statements relating to growth, expected levels of expenditures
and statements expressing general optimism about future
operating results, are forward-looking statements. Similarly,
statements that describe our business strategy, outlook,
prospective financial condition, objectives, plans and
intentions also are forward-looking statements. All such
forward-looking statements are subject to certain risks and
uncertainties that could cause actual results to differ
materially from those in forward-looking statements. These risks
and uncertainties include, but are not limited to, those
described in Risk Factors included in this
prospectus supplement and the accompanying prospectus and in our
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008, which we filed
with the Securities and Exchange Commission (SEC) on
March 10, 2009, and XM Holdings and XM Inc.s
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008, which was
filed with the SEC on March 13, 2009. These cautionary
statements should not be construed by you to be exhaustive and
are made only as of the date of this prospectus supplement. We
undertake no obligation to update or revise any forward-looking
statements, whether as a result of new information, future
events or otherwise.
ii
SUMMARY
This summary highlights selected information about us and the
offering of the Shares. This summary is not complete and does
not contain all of the information that may be important to you.
You should read carefully this entire prospectus supplement and
the accompanying prospectus, including the Risk
Factors section, and the other documents that we refer to
and incorporate by reference herein for a more complete
understanding of us and this offering. In particular, we
incorporate by reference important business and financial
information into this prospectus supplement and the accompanying
prospectus.
About
Sirius XM Radio Inc.
We broadcast in the United States our music, sports, news, talk,
entertainment, traffic and weather channels for a subscription
fee through our proprietary satellite radio systems
the SIRIUS system and the XM system. On July 28, 2008, our
wholly owned subsidiary, Vernon Merger Corporation, merged (the
Merger) with and into XM Satellite Radio Holdings
Inc. and, as a result, XM Satellite Radio Holdings Inc. is now
our wholly owned subsidiary. The SIRIUS system consists of three
in-orbit satellites, approximately 120 terrestrial repeaters
that receive and retransmit signals, satellite uplink facilities
and studios. The XM system consists of four in-orbit satellites,
over 700 terrestrial repeaters that receive and retransmit
signals, satellite uplink facilities and studios. Subscribers
can also receive certain of our music and other channels over
the Internet.
Our satellite radios are primarily distributed through
automakers (OEMs); at more than 19,000 retail
locations; and through our websites. We have agreements with
every major automaker to offer SIRIUS or XM satellite radios as
factory or dealer-installed equipment in their vehicles. SIRIUS
and XM radios are also offered to customers of rental car
companies, including Hertz and Avis.
As of December 31, 2008, we had 19,003,856 subscribers. Our
subscriber totals include subscribers under our regular pricing
plans; discounted pricing plans; subscribers that have prepaid,
including payments either made or due from automakers for
prepaid subscriptions included in the sale or lease price of a
new vehicle; active SIRIUS radios under our agreement with
Hertz; active XM radios under our agreement with Avis;
subscribers to SIRIUS Internet Radio and XM Internet Radio, our
Internet services; and subscribers to our weather, traffic and
certain subscribers to our video data services.
Our primary source of revenue is subscription fees, with most of
our customers subscribing on an annual, semi-annual, quarterly
or monthly basis. We offer discounts for prepaid and long-term
subscriptions as well as discounts for multiple subscriptions on
each platform. In 2009, we increased the discounted price for
additional subscriptions from $6.99 per month to $8.99 per
month. We also derive revenue from activation fees, the sale of
advertising on select non-music channels, the direct sale of
satellite radios and accessories, and other ancillary services,
such as our Backseat TV, data and weather services.
In certain cases, automakers include a subscription to our radio
services in the sale or lease price of vehicles. The length of
these prepaid subscriptions varies but is typically three to
twelve months. In many cases, we receive subscription payments
from automakers in advance of the activation of our service. We
also reimburse various automakers for certain costs associated
with satellite radios installed in their vehicles.
We have an interest in the satellite radio services offered in
Canada. SIRIUS Canada, a Canadian corporation that we jointly
own with Canadian Broadcasting Corporation and Slaight
Communications Inc., offers a satellite radio service in Canada.
SIRIUS Canada offers 120 channels of commercial-free music and
news, sports, talk and entertainment programming, including 11
channels offering Canadian content. XM Canada, a Canadian
corporation in which we have an ownership interest, also offers
satellite radio service in Canada. XM Canada offers 130 channels
of music and news, sports, talk and entertainment programming.
Subscribers to the SIRIUS Canada service and the XM Canada
service are not included in our subscriber count.
S-1
Recent
Developments
The Shares being offered for sale under this prospectus
supplement were originally issued to the Selling Stockholders on
February 13, 2009 in a private placement transaction exempt
from the registration requirements of the Securities Act of
1933, as amended (the Securities Act) pursuant to
Section 4(2) thereof. Pursuant to a note purchase agreement
among us, our wholly owned subsidiaries XM Satellite Radio
Holdings Inc., XM 1500 Eckington LLC and XM Investment LLC, and
the Selling Stockholders, XM Satellite Radio Holdings Inc.
issued to the Selling Stockholders $172,485,000 million in
aggregate principal amount of Senior PIK Secured Notes due 2011
(the exchange notes) in exchange for a like
principal amount of XM Satellite Holdings Inc.s
outstanding 10% Convertible Notes due 2009 (the old
notes). The exchange notes are fully and unconditionally
guaranteed by XM 1500 Eckington LLC and XM Investment LLC, our
wholly owned subsidiaries, and are secured by a lien on certain
real and personal property held by those entities. In addition,
we paid the Selling Stockholders a fee, per $1,000 aggregate
principal amount of old notes exchanged, in the amount of either
(1) 833 shares of our common stock or (2) $50
cash, at each Selling Stockholders election. We agreed
pursuant to the note purchase agreement to file this prospectus
supplement to register these shares for resale.
Since October 1, 2008, we have also entered into a series
of other transactions to improve our liquidity and strengthen
our balance sheet, including:
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the issuance of an aggregate of 539,611,513 shares of our
common stock for $128,412,000 aggregate principal amount of our
21/2% Convertible
Notes due 2009; and
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the execution of agreements with Liberty Media Corporation and
its affiliate, Liberty Radio LLC, pursuant to which they have
invested an aggregate of $350,000,000 in the form of loans to
us, are committed to invest an additional $180,000,000 in loans
to us, and have received a significant equity interest in us.
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In addition to the information contained in our Annual Report on
Form 10-K
and our Current Reports on
Form 8-K
incorporated by reference into this prospectus, as described in
Incorporation by Reference, you should carefully
review the risks we outline under Risk Factors.
Corporate
Information
Sirius Satellite Radio Inc. was incorporated in the State of
Delaware as Satellite CD Radio, Inc. on May 17, 1990. On
December 7, 1992, Satellite CD Radio, Inc. changed its name
to CD Radio Inc., and Satellite CD Radio, Inc. was formed as a
wholly owned subsidiary. On November 18, 1999, CD Radio
Inc. changed its name to Sirius Satellite Radio Inc. On
August 5, 2008, we changed our name from Sirius Satellite
Radio Inc. to Sirius XM Radio Inc. XM Satellite Radio Holdings
Inc., together with its subsidiaries, is operated as an
unrestricted subsidiary under the agreements governing our
existing indebtedness. As an unrestricted subsidiary,
transactions between the companies are required to comply with
various covenants in our respective debt instruments.
S-2
The
Offering
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Issuer |
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Sirius XM Radio Inc. |
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Shares of common stock offered by the selling stockholders |
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37,358,064 shares. |
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Shares of common stock outstanding as of March 18, 2009 |
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approximately 3,856,168,400 shares. |
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Nasdaq Global Select Market trading symbol |
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SIRI |
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Use of proceeds |
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We will not receive any of the proceeds from the sale by the
Selling Stockholders of any Shares. See Use of
Proceeds. |
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Risk factors |
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You should carefully consider the information set forth in the
Risk Factors section of this prospectus supplement
and accompanying prospectus as well as the other information
included in or incorporated by reference in this prospectus
supplement and the accompanying prospectus before deciding
whether to invest in our common stock. |
See Description of Capital Stock beginning on
page 17 of the accompanying prospectus for additional
information regarding the Shares to be sold pursuant to this
prospectus supplement.
S-3
RISK
FACTORS
An investment in our common stock involves certain risks. You
should carefully consider the risks described below, as well as
the other information included or incorporated by reference in
this prospectus supplement and accompanying prospectus before
making an investment decision. Our business, financial condition
or results of operations could be materially adversely affected
by any of these risks. The market or trading price of our common
stock could decline due to any of these risks, and you may lose
all or part of your investment. In addition, please read
Special Note About Forward-Looking Statements in
this prospectus supplement and the accompanying prospectus,
where we describe additional uncertainties associated with our
business and the forward-looking statements included or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. Please note that additional risks not
presently known to us or that we currently deem immaterial may
also impair our business and operations.
Certain risks relating to us and our business are described
under the heading Risk Factors in our Annual Report
on
Form 10-K
for the year ended December 31, 2008, filed with the SEC on
March 10, 2009, which is incorporated by reference into
this prospectus supplement, and which you should carefully
review and consider. Certain additional risks relating to XM
Holdings and XM Inc. specifically are described under the
heading Risk Factors in XM Holdings and XM
Inc.s Annual Report on
Form 10-K
for the year ended December 31, 2008, filed with the SEC on
March 13, 2009, which is incorporated by reference into
this prospectus supplement, and which you should carefully
review and consider.
Risks
Relating to Our Common Stock
The
Price of our Common Stock Historically has been Volatile. This
Volatility may Affect the Price at which you could Sell our
Common Stock, and the Sale of Substantial Amounts of our Common
Stock could Adversely Affect the Price of our Common
Stock.
The market price for our common stock has varied between a high
sales price of $3.94 per share and a low sales price of $0.05
since October 1, 2007. This volatility may affect the price
at which you could sell our common stock, and the sale of
substantial amounts of our common stock could adversely affect
the price of our common stock. The price for our common stock is
likely to continue to be volatile and subject to significant
price and volume fluctuations in response to market and other
factors, including the other factors discussed in the risks
related to our business and the business of XM Holdings;
variations in our quarterly operating results from our
expectations or those of securities analysts or investors;
downward revisions in securities analysts estimates;
competitive developments; and capital commitments.
In the past, following periods of volatility in the market price
of their stock, many companies have been the subject of
securities class action litigation. If we became involved in
securities class action litigation in the future, it could
result in substantial costs and diversion of our
managements attention and resources and could harm our
stock price, business, prospects, results of operations and
financial condition.
In addition, the broader stock market has recently experienced
significant price and volume fluctuations. This volatility has
affected the market prices of securities issued by many
companies for reasons unrelated to their operating performance
and may adversely affect the price of our common stock. In
addition, our announcements of our quarterly operating results,
changes in general conditions in the economy or the financial
markets and other developments affecting us, our affiliates or
our competitors could cause the market price of our common stock
to fluctuate substantially.
In addition, the sale of substantial amounts of our common stock
could adversely impact its price. As of March 18, 2009, we
had outstanding approximately 3,856 million shares of
common stock, options to purchase approximately 155 million
shares of our common stock (of which approximately
121 million were exercisable as of that date at prices
ranging from $0.49 to $30.50) and convertible notes convertible
into approximately 112 million shares (at conversion prices
ranging from $0.69 to $28.46). The sale or the availability for
sale of a large number of shares of our common stock in the
public market could cause the price of our common stock to
decline.
S-4
The
Issuance and Sale of our Common Stock upon the Exchange,
Conversion or Exercise of Outstanding Equity-Linked Securities
may Cause Volatility in our Stock Price and will Dilute the
Ownership Interest of Existing Stockholders.
Although our diluted earnings per share calculation treats the
stock options, restricted stock, restricted stock units,
warrants, convertible and exchangeable notes and stock based
awards under our stock incentive plan as if they were already
exchanged or converted into our common stock, sales in the
public market of our common stock issuable upon such exchange or
conversion could adversely affect prevailing market prices of
our common stock. Anticipated exchange or conversion of the
equity-linked securities into shares of our common stock could
depress the price of our common stock. In addition, the
existence of the equity-linked securities may encourage short
selling by market participants because the exchange or
conversion of such securities could be used to satisfy short
positions. Exchange or conversion of the outstanding
equity-linked securities will dilute the ownership interests of
existing stockholders.
In addition, we have in the past, and may continue in the future
to, issue shares of common stock in exchanges for certain of our
outstanding debt securities pursuant to Section 3(a)(9) of
the Securities Act. Sales in the public market of such shares of
common stock could also adversely affect prevailing market
prices of our common stock, and any such future shares will
dilute the ownership interests of existing stockholders.
We
have Never Paid Dividends and do not Anticipate Paying any
Dividends on our Common Stock in the Future, so any Short-Term
Return on your Investment will Depend on the Market Price of our
Common Stock.
We currently intend to retain any earnings to finance our
operations and growth. In addition, the terms and conditions of
certain of our and our subsidiaries debt instruments
restrict and limit payments or distributions in respect of
common stock.
Delaware
Law and our Charter Documents may Impede or Discourage a
Takeover, which could Cause the Market Price of Shares of our
Common Stock to Decline.
We are a Delaware corporation, and the anti-takeover provisions
of Delaware law impose various impediments to the ability of a
third party to acquire control of our company, even if a change
in control would be beneficial to our existing stockholders. In
addition, our board of directors has the power, without
stockholder approval, to designate the terms of one or more
series of preferred stock and issue shares of preferred stock,
including the adoption of a poison pill, which could
be used defensively if a takeover is threatened. The ability of
our board of directors to create and issue a new series of
preferred stock and certain provisions of Delaware law and our
certificate of incorporation and bylaws could impede a merger,
takeover or other business combination involving us or
discourage a potential acquirer from making a tender offer for
our common stock, which, under certain circumstances, could
reduce the market price of our common stock.
Liberty
Media Corporation has Significant Influence over our Business
and Affairs and its Interests may Differ from
ours.
Liberty Media Corporation holds preferred stock that is
convertible into 40% of the issued and outstanding shares of our
common stock. Pursuant to the terms of the preferred stock held
by Liberty Media, we cannot take certain actions, such as issue
equity or debt securities, without the consent of Liberty Media.
Additionally, upon expiration of the waiting period under
Hart-Scott-Rodino
Act, Liberty Media has the right to designate six members of our
fifteen-member Board of Directors. On March 17, 2009,
Gregory B. Maffei joined our board of directors. Mr. Maffei
has been the Chief Executive Officer and President of Liberty
Media Corporation since February 2006 and a director of Liberty
Media Corporation since November 2005. We expect Liberty Media
to designate the other directors shortly. As a result, Liberty
Media has significant influence over business and affairs. The
interests of Liberty Media may differ from the interests of
other holders of our common stock. The extent of Liberty
Medias stock ownership in us also may have the effect of
discouraging offers to acquire control of us and may preclude
holders of our common stock from receiving any premium above
market price for their shares that may be offered in connection
with any attempt to acquire control of us.
S-5
USE OF
PROCEEDS
We will not receive any of the proceeds from the sale by the
Selling Stockholders of any Shares.
PRICE
RANGE OF COMMON STOCK
Our common stock is traded on the Nasdaq Global Select Market
under the symbol SIRI. On March 18, 2009, the
closing sales price for our common stock was $0.37 per share, as
reported on the Nasdaq Global Select Market. The following table
sets forth, for the periods indicated, the reported high and low
sales price per share of our common stock on the Nasdaq Global
Select Market:
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High
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Low
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2009
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First Quarter (through March 18, 2009)
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$
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0.43
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$
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0.05
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2008
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Fourth Quarter
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0.69
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0.08
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Third Quarter
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2.75
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0.57
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Second Quarter
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2.92
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1.80
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First Quarter
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3.89
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2.51
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2007
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Fourth Quarter
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3.94
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2.76
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Third Quarter
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3.59
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2.71
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Second Quarter
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3.25
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2.66
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First Quarter
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4.26
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3.18
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As of March 18, 2009, there were approximately 850,000
holders of record of our common stock.
DIVIDEND
POLICY
We have never paid cash dividends on our capital stock. We
currently intend to retain earnings, if any, for use in our
business and do not anticipate paying any cash dividends in the
foreseeable future. Any future determination to pay cash
dividends will be at the discretion of our board of directors,
subject to applicable limitations under Delaware law, and will
be dependent upon our results of operations, financial condition
and other factors deemed relevant by our board of directors. A
number of our current debt instruments contain, and future debt
instruments may contain, provisions restricting our ability to
pay dividends.
S-6
SELLING
STOCKHOLDERS
The Shares being offered for sale under this prospectus
supplement and accompanying prospectus were originally issued by
us pursuant to the note purchase agreement, dated
February 13, 2009, among us, XM Satellite Radio Holdings
Inc., XM 1500 Eckington LLC, XM Investment LLC, and the Selling
Stockholders.
Pursuant to the note purchase agreement, XM Satellite Radio
Holdings Inc. agreed to issue to certain holders of its
outstanding 10% Convertible Notes due 2009 (the old
notes), including the Selling Stockholders, $172,485,000
in aggregate principal amount of Senior PIK Secured Notes due
2011 (the exchange notes) in exchange for a like
principal amount of old notes. The exchange notes are fully and
unconditionally guaranteed by XM 1500 Eckington LLC and XM
Investment LLC, our wholly-owned subsidiaries, and are secured
by a lien on certain real and personal property held by such
entities.
In addition, we paid these holders of old notes a fee, per
$1,000 aggregate principal amount of old notes exchanged, in the
amount of either (1) 833 shares of our common stock or
(2) $50 cash, at each holders election. We agreed
pursuant to the note purchase agreement to file this prospectus
supplement to register the Shares for resale.
The exchange notes and the common stock were issued in private
placement transactions exempt from the registration requirements
of the Securities Act, pursuant to Section 4(2) thereof.
The following table sets forth certain information on or around
the date hereof concerning the Shares that may be offered from
time to time by each Selling Stockholder pursuant to this
prospectus supplement. The information is based on information
provided by or on behalf of the Selling Stockholders. Other than
the transactions described above and except as set forth in the
table below, none of the Selling Stockholders or any of their
affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other
material relationship with us, XM Holdings or XM Inc. (or our,
XM Holdings or XM Inc.s predecessors or affiliates)
during the past three years.
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Percentage of
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Number of
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Outstanding
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Percentage of
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Shares of
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Shares of
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Outstanding
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Common Stock
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Common Stock
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Shares of
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Shares of
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Beneficially Owned
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Beneficially Owned
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Common Stock
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Common Stock
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Shares of
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After Sale of All
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After Sale of All
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Beneficially
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Beneficially
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Common Stock
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Shares That
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Shares That
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Owned Prior
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Owned Prior
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That May be
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May be
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May be
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Name
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to Offering
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to Offering(1)
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Offered Hereby
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Offered Hereby
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Offered Hereby
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Canyon Capital Arbitrage Master Fund, Ltd(2)
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4,837,348
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*
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3,656,728
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The Canyon Value Realization Fund (Cayman), Ltd(2)
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5,747,990
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*
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4,304,755
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Canyon Value Realization
Mac 18 Ltd.(2)
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465,473
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*
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366,444
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Canyon Value Realization Fund, LP(3)
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2,259,180
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*
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1,701,073
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Goldman, Sachs & Co.(4)
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42,050,394
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1.09
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%
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27,329,064
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Total
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55,360,385
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1.44
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%
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37,358,064
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* |
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Less than 1%. |
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(1) |
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Calculated based on
Rule 13d-3(d)(1)(i)
of the Securities Exchange Act of 1934, as amended, using
3,856,168,400 shares of common stock outstanding as of
March 18, 2009. |
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(2) |
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Canyon Capital Advisors LLC is the investment advisor for Canyon
Capital Arbitrage Master Fund, Ltd., The Canyon Value
Realization Fund (Cayman), Ltd. and Canyon Value Realization Mac
18 Ltd. and has the power to direct investments by Canyon
Capital Arbitrage Master Fund, Ltd., The Canyon Value
Realization Fund (Cayman), Ltd and Canyon Value Realization Mac
18 Ltd. The managing partners of Canyon Capital Advisors LLC are
Joshua S. Friedman, Mitchell R. Julia, and K. Robert Turner.
Canyon Capital Arbitrage Master Fund, Ltd. and The Canyon Value
Realization Fund (Cayman), Ltd. are Exempt Companies
incorporated in the Cayman Islands with limited liability. |
S-7
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(3) |
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The general partner of Canyon Value Realization Fund, LP is
Canpartners Investments III, L.P. and as such has the voting
power (the general partner of Canpartners Investments III, L.P.
is Canyon Capital Advisors LLC). Canyon Capital Advisors LLC is
the investment advisor of Canyon Value Realization Fund, L.P.
and as such, has the power to direct investments by Canyon Value
Realization Fund, L.P. The managing partners of Canyon Capital
Advisors LLC are Joshua S. Friedman, Mitchell R. Julis, and K.
Robert Turner. Canyon Value Realization Fund, L.P. is a limited
partnership formed in Delaware. |
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(4) |
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Goldman, Sachs & Co. is a wholly-owned subsidiary of
The Goldman Sachs Group, Inc., a publicly-traded company. In
accordance with the Securities and Exchange Commission Release
No. 34-39538
(January 12, 1998) (the Release), this filing
reflects the securities beneficially owned by certain operating
units (collectively, the Goldman Sachs Reporting
Units) of The Goldman Sachs Group, Inc. and its
subsidiaries and affiliates (collectively, GSG).
This filing does not reflect securities, if any, beneficially
owned by any operating units of GSG whose ownership of
securities is disaggregated from that of the Goldman Sachs
Reporting Units in accordance with the Release. The Goldman
Sachs Reporting Units disclaim beneficial ownership of the
securities beneficially owned by (i) any client accounts
with respect to which the Goldman Sachs Reporting Units or their
employees have voting or investment discretion, or both and
(ii) certain investment entities of which the Goldman Sachs
Reporting Units act as the general partner, managing general
partner or other manager, to the extent interests in such
entities are held by persons other than the Goldman Sachs
Reporting Units. |
S-8
CERTAIN
UNITED STATES FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO
NON-U.S.
HOLDERS
The following is a summary of certain United States federal
income and estate tax consequences of the purchase, ownership
and disposition of our common stock as of the date hereof.
Except where noted, this summary deals only with common stock
that is held as a capital asset by a
non-U.S. holder.
A
non-U.S. holder
means a person (other than a partnership) that is not for United
States federal income tax purposes any of the following:
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an individual citizen or resident of the United States;
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a corporation (or any other entity treated as a corporation for
United States federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or
the District of Columbia;
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an estate the income of which is subject to United States
federal income taxation regardless of its source; or
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a trust if it (1) is subject to the primary supervision of
a court within the United States and one or more United States
persons have the authority to control all substantial decisions
of the trust or (2) has a valid election in effect under
applicable United States Treasury regulations to be treated as a
United States person.
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This summary is based upon provisions of the Internal Revenue
Code of 1986, as amended (the Code), and
regulations, rulings and judicial decisions as of the date
hereof. Those authorities may be changed, perhaps retroactively,
so as to result in United States federal income and estate tax
consequences different from those summarized below. This summary
does not address all aspects of United States federal income and
estate taxes and does not deal with foreign, state, local or
other tax considerations that may be relevant to
non-U.S. holders
in light of their personal circumstances. In addition, it does
not represent a detailed description of the United States
federal income tax consequences applicable to you if you are
subject to special treatment under the United States federal
income tax laws (including if you are a United States
expatriate, controlled foreign corporation,
passive foreign investment company or a partnership
or other pass-through entity for United States federal income
tax purposes). We cannot assure you that a change in law will
not alter significantly the tax considerations that we describe
in this summary.
If a partnership holds our common stock, the tax treatment of a
partner will generally depend upon the status of the partner and
the activities of the partnership. If you are a partner of a
partnership holding our common stock, you should consult your
tax advisors.
If you are considering the purchase of our common stock, you
should consult your own tax advisors concerning the particular
United States federal income and estate tax consequences to you
of the ownership of the common stock, as well as the
consequences to you arising under the laws of any other taxing
jurisdiction.
Dividends
Dividends paid to a
non-U.S. holder
of our common stock generally will be subject to withholding of
United States federal income tax at a 30% rate or such lower
rate as may be specified by an applicable income tax treaty.
However, dividends that are effectively connected with the
conduct of a trade or business by the
non-U.S. holder
within the United States (and, if required by an applicable
income tax treaty, are attributable to a United States permanent
establishment) are not subject to the withholding tax, provided
certain certification and disclosure requirements are satisfied.
Instead, such dividends are subject to United States federal
income tax on a net income basis in the same manner as if the
non-U.S. holder
were a United States person as defined under the Code. Any such
effectively connected dividends received by a foreign
corporation may be subject to an additional branch profits
tax at a 30% rate or such lower rate as may be specified
by an applicable income tax treaty.
S-9
A
non-U.S. holder
of our common stock who wishes to claim the benefit of an
applicable treaty rate and avoid backup withholding, as
discussed below, for dividends will be required (a) to
complete Internal Revenue Service
Form W-8BEN
(or other applicable form) and certify under penalty of perjury
that such holder is not a United States person as defined under
the Code and is eligible for treaty benefits or (b) if our
common stock is held through certain foreign intermediaries, to
satisfy the relevant certification requirements of applicable
United States Treasury regulations. Special certification and
other requirements apply to certain
non-U.S. holders
that are pass-through entities rather than corporations or
individuals.
A
non-U.S. holder
of our common stock eligible for a reduced rate of United States
withholding tax pursuant to an income tax treaty may obtain a
refund of any excess amounts withheld by filing an appropriate
claim for refund with the Internal Revenue Service.
Gain on
Disposition of Common Stock
Any gain realized on the disposition of our common stock
generally will not be subject to United States federal income
tax unless:
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the gain is effectively connected with a trade or business of
the
non-U.S. holder
in the United States (and, if required by an applicable income
tax treaty, is attributable to a United States permanent
establishment of the
non-U.S. holder);
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the
non-U.S. holder
is an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met; or
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we are or have been a United States real property holding
corporation for United States federal income tax purposes.
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An individual
non-U.S. holder
described in the first bullet point immediately above will be
subject to tax on the net gain derived from the sale under
regular graduated United States federal income tax rates. An
individual
non-U.S. holder
described in the second bullet point immediately above will be
subject to a flat 30% tax on the gain derived from the sale,
which may be offset by United States source capital losses, even
though the individual is not considered a resident of the United
States. If a
non-U.S. holder
that is a foreign corporation falls under the first bullet point
immediately above, it will be subject to tax on its net gain in
the same manner as if it were a United States person as defined
under the Code and, in addition, may be subject to the branch
profits tax equal to 30% of its effectively connected earnings
and profits or at such lower rate as may be specified by an
applicable income tax treaty.
We believe we are not and do not anticipate becoming a
United States real property holding corporation for
United States federal income tax purposes.
Federal
Estate Tax
Common stock held by an individual
non-U.S. holder
at the time of death will be included in such holders
gross estate for United States federal estate tax purposes,
unless an applicable estate tax treaty provides otherwise.
Information
Reporting and Backup Withholding
We must report annually to the Internal Revenue Service and to
each
non-U.S. holder
the amount of dividends paid to such holder and the tax withheld
with respect to such dividends, regardless of whether
withholding was required. Copies of the information returns
reporting such dividends and withholding may also be made
available to the tax authorities in the country in which the
non-U.S. holder
resides under the provisions of an applicable income tax treaty.
A
non-U.S. holder
will be subject to backup withholding for dividends paid to such
holder unless such holder certifies under penalty of perjury
that it is a
non-U.S. holder
(and the payor does not have actual knowledge or reason to know
that such holder is a United States person as defined under the
Code), or such holder otherwise establishes an exemption.
S-10
Information reporting and, depending on the circumstances,
backup withholding will apply to the proceeds of a sale of our
common stock within the United States or conducted through
certain United States-related financial intermediaries, unless
the beneficial owner certifies under penalty of perjury that it
is a
non-U.S. holder
(and the payor does not have actual knowledge or reason to know
that the beneficial owner is a United States person as defined
under the Code), or such owner otherwise establishes an
exemption. Any amounts withheld under the backup withholding
rules may be allowed as a refund or a credit against a
non-U.S. holders
United States federal income tax liability provided the required
information is furnished to the Internal Revenue Service.
S-11
PLAN OF
DISTRIBUTION
The Selling Stockholders, including their transferees, pledgees
or donees or their successors, may from time to time offer and
sell the Shares directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the
form of discounts, commissions or concessions from the Selling
Stockholders or the purchasers of the Shares. These discounts,
commissions or concessions as to any particular underwriter,
broker-dealer or agent may be in excess of those customary in
the types of transactions involved. Notwithstanding the
foregoing, in no event will the method of distribution take the
form of an underwritten offering of our common stock without our
prior agreement.
The Shares may be sold in one or more transactions at:
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fixed prices;
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prevailing market prices at the time of sale;
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varying prices determined at the time of sale; or
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negotiated prices.
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These prices will be determined by the Selling Stockholders or
by agreement between such Selling Stockholders and underwriters,
broker-dealers or agents. The aggregate proceeds to the Selling
Stockholders from the sale of the Shares offered by them will be
the purchase price of the Shares less discounts, commissions and
concessions, if any. Each of the Selling Stockholders reserves
the right to accept and, together with its agents from time to
time, to reject, in whole or in part, any proposed purchase of
Shares to be made directly or through agents. We will not
receive any of the proceeds from this offering.
The sales described above may be effected in transactions:
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on any national securities exchange or quotation service on
which the Shares may be listed at the time of sale;
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in the over-the-counter market;
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otherwise than on such exchanges or services or in the
over-the-counter market;
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through the writing of options; or
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any combination of such methods of sale.
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These transactions may include block transactions or crosses.
Crosses are transactions in which the same broker acts as an
agent on both sides of the trade.
In connection with the sale of any Shares, the Selling
Stockholders may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of
Shares in the course of hedging the positions they assume. The
Selling Stockholders may also sell shares of our common stock
short and deliver such Shares to close out their short
positions, or loan or pledge such Shares to broker-dealers that
in turn may sell such securities.
In order to comply with the securities laws of some states, if
applicable, the Shares may be sold in these jurisdictions only
through registered or licensed brokers or dealers. In addition,
in some states the Shares may not be sold unless they have been
registered or qualified for sale or an exemption from
registration or qualification requirements is available and is
complied with.
The Selling Stockholders and any underwriters, broker-dealers or
agents that participate in the sale of the Shares may be
underwriters within the meaning of
Section 2(11) of the Securities Act. Any discounts,
commissions, concessions or profit they earn on any resale of
Shares may be deemed to be underwriting discounts or commissions
under the Securities Act. Selling Stockholders who are
underwriters within the meaning of
Section 2(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act and may
be subject to statutory liabilities, including liability under
Sections 11 and 12 of the Securities Act and
Rule 10b-5
under the Exchange Act. The Selling Stockholders have
acknowledged that they
S-12
understand their obligation to comply, and they have agreed to
comply, with the prospectus delivery and other provisions of the
Securities Act and the Exchange Act and the rules and
regulations thereunder, particularly Regulation M. The
Selling Stockholders have agreed that neither they nor any
person acting on their behalf will engage in any transaction in
violation of such provisions.
To our knowledge, there are currently no plans, arrangements or
understandings between any Selling Stockholder and any
underwriter, broker-dealer or agent regarding the sale of the
Shares. Selling Stockholders may ultimately not sell all, and
conceivably may not sell any, of the Shares offered by them
under this prospectus supplement. In addition, we cannot assure
you that a selling stockholder will not transfer, devise or gift
the Shares by other means not described in this prospectus
supplement. Furthermore, any securities covered by this
prospectus supplement which qualify for sale pursuant to
Rule 144 or Rule 144A of the Securities Act may be
sold under Rule 144 or Rule 144A rather than pursuant
to this prospectus supplement.
To the extent required, the specific Shares to be sold, the
names of the Selling Stockholders, the respective purchase
prices and public offering prices, the names of any agent,
dealer or underwriter and any applicable commissions or
discounts with respect to a particular offer will be set forth
in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement to which
this prospectus supplement relates.
We have agreed, among other things, to pay certain expenses of
the registration statement to which this prospectus supplement
relates. We estimate that our total expenses associated with
this offering of Shares by the Selling Stockholders will be
approximately $120,000. We have agreed to indemnify the Selling
Stockholders against certain liabilities, including liabilities
under the Securities Act of 1933, as amended, or to contribute
to payments the Selling Stockholders may be required to make
because of any of those liabilities.
S-13
VALIDITY
OF SECURITIES
The validity of the common stock offered by this prospectus
supplement has been passed upon for us by Simpson
Thacher & Bartlett LLP, New York, New York.
EXPERTS
The consolidated financial statements and financial schedule of
Sirius XM Radio Inc. and subsidiaries as of December 31,
2008, and for the year ended December 31, 2008, and
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2008
have been incorporated by reference herein in reliance upon the
reports of KPMG LLP, independent registered public accounting
firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
The consolidated financial statements and financial schedule of
Sirius XM Radio Inc. (formerly Sirius Satellite Radio Inc.) and
subsidiaries as of December 31, 2007, and for each of the
years in the two-year period ended December 31, 2007, have
been incorporated by reference herein in reliance upon the
report of Ernst & Young LLP, independent registered
public accounting firm, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and
auditing.
The consolidated financial statements and financial schedule of
XM Satellite Radio Holdings Inc. and subsidiaries (Successor) as
of December 31, 2008 and of XM Satellite Radio Holdings
Inc. and subsidiaries (Predecessor) as of December 31,
2007, and for the period from August 1, 2008 to
December 31, 2008 (Successor period) and from
January 1, 2008 to July 31, 2008 and for each of the
years in the two-year period ended December 31, 2007
(Predecessor periods) and managements assessment of the
effectiveness of internal control over financial reporting as of
December 31, 2008, have been incorporated by reference
herein in reliance upon the report of KPMG LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing. The audit report dated March 13,
2009 refers to the acquisition of XM Satellite Radio Holdings
Inc., effective July 28, 2008, by Vernon Merger
Corporation, a wholly owned subsidiary of Sirius XM Radio Inc.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference in
this prospectus supplement other information we file with it,
which means that we can disclose important information to you by
referring you to those documents. This prospectus supplement
incorporates important business and financial information about
us that is not included in or delivered with this prospectus
supplement. The information we file later with the SEC will
automatically update and supersede the information included in
and incorporated by reference in this prospectus supplement. We
incorporate by reference the documents listed below and any
future filings made by us with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934.
1. Our Annual Report on
Form 10-K
for the year ended December 31, 2008.
2. Our Current Reports on
Form 8-K
filed on October 1, 2008, December 22, 2008,
January 5, 2009, January 14, 2009, February 17,
2009 (two
Form 8-K
filings), March 2, 2009, March 6, 2009, March 11,
2009 and March 18, 2009.
3. Our Proxy Statement on Schedule 14A filed on
November 4, 2008.
4. The description of our common stock contained in our
Registration Statement on
Form 8-A
filed pursuant to Section 12(b) of the Securities Exchange
Act of 1934 including any amendment or report updating such
description.
In addition, we incorporate by reference the documents listed
below and any future filings made by XM Holdings and XM with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934.
1. XM Holdings and XMs Annual Report on
Form 10-K
for the year ended December 31, 2008.
2. XM Holdings Current Reports on
Form 8-K
filed on March 12, 2009.
S-14
The referenced documents have been filed with the SEC and are
available from the SECs internet site and public reference
room described under Where You Can Find More
Information. You may also request a copy of these filings,
at no cost, by writing or calling us at the following address or
telephone number:
Sirius XM Radio Inc.
1221 Avenue of the Americas,
36th floor
New York, New York 10020
Phone:
(212) 584-5100
Attention: Investor Relations
You should rely only on the information incorporated by
reference or provided in this prospectus supplement. We have not
authorized anyone else to provide you with different information.
WHERE YOU
CAN FIND MORE INFORMATION
We, XM Holdings and XM file annual, quarterly and current
reports, proxy statements and other information with the SEC.
Our SEC filings can be read and copied at the SECs public
reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room. Our SEC filings, XM Holdings SEC filings and
XMs SEC filings are also available over the Internet at
the SECs website at
http://www.sec.gov
and through the Nasdaq Stock Market, One Liberty Plaza, New
York, New York, 10006, on which our common stock is listed.
S-15