SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. __)(1)
XM Satellite Radio Holdings Inc.
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(Name of Issuer)
Class A Common Stock, Par Value $0.01 per share
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(Title of Class of Securities)
983759-10-1
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(CUSIP Number)
Hal B. Perkins, Esq.
Telcom-XM Investors, L.L.C.
211 North Union Street, Suite 300
Alexandria, VA 22314
(703) 706-3800
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 8, 1999
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box |_|.
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See Rule
13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
CUSIP No. 983759-10-1 SCHEDULE 13D
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TELCOM-XM INVESTORS, L.L.C.
Tax ID #54-1948896
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
Not Applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
-0-
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,696,626
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON -0-
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,696,626
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,696,626 (see Item 5)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |X|
See Item 5.
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.29% (see Item 5)
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14 TYPE OF REPORTING PERSON*
OO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 983759-10-1 SCHEDULE 13D
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TELECOM VENTURES L.L.C.
Tax ID #54-1695113
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
Not Applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
-0-
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,696,626
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON -0-
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,696,626
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,696,626 (see Item 5)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |X|
See Item 5.
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.29% (see Item 5)
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14 TYPE OF REPORTING PERSON*
OO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 983759-10-1 SCHEDULE 13D
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
CHERRYWOOD HOLDINGS, INC.
Tax ID #54-1314785
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
Not Applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Kansas
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7 SOLE VOTING POWER
-0-
--------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 2,696,626
OWNED BY --------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON -0-
WITH --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,696,626
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,696,626 (see Item 5)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |X|
See Item 5.
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.29% (see Item 5)
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer.
This statement on Schedule 13D (the "Statement") relates to the
Class A Common Stock, par value $0.01 per share (the "Class A Stock"), of XM
Satellite Radio Holdings Inc., a Delaware corporation (the "Issuer"). The
Issuer's principal executive office is located at 1250 23rd Street, N.W.,
Washington, DC 20037-1100.
The Reporting Persons (as defined below) have entered into a Joint
Filing Agreement, dated October 18, 1999, a copy of which is attached hereto as
Schedule I.
Item 2. Identity and Background.
This Statement is being filed by Telcom-XM Investors, L.L.C., a
Delaware limited liability company ("Telcom-XM"), Telcom Ventures, L.L.C., a
Delaware limited liability company ("Telcom Ventures"), Cherrywood Holdings,
Inc., a Kansas corporation ("Cherrywood") (each, a "Reporting Person"). Each
of Dr. Rajendea Singh ("Dr. Singh") and Mrs. Neera Singh ("Mrs. Singh") own
approximately 40% of the outstanding capital stock of Cherrywood and Mrs. Singh
is a trustee for trusts holding in the aggregate approximately 20% of such stock
(the "Trusts"). Cherrywood holds a 75% membership interest in Telcom Ventures,
but as a result of contractual arrangement with other members of Telcom
Ventures, has a 100% interest in Telcom Ventures for purposes of its investment
in Telcom-XM. Telcom Ventures holds a 96% membership interest in Telcom-XM. Each
of Cherrywood, Telcom Venture and Telcom-XM is a private investment firm. Telcom
Ventures specializes in making investments in the telecommunications industry.
The address of the principal business and the principal offices of each of the
Reporting Persons is 211 N. Union Street, Suite 300, Alexandria, Virginia 22314.
For information with respect to the identity and principal
occupation of each (i) executive officer and director of Cherrywood see Schedule
II attached hereto; (ii) member of the Members Committee (each, a "director")
and executive officer of Telcom Ventures see Schedule III attached hereto; and
(iii) executive officer and director of Telcom-XM see Schedule IV attached
hereto.
During the last five years, neither any Reporting Person, nor, to
the best knowledge of each Reporting Person, any person identified in Schedules
II, III and IV has (i) been convicted in criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such a proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
All Reporting Persons and, to the best knowledge of each Reporting
Person, all persons identified in Schedules II, III and IV, are citizens of the
United States.
Item 3. Source and Amount of Funds or Other Consideration.
<PAGE>
Beneficial ownership of the 2,696,626 shares of Class A Stock owned
of record by Telcom-XM as of the date of this Statement was acquired prior to
the consummation of an initial public offering of 10,000,000 shares of Class A
Stock (the "Offering") and prior to the Issuer becoming subject to Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
details of the purchase are set forth below.
On June 7, 1999, Telcom-XM entered into the Note Purchase Agreement,
by and between the Issuer and certain investors signatories thereto (the "Note
Agreement"), pursuant to which Telcom-XM purchased a Series A Subordinated
Convertible Note of the Issuer due December 31, 2004 (the "Note"), in the
aggregate principal amount of $25,000,000. Telcom-XM used its working capital to
acquire the Note. Pursuant to the Note Agreement, the Issuer issued $250,000,000
of Series A Subordinated Convertible Notes due December 31, 2004 to several new
strategic and financial investors including Telcom-XM, and the Issuer used
$75,000,000 of the proceeds from these notes to repay the outstanding loan
payable to Worldspace, Inc., a Maryland corporation ("Worldspace"). The Note
Agreement provided for automatic conversion of the Note held by Telcom-XM into
Class A Stock of the Issuer upon the closing of a firm commitment underwritten
public offering of common stock of the Issuer.
On October 8, 1999, following the completion of the Offering, the
Note owned by Telcom-XM converted into 2,696,626 shares of Class A Stock at a
price of $9.52 per shares. As a result of this conversion, as of October 8,
1999, Telcom-XM owned an aggregate of 2,696,626 shares of Class A Stock.
Item 4. Purpose of Transaction.
The 2,696,626 shares of Class A Stock owned of record by Telcom-XM
as of the date of this Statement were acquired by Telcom-XM as a result of the
conversion of the Note acquired for $25,000,000 on July 7, 1999, prior to the
consummation of the Offering, and prior to the Issuer becoming subject to
Section 12(g) of the Exchange Act. Telcom-XM has acquired the Note as an
investment in the regular course of business.
Certain of Telcom-XM's rights with respect to the Issuer are
governed by a shareholders' agreement dated as of July 7, 1999, by and among the
Issuer, Telcom-XM, and certain other significant shareholders of the Issuer (the
"Shareholders' Agreement"). The Shareholders Agreement is incorporated herein by
reference as Exhibit I. Pursuant to the Shareholders' Agreement, one of the
members of the Issuer's board of directors was appointed by Telcom-XM and two
other parties to the Shareholders' Agreement.
Telcom-XM's rights with respect to its shares of Class A Stock are
also governed by the TCM Group Agreement dated July 7, 1999, by and among
Telcom-XM, Columbia XM Radio Partners, LLC, a Virginia limited liability company
("Columbia"),
<PAGE>
Madison Dearborn Capital Partners III, L.P., a Delaware limited partnership
("MDCP"), Madison Dearborn Special Equity III, L.P., a Delaware limited
partnership ("MDSE") and Special Advisors Fund I, LLC, a Delaware limited
liability company ("SAFI" and, together with MDCP and MDSE, "Madison") (the "TCM
Group Agreement"). The TCM Group Agreement provides for good faith cooperation
among the parties thereto regarding the exercise of registration rights and the
appointment of a member of the Issuer's board of directors. Certain other
material provisions of the Shareholders' Agreement and the TCM Group Agreement
are described in more detail in Item 6 below. The TCM Group Agreement is
attached hereto as Exhibit III.
There are certain restrictions on Telcom-XM's ability to sell or
otherwise transfer its shares of Class A Stock. Under the Shareholders'
Agreement, except for affiliated transactions and certain other permitted
transfers, Telcom-XM may not transfer any shares of Class A Stock until the date
which is one year from the issuance of the Note.
In addition, Telcom-XM signed a "lock-up" agreement with Bear,
Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette Securities Corporation, the
lead underwriters for the Offering. Pursuant to this agreement, Telcom-XM has
agreed not to sell, offer to sell, contract to sell, pledge, hypothecate, sell
any option or contract to purchase or otherwise transfer or dispose of, directly
or indirectly, any shares of Class A Stock, for a period of 180 days after the
effective date of the registration statement filed by the Issuer in the
Offering.
Except as described above in this Item 4 and below in Item 6, the
Reporting Persons do not have any plans or proposals that relate to or would
result in any of the actions or events specified in clauses (a) through (j) of
Item 4 of Schedule 13D. Notwithstanding the foregoing, and subject to the
restrictions under the Shareholders' Agreement and the TCM Group Agreement, the
Reporting Persons may determine to change their investment intent with respect
to the Issuer at any time in the future. Subject to the restrictions under the
Shareholders' Agreement and the TCM Group Agreement, the Reporting Persons
intend to vote their shares as they deem appropriate from time to time. In
determining from time to time whether to sell the shares of the Issuer's Class A
Stock (and in what amounts) or to retain such shares, the Reporting Persons will
take into consideration such factors as they deem relevant, including the
business and prospects of the Issuer, anticipated future developments concerning
the Issuer, existing and anticipated market conditions from time to time,
general economic conditions, regulatory matters, and other opportunities
available to the Reporting Persons. The Reporting Persons reserve the right to
acquire additional securities of the Issuer in the open market, in privately
negotiated transactions (which may be with the Issuer or with third parties) or
otherwise, to dispose of all or a portion of their holdings of securities of the
Issuer or to change their intention with respect to any or all of the matters
referred to in this Item 4.
Item 5. Interest in Securities of the Issuer.
After giving effect to the issuance of 10,000,000 shares of Class A
Stock by the Issuer in the Offering, and based on information provided to the
Reporting Persons
<PAGE>
by the Issuer (the "Available Data"), there were 26,194,471 shares of Class A
Stock of the Issuer outstanding on October 8, 1999.
As of October 8, 1999, each of Cherrywood, Telcom Ventures and
Telcom-XM beneficially owned 2,696,626 shares of Class A Stock, which represents
approximately 10.29% of the Class A Stock outstanding. As of October 8, 1999,
Dr. Singh beneficially owned 2,723,383 shares of Class A Stock, which represents
approximately 10.4% of the Class A Stock outstanding. Subject to the
restrictions and agreements described in Item 4 above and in Item 6 below, the
Reporting Persons have shared power to vote (or to direct the vote) and shared
power to dispose (or to direct the disposition) of 2,696,626 shares of Class A
Stock. Each of Dr. Singh, Mrs. Singh and the Trusts expressly disclaims
beneficial ownership of 2,696,626 shares of Class A Stock beneficially owned by
Cherrywood, Telcom Ventures and Telcom-XM.
In July 1999, Dr. Singh as a director of the Issuer was granted an
option to purchase 26,757 shares of our Class A common stock at $9.52 per share.
These options are immediately exercisable and expire on the tenth anniversary of
the date of issuance. Dr. Singh has sole power to vote (or to direct the vote)
and sole power to dispose (or to direct the disposition) of 26,757 shares of
Class A Stock.
The Trusts purchased 80,000 shares of Class A Stock of the Issuer in
the Offering, at a purchase price of $12.00 per share, the initial public
offering price of the Class A Stock. The Trusts have sole power to vote (or to
direct the vote) and sole power to dispose (or to direct the disposition) of
80,000 shares of Class A Stock. The Reporting Persons expressly disclaim
beneficial ownership of the shares beneficially owned by the Trusts.
To the best knowledge of the Reporting Persons, none of the
Reporting Persons, nor any of their executive officers and directors,
beneficially own shares of Class A Stock of the Issuer other than as set forth
herein.
Telcom-XM may be deemed to be part of a group (within the meaning of
Section 13(d)(3) of the Exchange Act) with the following entities by virtue of
the Shareholders' Agreement: (1) General Motors Corporation ("General Motors");
(2) DIRECTV Enterprises, Inc. ("DIRECTV"); (3) Clear Channel Investments, Inc.
("Clear Channel"); (4) American Mobile Satellite Corporation ("American
Mobile"); (5) Columbia; and (6) Madison. Telcom-XM and each of the other
Reporting Persons expressly disclaims beneficial ownership of the shares of
Class A Stock of the Issuer held by General Motors, DIRECTV, Clear Channel,
American Mobile, Columbia, or Madison, and the filing of this Statement by the
Reporting Persons shall not be construed as an admission by the Reporting
Persons that they are, for purposes of Section 13(d) of the Exchange Act, the
beneficial owner of any of the shares of Class A Stock of the Issuer held by
General Motors, DIRECTV, Clear Channel, American Mobile, Columbia or Madison.
Based solely upon the Available Data, the Reporting Persons believe
that, as of October 8, 1999 (the closing date of the Offering), General Motors,
DIRECTV, Clear Channel, American, Columbia and Madison beneficially owned the
number of shares of Class A Stock of the Issuer set forth in the table below,
constituting in each case that percentage of the Class A Stock of the Issuer
outstanding on October 8, 1999 set forth in the table.
Name of Beneficial Owner Number of Shares Percentage
------------------------ ---------------- ----------
General Motors 11,106,504 (1) 30.03%
DIRECTV 5,553,252 (2) 17.58%
Clear Channel 8,329,877 31.80%
American Mobile 18,072,176 (3) 41.00%
Columbia 2,776,626 10.60%
<PAGE>
MDCP 2,702,200 10.31%
MDSE 58,247 *
SAFI 16,179 *
------------------
* Less than 1%
(1) Includes 10,786,504 shares of Class A Stock issuable upon
conversion of Series A convertible preferred stock of the Issuer,
5,393,252 of which are owned by DIRECTV, a subsidiary of General
Motors. The shares of Class A Stock issuable upon conversion of the
Series A convertible preferred stock were deemed to be outstanding
for the purpose of computing the percentage of the Class A Stock
owned by General Motors, but not for the purpose of computing the
percentage of Class A Stock owned by any other person.
(2) Includes 5,393,252 shares of Class A Stock issuable upon conversion
of Series A convertible preferred stock of the Issuer. The shares of
Class A Stock issuable upon conversion of the Series A convertible
preferred stock were deemed to be outstanding for the purpose of
computing the percentage of the Class A Stock owned by DIRECTV, but
not for the purpose of computing the percentage of Class A Stock
owned by any other person.
(3) Includes 17,872,176 shares of Class A Stock issuable upon conversion
of American Mobile's 17,872,176 shares of Class B common stock, $.01
par value per share (the "Class B Stock") of the Issuer. The shares
of Class A Stock issuable upon conversion of the Class B Stock were
deemed to be outstanding for the purpose of computing the percentage
of the Class A Stock owned by American Mobile, but not for the
purpose of computing the percentage of Class A Stock owned by any
other person.
Except for the transactions reported in this Statement, the
Reporting Persons have not engaged in any other transactions in the Issuer's
Class A Stock within the past 60 days.
To the best knowledge of the Reporting Persons, none the Reporting
Persons' executive officers or directors has effected any transactions in the
Class A Stock within the past 60 days.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that: (1) on October 8, 1999, each of General Motors and DIRECTV
acquired from the Issuer in a private placement 5,393,252 shares of the Issuer's
Series A convertible preferred stock upon conversion of $50,000,000 principal
amount (plus accrued interest) of convertible subordinated notes previously
issued to each of General Motors and DIRECTV by the Issuer, at a conversion
price of approximately $9.52 per share, and (2) on October 8, 1999, each of
General Motors and DIRECTV acquired 160,000 shares of the Issuer's
<PAGE>
Class A Stock in the Offering, at a purchase price of $12.00 per share, the
initial public offering price of the Class A Stock.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that: (1) on October 8, 1999, Clear Channel acquired from the
Issuer in a private placement 8,089,877 shares of Class A Stock upon conversion
of $75,000,000 principal amount (plus accrued interest) of a convertible
subordinated note previously issued to Clear Channel by the Issuer, at a
conversion price of approximately $9.52 per share, and (2) on October 8, 1999,
Clear Channel acquired 240,000 shares of the Issuer's Class A Stock in the
Offering, at a purchase price of $12.00 per share, the initial public offering
price of the Class A Stock.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that: (1) on October 8, 1999 Columbia acquired from the Issuer
in a private placement 2,696,626 shares of Class A Stock upon conversion of
$25,000,000 principal amount (plus accrued interest) of convertible subordinated
notes previously issued to Columbia by the Issuer, at a conversion price of
approximately $9.52 per share, and (2) on October 8, 1999, Columbia acquired
80,000 shares of the Issuer's Class A Stock in the Offering, at a purchase price
of $12.00 per share, the initial public offering price of the Class A Stock.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that: (1) on October 8, 1999, MDCP acquired from the Issuer in a
private placement 2,622,200 shares of Class A Stock upon conversion of
$24,310,000 principal amount (plus accrued interest) of convertible subordinated
notes previously issued to MDCP by the Issuer, at a conversion price of
approximately $9.52 per share, and (2) on October 8, 1999, MDCP acquired 80,000
shares of the Issuer's Class A Stock in the Offering, at a purchase price of
$12.00 per share, the initial public offering price of the Class A Stock.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that on October 8, 1999, MDSE acquired from the Issuer in a
private placement 58,247 shares of Class A Stock upon conversion of $540,000
principal amount (plus accrued interest) of convertible subordinated notes
previously issued to MDSE by the Issuer, at a conversion price of approximately
$9.52 per share.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that on October 8, 1999, SAFI acquired from the Issuer in a
private placement 16,179 shares of Class A Stock upon conversion of $150,000
principal amount (plus accrued interest) of convertible subordinated notes
previously issued to SAFI by the Issuer, at a conversion price of approximately
$9.52 per share.
Based solely upon the information set forth in the Issuer's
Prospectus, dated October 5, 1999, and on the Available Data, the Reporting
Persons believe that: (1) in January 1999, American Mobile loaned the Issuer
approximately $21.4 million, in
<PAGE>
exchange for shares of common stock of the Issuer and a note convertible into
additional shares of common stock of the Issuer, (2) on July 7, 1999, American
Mobile acquired from XM Ventures, a trust established by Worldspace, all of
Worldspace's debt and equity interests in the Issuer, other than a $75 million
loan from Worldspace to the Issuer, in exchange for 8,614,244 shares of American
Mobile's common stock, par value $.01 per share (the "Exchange Transaction"),
(3) immediately after the Exchange Transaction, the Issuer reorganized its
capital structure and the shares of common stock of the Issuer owned by American
Mobile were exchanged on a one-for-one basis for shares of Class B Stock and as
a result, American Mobile owned 125 shares of Class B Stock of the Issuer, which
constituted 100% of the outstanding Class B Stock, and which were the only
shares of the Issuer's capital stock then outstanding; also as part of this
reorganization, certain of the debt interests acquired by American Mobile in the
Exchange Transaction were exchanged for a single convertible note issued by the
Issuer, convertible into shares of the Issuer's Class B common stock, (4) in
September 1999, the Issuer effected a 53,514 for 1 stock split and as a result,
the 125 shares of Class B Stock then owned by American Mobile were exchanged for
6,689,250 shares of Class B Stock, (5) on October 8, 1999, upon the completion
of the Offering, all of the convertible notes of the Issuer owned by American
Mobile converted into 11,182,926 shares of Class B Stock and as a result of this
conversion, as of October 8, 1999, American Mobile owned an aggregate of
17,872,176 shares of Class B Stock, and (6) on October 8, 1999, American Mobile
acquired 200,000 shares of the Issuer's Class A Stock in the Offering, at a
purchase price of $12.00 per share, the initial public offering price of the
Class A Stock.
The Reporting Persons do not know of any other person having the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the shares of Class A Stock of the Issuer
beneficially owned by the Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
Shareholders' Agreement
Set forth below is a description of certain material provisions of
the Shareholders' Agreement:
Governance Provisions. The Issuer's board of directors consists of
nine members, one of whom is selected by a majority in interest of Colombia,
Madison and Telcom-XM, six of whom are selected by certain other shareholders,
and two independent directors, one of whom must be approved by American Mobile,
and one of whom must be approved by a majority of certain other shareholders.
Following receipt of approval of the FCC to transfer control of the Issuer from
American Mobile to a diffuse group of shareholders, the Issuer's board of
directors will consist of nine members, one of whom will be selected by a
majority in interest of Colombia, Madison and Telcom-XM, five of whom will be
selected by certain other shareholders, two of whom will be independent
directors of recognized industry experience and stature whose nominations must
be approved by American Mobile and a majority of certain other shareholders
including Telcom-XM, and one of whom will be the Issuer's President and Chief
Executive
<PAGE>
Officer. The foregoing board rights are subject to the parties to the
Shareholders' Agreement maintaining their original investment or certain minimum
share percentages in the Issuer.
Restrictions on Transfer of Securities. As described in Item 4
above, except for affiliated transactions and certain other permitted transfers,
Telcom-XM may not transfer any shares of Class A Stock until the date which is
one year from the issuance of the Note.
Registration Rights Agreement
In addition to the contracts and agreements described above and in
Item 4 above, Telcom-XM has certain registration rights with respect to the
shares of Class A Stock, pursuant to a registration rights agreement, dated July
7, 1999 (the "Registration Rights Agreement"), by and among the Issuer,
Telcom-XM and certain other stockholders named therein. Commencing July 7, 2000,
Telcom-XM and the other stockholders that are party to the Registration Rights
Agreement are entitled to demand registration with respect to their Class A
Stock, including shares issuable upon conversion of other securities. Together
with Columbia and Madison, Telcom-XM is entitled to make one demand. These
rights are subject to the Issuer's right to defer the timing of a demand
registration and an underwriters' right to cut back shares in an underwritten
offering. In addition to these demand rights, following the Issuer's
commencement of commercial operation, parties to the Registration Rights
Agreement holding, in the aggregate, the shares of Class A Stock having a fair
market value of not less than $25,000,000, may request the Issuer to file a
registration statement pursuant to Rule 415. Parties to the Registration Rights
Agreement also have rights to include their Class A Stock in registered
offerings initiated by the Issuer, other than an offering for high yield debt.
TCM Group Agreement
The TCM Group Agreement provides that the parties thereto agree
that: (1) they will make good faith efforts to reach a unanimous decision
regarding the rights granted in the Registration Rights Agreement, (2) they will
make a good faith effort to select one individual to be their representative on
the Issuer's Board of Directors in accordance with the Shareholders' Agreement,
and (3) that each party may transfer or assign its Issuer securities to
affiliates provided that such affiliate agrees to become a party the TCM Group
Agreement and in the event a party desires to make a transfer or assignment of
its Issuer securities which would bring such party's ownership in the Issuer
below 6% equity interest level (on a fully diluted and as-converted basis) such
party shall first offer such securities to the other parties.
Other than the Shareholders' Agreement, the Registration Rights
Agreement and the TCM Group Agreement, there are no contracts, arrangements,
understandings, or relationships between the Reporting Persons or, to the best
of their knowledge, any executive officer or director of the Reporting Persons,
and any other person with respect to any securities of the Issuer, including any
contract, arrangement, understanding or relationship concerning the transfer or
the voting of any securities of the
<PAGE>
Issuer, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
The documents which have been filed as Exhibits are listed in the
Exhibit Index herein.
Exhibit 1 Shareholders' Agreement, dated as of July 7, 1999, by and among the
Issuer, American Mobile Satellite Corporation, Baron Asset Fund,
Clear Channel Investments, Inc., Columbia XM Radio Partners, LLC,
DIRECTV, Inc., General Motors Corporation, Madison Dearborn Capital
Partners III, L.P., Special Advisors Fund I, LLC, Madison Dearborn
Special Equity III, L.P., and Telcom-XM Investors, L.L.C.
(incorporated by reference to Exhibit 99.2 to American Mobile's
registration statement on Form S-3 (File No. 333-81459)).
Exhibit 2 Registration Rights Agreement, dated July 7, 1999, by and among the
Issuer, American Mobile Satellite Corporation, the Baron Asset Fund,
and the holders of Series A subordinated convertible notes of the
Issuer named in such agreement (incorporated by reference to Exhibit
99.3 to American Mobile's registration statement on Form S-3 (File
No. 333-81459)).
Exhibit 3 TCM Group Agreement dated July 7, 1999, by and among Telcom-XM
Investors, L.L.C., Columbia XM Radio Partners, LLC, Madison Dearborn
Capital Partners III, L.P., Madison Dearborn Special Equity III,
L.P. and Special Advisors Fund I, LLC.
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete and
correct.
Date: October 18, 1999
CHERRYWOOD HOLDINGS, INC.
By: /s/ Rajendra Singh
-------------------------------------
Name: Rajendra Singh
Title: President
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete and
correct.
Date: October 18, 1999
TELCOM VENTURES, L.L.C.
By: /s/ Rajendra Singh
-------------------------------------
Name: Rajendra Singh
Title: Chief Executive Officer
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete and
correct.
Date: October 18, 1999
TELCOM-XM INVESTORS, L.L.C.
By: /s/ Rajendra Singh
-------------------------------------
Name: Rajendra Singh
Title: Chief Executive Officer
<PAGE>
Schedule I
JOINT FILING AGREEMENT
The undersigned parties hereby agree that the Schedule 13D filed
herewith relating to the Class A Common Stock of XM Satellite Radio Holdings,
Inc. is being filed jointly with the Securities and Exchange Commission pursuant
to Rule 13d-1(f) on behalf of each such person.
Date: October 18, 1999
CHERRYWOOD HOLDINGS, INC.
By: /s/ Rajendra Singh
-------------------------------------
Name: Rajendra Singh
Title: President
TELCOM VENTURES, L.L.C.
By: /s/ Rajendra Singh
-------------------------------------
Name: Rajendra Singh
Title: Chief Executive Officer
TELCOM-XM INVESTORS, L.L.C.
By: /s/ Rajendra Singh
-------------------------------------
Name: Rajendra Singh
Title: Chief Executive Officer
<PAGE>
Schedule II
CHERRYWOOD HOLDINGS, INC.
DIRECTORS AND EXECUTIVE OFFICERS
Present Principal
Name: Occupation or Employment:
----- -------------------------
Rajendra Singh Representative on Members Committee,
President, Treasurer and Director Chairman, Chief Executive Officer and
Treasurer of Telcom Ventures, L.L.C.
Neera Singh Representative on Members Committee,
Executive Vice President, Secretary Executive Vice President, Secretary of
and Director Telcom Ventures, L.L.C.
Hal B. Perkins General Counsel and Assistant Secretary
General Counsel and Assistant of Telcom Ventures, L.L.C.
Secretary
Rahul Prakash President and Assistant Treasurer of
Vice President and Assistant Treasurer Telcom Ventures, L.L.C.
<PAGE>
Schedule III
TELCOM VENTURES, L.L.C.
MEMBERS COMMITTEE MEMBERS AND EXECUTIVE OFFICERS
Present Principal
Name: Occupation or Employment:
----- -------------------------
Rajendra Singh Representative on Members
Committee, Chairman, Chief
Executive Officer and Treasurer
Neera Singh Representative on Members
Committee, Executive Vice
President, Secretary
Rahul Prakash President and Assistant Treasurer
Richard Darman Representative on Members Committee
Mark Ein Representative on Members Committee
Margaret Keast Assistant Treasurer
Hal B. Perkins General Counsel and Assistant
Secretary
<PAGE>
Schedule IV
TELCOM-XM INVESTORS, L.L.C.
MEMBERS COMMITTEE MEMBERS AND EXECUTIVE OFFICERS
Present Principal
Name: Occupation or Employment:
----- -------------------------
Rajendra Singh Representative on Members Committee,
Representative on Members Committee, Chairman, Chief Executive Officer and
Chairman, Chief Executive Officer Treasurer of Telcom Ventures, L.L.C.
and Treasurer
Neera Singh Representative on Members Committee,
Representative on Members Committee, Executive Vice President, Secretary of
Executive Vice President and Secretary Telcom Ventures, L.L.C.
Rahul Prakash President and Assistant Treasurer of
Representative on Members Committee, Telcom Ventures, L.L.C.
President and Assistant Treasurer
Hal B. Perkins General Counsel and Assistant
General Counsel and Assistant Secretary of Telcom Ventures, L.L.C.
Secretary
EXHIBIT III
TCM GROUP AGREEMENT
THIS TCM GROUP AGREEMENT (the "Agreement") is made this 7th day of
July, 1999, by and among Telcom-XM Investors, L.L.C., a Delaware limited
liability company ("Telcom"), Columbia XM Radio Partners, LLC, a Virginia
limited liability company ("Columbia"), Madison Dearborn Capital Partners III,
L.P., a Delaware limited partnership ("MDCP"), Madison Dearborn Special Equity
III, L.P., a Delaware limited partnership ("MDSE") and Special Advisors Fund I,
LLC, a Delaware limited liability company ("SAFI", and together with MDCP and
MDSE, "Madison"), each of Telcom, Columbia and Madison a "Party" and
collectively, the "Parties" or the "TCM Group". For all purposes of this TCM
Group Agreement, Madison shall be regarded and shall collectively have the
rights of one "Party".
R E C I T A L S
WHEREAS, pursuant to that certain Note Purchase Agreement, dated as
of June 7, 1999, between XM Satellite Radio Holdings Inc., a Delaware
corporation ("XM"), each of the Parties and the other parties named therein (the
"Note Purchase Agreement"), each of the Parties has agreed to purchase certain
Series A Subordinated Convertible Notes ("Notes") to be issued by XM, which
Notes are convertible into shares of the Common Stock of XM ("XM Stock" and
collectively with the Notes, "XM Securities");
WHEREAS, each of the Parties shall, at the closing of the Note
Purchase Agreement, enter into a Shareholders Agreement, in a form substantially
similar to Exhibit A hereto, by and among XM, each of the Parties and the other
parties named therein (the "Shareholders Agreement") setting forth certain
rights and obligations of the TCM Group, the other purchasers of Notes and XM;
WHEREAS, each of the Parties shall also, at the closing of the Note
Purchase Agreement, enter into a Registration Rights Agreement, in a form
substantially similar to Exhibit B hereto, by and among XM, each of the Parties
and the other parties named therein (the "Registration Rights Agreement")
setting forth certain rights and obligations of the TCM Group, the other
purchasers of Notes and XM with respect to the XM Securities;
WHEREAS, the Parties wish to set forth the procedures which will
govern the exercise of the rights granted to the TCM Group in each of the
Registration Rights Agreement and the Shareholders Agreement;
<PAGE>
WHEREAS, each of the Parties has, simultaneously with the execution
of this Agreement, entered into the Limited Liability Company Agreement of TCM,
LLC (the "LLC Agreement") pursuant to which each of the Parties has become a
member of TCM, LLC, a Delaware limited liability company (the "LLC");
WHEREAS, the Parties, as members of the LLC have consented to the
LLC's entry into an Operational Assistance Agreement with XM (the "XM
Agreement") pursuant to which the LLC will have a strategic business
relationship with XM and shall have the right, so long as the TCM group, in the
aggregate, maintains a five percent level of ownership of XM Securities, to
utilize certain "bandwidth" (as defined in the XM Agreement") licensed to XM for
commercial purposes;
NOW, THEREFORE, in consideration of the terms and conditions herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the respective meanings provided therefor in the Note
Purchase Agreement, the Shareholders Agreement or the Registration Rights
Agreement, as applicable.
2. Registration Rights Agreement.
a) Actions Requiring Majority Approval. The Parties shall each make
good faith efforts to reach unanimous decisions relating to the exercise
by the TCM Group (or any of the Parties) of any of the following rights
granted to the TCM Group in the Registration Rights Agreement.
Notwithstanding the immediately preceding sentence, the exercise of such
rights, in the absence of such a unanimous decision by the Parties, shall
only require the prior written consent of Parties holding a majority in
interest of XM Securities:
(i) the exercise of the Demand Registration rights provided
for in Section 2.1 of the Registration Rights Agreement; or
(ii) except as set forth in Section 2(c) below, the taking of
any material actions or decisions (e.g. selection of underwriters) under the
Registration Rights Agreement.
b) Expenses. Any expenses to be borne by the TCM Group pursuant to
the Registration Rights Agreement shall be shared equally by each of the
Parties.
c) Discretionary Actions. Any Party may, on its own and in its own
discretion, take any of the following actions or exercise any of the
following rights granted to it as a member of the TCM Group under the
Registration Rights Agreement:
EIII-2
<PAGE>
(i) register any of its Registrable Securities pursuant to the
Shelf Registration provisions set forth in Section 2.2 of the
Registration Rights Agreement; or
(ii) register any of its Registrable Securities pursuant to the
Piggyback Registration rights provisions set forth in Section
2.3 of the Registration Rights Agreement.
3. Shareholders Agreement.
a) XM Board Member Selection. The Parties shall each make good faith
efforts to select, by a unanimous written consent, one individual to be
their representative on the XM Board of Directors pursuant to Section 5.1
of the Shareholders Agreement (the "TCM Group Director"). Notwithstanding
the preceding sentence, in the absence of such a unanimous decision, the
Parties holding a majority in interest of XM Securities may, by written
consent, select the TCM Group Director.
b) Initial Director. The Parties hereby select Dr. Rajendra Singh as
the initial TCM Group Director.
c) Removal/Successor Directors. Removal of the TCM Group Director
and appointment of successor TCM Group Directors shall require the
approval of Parties holding a majority in interest of XM Securities.
4. Transfers of XM Securities. In each case subject to the
applicable provisions of the Shareholders Agreement, each Party may transfer all
or part of its holdings of XM Securities, provided, however, that:
a) any transfer or assignment to an affiliate is permitted so long
as such affiliate agrees to join this Agreement as a Party;
b) subject to clause (a) above, each transferee, successor or assign
of any XM Securities shall agree to be bound by and to comply with the
terms of this TCM Group Agreement and shall document such agreement by
executing a counterpart of this Agreement prior to such transfer (however,
the failure of any such transferee to so execute this Agreement shall not
act as a waiver of the effects of this Section 4);
c) in the event any Party (a "Selling Party") intends to make a
transfer or assignment of XM Securities which would bring the TCM Group's
(in the aggregate) ownership of XM Securities below a 6% equity interest
level (on a fully diluted and as-converted basis) such Selling Party
shall, prior to effecting any such transfer, deliver or mail by certified
mail or overnight courier a written notice ("Right of First Offer Notice")
to each other Party stating its bona fide intention to sell, transfer or
assign some or all of its XM Securities (the "Offered Securities") and
agrees to negotiate in good faith with each other Party for a period of 30
days following the date of such Right of First Offer Notice (the
EIII-3
<PAGE>
"Exclusivity Period"), whereby each other Party (each a "Buying Party")
shall be given the first exclusive and irrevocable option (but not the
obligation) to purchase any or all of the Offered Securities; provided
that if there is more than one Buying Party, no Buying Party may purchase
more than its proportionate share (based on the number (or principal
amount) of XM Securities held by all Buying Parties) of the XM Securities
so offered unless one or more or the other Buying Parties elects to
purchase less than its proportionate share of the Offered Securities;
d) if the Selling Party does not agree to accept any offers (or
there are not offers made with respect to all of the Offered Securities)
made by the Buying Parties (each and any such offer, a "Purchase Offer")
prior to the expiration of the Exclusivity Period, the Selling Party
shall, for a period of 60 days from the expiration of the Exclusivity
Period (the "Sale Period"), be permitted to sell any Offered Securities
not subject an accepted Purchase Offer to a third-party buyer for a
purchase price or other consideration not equal to or lower than the
highest Purchaser Offer for any of the Offered Securities and on terms and
conditions no more favorable to such third-party buyer than those set
forth in the highest Purchaser Offer;
e) if Purchase Offers for all of the Offered Securities are accepted
by the Selling Party, the sale of such Offered Securities shall be closed
at a time and location mutually acceptable to the Selling Party and the
Buying Parties, but in no event later than thirty days following the
expiration of the Exclusivity Period;
f) the Selling Party shall, at the earliest of (x) the closing of
any sale of Offered Securities to a third party and (y) the expiration of
the Sale Period, sell to each Buying Party from which it accepted a
Purchase Offer the Offered Securities subject to such Purchase Offer;
g) any Offered Securities not subject to an accepted Purchase Offer
and not sold to a third party or a Buying Purchaser prior to the
expiration of the Sale Period shall become subject again to the provisions
of Sections 4(c)-(f) hereof and any future offer of such Offered
Securities or any other XM Securities held by the Selling Party shall be
made pursuant to such provisions;
h) each Party shall, upon any attempted transfer or assignment by
another Party of any of its holdings of XM Securities in contravention of
this Agreement, have the right to take appropriate legal action,
including, but not limited to seeking an injunction or the imposition of
other equitable remedies, in order to enforce the terms of this Agreement.
5. Notices. Notices hereunder shall be sent by certified mail,
return receipt requested, hand delivery or facsimile transmission (promptly
followed by certified mail) or overnight courier as follows:
To: Telcom-XM Investors, L.L.C.
211 N. Union Street, Suite 300
EIII-4
<PAGE>
Alexandria, VA 22314
Fax: 703-706-3837
Attn: President and General Counsel
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
Fax: 212-259-6333
Attn: William J. Phillips, Esq.
To: Columbia XM Radio Partners, LLC
201 North Union Street, Suite 300
Alexandria, VA 22314
Fax: 703-519-3904
Attn: James B. Fleming
with a copy to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Fax: 617-439-4170
Attn: Stephen O. Meredith, Esq.
To : Madison Dearborn Capital Partners III, L.P.
Madison Dearborn Special Equity III, L.P.
Special Advisors Fund I, LLP
Three First National Plaza
Chicago, IL 60602
Fax: 312-895-1225
Attn: James M. Perry, Jr.
with a copy to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Fax: 617-439-4170
Attn: Stephen O. Meredith, Esq.
6. Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
EIII-5
<PAGE>
7. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of all of the Parties and, to the extent permitted by this
Agreement, their successors, legal representatives and assigns.
8. Interpretation. Throughout this Agreement, nouns, pronouns and
verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "Sections" and clauses
shall refer to corresponding provisions of this Agreement unless specified
otherwise in a particular instance.
9. Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted. If any provision of this Agreement
shall be declared by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in whole or in part, such provision shall be
interpreted so as to remain enforceable to the maximum extent permissible
consistent with applicable law and the remaining conditions and provisions or
portions thereof shall nevertheless remain in full force and effect and
enforceable to the extent they are valid, legal and enforceable, and no
provisions shall be deemed dependent upon any other covenant or provision unless
so expressed herein.
10. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All counterparts shall be construed together and shall constitute one
instrument.
11. Entire Agreement. This Agreement, along with the Shareholders
Agreement and the Registration Rights Agreement, constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
12. Governing Law. This Agreement and the rights of the parties
hereunder shall be interpreted in accordance with the laws of the State of New
York, and all rights and remedies shall be governed by such laws.
13. Amendments and Waivers. Any term of this Agreement may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of each of the Parties.
14. Specific Performance. Each Party, in addition to being entitled
to exercise all rights provided herein or granted by law, will be entitled to
specific performance of its rights under this Agreement. Each Party agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
15. Choice of Forum; Jury Trial Waiver. IN THE EVENT THAT A JUDICIAL
PROCEEDING IS NECESSARY, THE SOLE FORUM FOR RESOLVING DISPUTES ARISING OUT OF OR
RELATING TO THIS AGREEMENT IS THE
EIII-6
<PAGE>
SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE COUNTY OF NEW YORK OR THE
FEDERAL COURTS LOCATED IN SUCH STATE AND COUNTY, AND RELATED APPELLATE COURTS.
THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS AND
AGREE TO SAID VENUE.
THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
EIII-7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date first above written.
TELCOM-XM INVESTORS, L.L.C.
By: /s/ Rahul Prakash
-------------------------------------
Name: Rahul Prakash
Title: President
COLUMBIA XM RADIO PARTNERS, LLC
By Columbia Capital LLC, its Managing Member
By: James B. Fleming, Jr.
-------------------------------------
Name: James B. Fleming, Jr.
Title: Managing Member
MADISON DEARBORN CAPITAL PARTNERS III, L.P.
By: Madison Dearborn Partners III, L.P., its general partner
By: Madison Dearborn Partners LLC, its general partner
By: /s/ James N. Perry, Jr.
-------------------------------------
Name: James N. Perry, Jr.
Title: Managing Director
MADISON DEARBORN SPECIAL EQUITY III, L.P.
By: Madison Dearborn Partners III, L.P., its general partner
By: Madison Dearborn Partners LLC, its general partner
By: /s/ James N. Perry, Jr.
-------------------------------------
Name: James N. Perry, Jr.
Title: Managing Director
SPECIAL ADVISORS FUND I, LLC
By: Madison Dearborn Partners III, L.P., its manager
By: Madison Dearborn Partners LLC, its general partner
By: /s/ James N. Perry, Jr.
-------------------------------------
Name: James N. Perry, Jr.
Title: Managing Director
EIII-8
<PAGE>
EXHIBIT A
ATTACH FORM OF SHAREHOLDERS AGREEMENT
EIII-9
<PAGE>
EXHIBIT B
ATTACH FORM OF REGISTRATION RIGHTS AGREEMENT
EIII-10
