<PAGE>
As filed with the Securities and Exchange Commission on December 22, 1999
Registration No. 333-92049
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
XM SATELLITE RADIO HOLDINGS INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
54 1878819
(IRS employer identification number)
1250 23rd Street, N.W., Suite 57
Washington, D.C. 20037-1100
(202) 969-7100
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
________________________
XM Satellite Radio Holdings Inc. 1998 Shares Award Plan
XM Satellite Radio Holdings Inc. Employee Stock Purchase Plan
(Full Title of the Plans)
________________________
Joseph M. Titlebaum, Esq.
Senior Vice President, General Counsel and Secretary
XM Satellite Radio Holdings Inc.
1250 23rd Street, N.W., Suite 57
Washington, D.C. 20037-1100
(202) 969-7100
(Name, address and telephone number of Agent for Service)
Copy to:
Steven M. Kaufman
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
==============================================================================
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Form S-8 Registration Statement (File
No. 333-92049) of XM Satellite Radio Holdings Inc. has been filed solely for
the purpose of filing a corrected copy of the Employee Stock Purchase Plan which
is included as Exhibit 99.2 to the Registration Statement.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
XM Satellite Radio Holdings Inc. (the "Company" or the "Registrant")
will deliver to each employee or other individual selected or eligible to
participate in the 1998 Shares Award Plan and Employee Stock Purchase Plan (the
"Plans") the documents containing the information required by Part I of Form S-8
to be included in this registration statement. In accordance with Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"), and the
instructions to Part I of Form S-8, these documents will not be filed with the
Securities and Exchange Commission (the "Commission") as part of any prospectus
or prospectus supplement. The Company is filing copies of the 1998 Shares Award
Plan and Employee Stock Purchase Plan as exhibits to this registration
statement.
Item 2. Registrant Information and Employee Plan Annual Information.
If participants in the Plans call or write to Joseph M. Titlebaum,
Senior Vice President, General Counsel and Secretary, XM Satellite Radio
Holdings Inc., 1250 23rd Street, N.W., Suite 57, Washington, D. C. 20037-1100
(202) 969-7100, the Company will provide them with copies of the documents
incorporated by reference in Item 3 of Part II of this registration statement
and other documents required to be delivered to participants in the Plans
pursuant to Rule 428(b) under the Securities Act, without charge. The documents
incorporated by reference in Item 3 of Part II of this registration statement
are incorporated by reference in the Section 10(a) prospectuses for each of the
respective Plans.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this registration
statement the following documents filed by it with the Commission:
(a) The Registrant's prospectus, dated October 5, 1999, filed with
the Commission on October 5, 1999 pursuant to Securities Act Rule
424(b);
(b) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since December 31, 1998; and
(c) The description of the Registrant's Common Stock, contained in
the Registrant's registration statement on Form 8-A filed with
the Commission on September 23, 1999.
In addition, all documents and reports filed by the Company subsequent
to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which reregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other
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<PAGE>
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
The Company's Common Stock is registered with the Commission under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of Delaware General Corporation Law permits
indemnification of officers and directors of the Registrant under certain
conditions and subject to certain limitations. Section 145 of Delaware General
Corporation Law also provides that a corporation has the power to purchase and
maintain insurance on behalf of its officers and directors against any liability
asserted against such person and incurred by him or her in such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liability under the
provisions of Section 145 of Delaware General Corporation Law.
The Restated Certificate of Incorporation and Restated Bylaws of the
Registrant provide that the Registrant shall indemnify its directors and
officers and any such directors and officers serving at the Registrant's request
as a director, officer, employee or agent of another entity to the fullest
extent not prohibited by the Delaware General Corporation Law. The Restated
Bylaws also provide that the Registrant may, but shall not be obligated to,
maintain insurance, at the Registrant's expense, for the benefit of the
Registrant and of any person to be indemnified. In addition, the Registrant has
entered or will enter into indemnification agreements with its directors and
officers that provide for indemnification in addition to the indemnification
provided in its Restated Bylaws. The indemnification agreements contain
provisions that may require the Registrant, among other things, to indemnify its
directors and executive officers against certain liabilities (other than
liabilities arising from intentional or knowing and culpable violations of law)
that may arise by reason of their status or service as directors or executive
officers of the Registrant or other entities to which they provide service at
the request of the Registrant and to advance expenses they may incur as a result
of any proceeding against them as to which they could be indemnified. The
Registrant has obtained an insurance policy covering directors and officers for
claims that such directors and officers may otherwise be required to pay or for
which the Registrant is required to indemnify them, subject to certain
exclusions.
As permitted by Section 102(b)(7) of the Delaware General Corporation
Law, the Registrant's Restated Certificate of Incorporation provides that a
director shall not be personally liable for monetary damages or breach of
fiduciary duty as a director, except for liability
. for any breach of the director's duty of loyalty to the
Registrant or its stockholders;
. for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
4
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. under Section 174 of the Delaware General Corporation Law; or
. for any transaction from which the director derived any improper
personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
--- -------
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant.*
4.2 Restated Bylaws of the Registrant.*
4.3 Form of Common Stock Certificate of the Registrant.**
5 Legal Opinion of Hogan & Hartson L.L.P.***
23 Consent of KPMG LLP, independent certified public accountants.***
24 Power of Attorney.***
99.1 XM Satellite Radio Holdings Inc. 1998 Shares Award Plan
(as amended).***
99.2 XM Satellite Radio Holdings Inc. Employee Stock Purchase Plan.
</TABLE>
*Incorporated by reference to the Registrant's registration
statement on Form S-1, SEC Registration Statement No. 333-83619.
**Incorporated by reference to the Registrant's registration
statement on Form 8-A, filed with the Commission on September 23,
1999.
***Previously filed.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate,
5
<PAGE>
represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424
(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-8 (as in this case),
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the District of Columbia, on December 22, 1999.
XM SATELLITE RADIO HOLDINGS INC.
By: *
--------------------------------------
Hugh Panero
President and Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
amended registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
* President, Chief Executive Officer December 22, 1999
- ----------------------------------- and Director
Hugh Panero (Principal Executive Officer)
* Senior Vice President and Chief December 22, 1999
- ----------------------------------- Financial Officer (Principal
Heinz Stubblefield Financial and Accounting Officer)
*
- ----------------------------------- Chairman of the Board of Directors December 22, 1999
Gary M. Parsons
- ----------------------------------- Director _____________ _____, 1999
Nathaniel A. Davis
- ----------------------------------- Director _____________ _____, 1999
Thomas J. Donohue
- ----------------------------------- Director _____________ _____, 1999
Randall T. Mays
*
- ----------------------------------- Director December 22, 1999
Randy S. Segal
*
- ----------------------------------- Director December 22, 1999
Jack Shaw
- ----------------------------------- Director _____________ _____, 1999
Rajendra Singh
*
- ----------------------------------- Director December 22, 1999
Ronald L. Zarrella
*By /s/ Joseph M. Titlebaum
-------------------------------
Joseph M. Titlebaum
Attorney-in-Fact
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
---- -------
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant.*
4.2 Restated Bylaws of the Registrant.*
4.3 Form of Common Stock Certificate of the Registrant.**
5 Legal Opinion of Hogan & Hartson L.L.P.***
23 Consent of KPMG LLP, independent certified public accountants.***
24 Power of Attorney.***
99.1 XM Satellite Radio Holdings Inc. 1998 Shares Award Plan (as
amended).***
99.2 XM Satellite Radio Holdings Inc. Employee Stock Purchase Plan.
</TABLE>
*Incorporated by reference to the Registrant's registration statement
on Form S-1, SEC Registration Statement No. 333-83619.
**Incorporated by reference to the Registrant's registration
statement on Form 8-A, filed with the Commission on September 23,
1999.
***Previously filed.
<PAGE>
EXHIBIT 99.2
-----------------------------------------
XM SATELLITE RADIO HOLDINGS INC.
EMPLOYEE STOCK PURCHASE PLAN
-----------------------------------------
-------------------------------
ARTICLE I
PURPOSE AND SCOPE OF THE PLAN
-------------------------------
1.1 Purpose
The XM Satellite Radio Holdings Inc. Employee Stock Purchase Plan is
intended to encourage employee participation in the ownership and economic
progress of the Corporation.
1.2 Definitions
Unless the context clearly indicates otherwise, the following terms have
the meaning set forth below:
"XM Benefits Administration" shall mean the Corporation's Human Resources
Group.
"Board" shall mean the Board of Directors of the Corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean a committee of officers or employees of the
Corporation and/or one or more of its Subsidiaries appointed by the Board, which
Committee shall administer the Plan as provided in Section 1.3 hereof.
"Common Stock" shall mean shares of Class A common stock, par value $.01
per share, of the Corporation.
"Compensation" shall mean the base salary, bonuses, overtime, and
commissions paid to an Employee by the Corporation or a Subsidiary in accordance
with established payroll procedures.
"Corporation" shall mean XM Satellite Radio Holdings Inc.
"Covered Officer" shall mean an Employee who is subject to the reporting
requirements of Section 16(a) of the Exchange Act.
"Eligible Employee" shall mean an Employee who (i) is scheduled to work at
least 20 hours per week and (ii) whose customary employment is more than five
(5) months in a calendar year.
"Employee" shall mean any employee of the Corporation or a Subsidiary.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exercise Date" shall mean the date as determined by the Committee.
<PAGE>
"Fair Market Value" of a share of Common Stock shall mean (i) with respect
to the Initial Offering Date, the price at which a share of Common Stock is sold
to the public in the Initial Public Offering, or (ii) in all other cases, the
amount equal to the average of the closing bid and asked for prices of a Share
on the applicable date as reported by the consolidated tape of the National
Association of Securities Dealers Automated Quotation (or on such other
recognized quotation system on which the trading prices of the Common Stock are
quoted on the applicable date), or, if no Share transactions are reported on
such tape (or such other system) on the applicable date, the average of the
closing bid and asked for prices of a Share on the immediately preceding date on
which Share transactions were so reported, or as determined pursuant to a
reasonable method adopted by the Committee in good faith for such purpose.
"Initial Offering" shall mean the first Option Period under the Plan, which
shall begin on the Initial Offering Date and shall end on December 31, 1999.
"Initial Offering Date" shall mean October 4, 1999.
"Offering Date" shall mean such date as shall be determined by the
Committee in accordance with the terms of the Plan.
"Option Period" shall mean (i) in the case of the Initial Offering, the
period beginning on the Initial Offering Date and ending on December 31, 1999,
or (ii) in all other cases, the period beginning on an Offering Date and ending
on the next succeeding Exercise Date.
"Option Price" shall mean the purchase price of a share of Common Stock
hereunder as provided in Section 3.1 hereof.
"Participant" shall mean any Eligible Employee who elects to participate.
"Plan" shall mean this XM Satellite Radio Holdings Inc. Employee Stock
Purchase Plan, as the same may be amended from time to time.
"Plan Account" shall mean an account established and maintained by the
Corporation in the name of each Participant.
"Plan Year" shall mean the twelve (12) month period beginning January 1 and
ending on the following December 31.
"Stock Purchase Agreement" shall mean the form prescribed by the Committee
which must be executed by an Employee who elects to participate in the Plan.
"Subsidiary" shall mean any company in which the Corporation owns, directly
or indirectly, shares possessing 50% of the total combined voting power of all
classes of stock.
1.3 Administration of Plan
The Committee shall have the authority to administer the Plan and to make
and adopt rules and regulations not inconsistent with the provisions of the
Plan, provided that, except with respect to the Initial Offering, the Committee
also is authorized to change the Offering Periods, Offering Dates and Exercise
Dates under the Plan by providing written notice to all Employees at least 15
days prior to the Exercise Date following which such changes will take effect.
The Committee shall adopt the form of Stock Purchase Agreement and all notices
required hereunder. The Committee may delegate administrative tasks under the
Plan to one or more agents. The Committee's interpretation and decisions in
respect to the Plan shall be final and conclusive.
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<PAGE>
1.4 Effective Date of Plan
The plan shall become effective on October 4, 1999, which shall be the
Initial Offering Date, provided that the Plan is approved by the stockholders of
the Corporation within 12 months before or after the date the Plan is adopted by
the Board.
1.5 Termination of Plan
The Plan shall continue in effect through December 31, 2009 unless
terminated prior thereto pursuant to Section 4.3 hereof, or by the Board which
shall have the right to terminate the Plan at any time. Upon any such
termination, the balance of any payroll deductions in each Participant's Plan
Account shall be refunded and, except as provided in Article VI, a certificate
or certificates for any shares of Common Stock in each Participant's Plan
Account shall be distributed to the Participant.
--------------------------------
ARTICLE II
PARTICIPATION
--------------------------------
2.1 Eligibility
Except in the case of the Initial Offering, each person who is an Eligible
Employee on an Offering Date may become a Participant by executing and filing a
Stock Purchase Agreement at least 15 days prior to said Offering Date. In the
case of the Initial Offering, each person who is an Eligible Employee on the
Initial Offering Date may become a Participant by executing and filing a Stock
Purchase Agreement on or before the date determined by the Committee in
accordance with applicable law. An Employee may not participate in the Plan if
immediately after the applicable Offering Date or, in the case of the Initial
Offering, the Initial Offering Date, the Employee would be deemed for purposes
of Section 423(b)(3) of the Code to possess 5% or more of the total combined
voting power or value of all classes of stock of the Corporation or any
Subsidiary. Notwithstanding the foregoing, the eligibility of any Participant
who is a Covered Officer is further limited to the extent provided in Article
VI.
2.2 Payroll Deductions
Payment for shares of Common Stock purchased hereunder shall be made by
authorized payroll deductions from each payment of Compensation in accordance
with instructions received from a Participant. Payroll deductions (a) shall be
equal to at least 1% of Compensation and (b) must equal at least five dollars
($5.00) per pay period and (c) may be expressed either as (i) a whole number
percentage or (ii) a fixed dollar amount, subject to the provisions of section
3.3 hereof. A Participant may not increase or decrease the deduction during an
Option Period. A Participant may, however, change the percentage deduction for
any subsequent Option Period by filing another Stock Purchase Agreement at least
15 days prior to the Offering Date on which such subsequent Option Period
commences. Amounts deducted from a Participant's Compensation pursuant to this
Section 2.2 shall be credited to the Participant's Plan Account.
-3-
<PAGE>
--------------------------------
ARTICLE III
PURCHASE OF SHARES
--------------------------------
3.1 Option Price
The Option Price of each share of the Common Stock shall be determined by
the Committee; provided, however, that the Option Price per share of the Common
-----------------
Stock sold to Participants hereunder shall be no less than 85% of the Fair
Market Value of such share on (i) in the case of the Initial Offering, either
the Initial Offering Date or the Exercise Date of the Option Period, whichever
is lower, or (ii) in all other cases, either the Offering Date or the Exercise
Date of the Option Period, whichever is lower, but in no event shall the Option
Price per share be less than the par value of the Common Stock.
3.2 Purchase of Shares
On each Exercise Date, the amount in a Participant's Plan Account shall be
charged with the aggregate Option Price of the largest number of whole shares of
Common Stock which can be purchased with said amount. The balance, if any, in
such Plan Account shall be carried forward to the next succeeding Offering
Period, unless the Participant has elected to withdraw from the Plan pursuant to
Section 5.1 hereof.
3.3 Limitations on Purchase
The Fair Market Value (determined on the Offering Date or the Initial
Offering Date, as the case may be) of the number of shares of Common Stock that
may be purchased under the Plan by a Participant in any calendar year shall not
exceed $25,000.
3.4 Transferability of Rights
Rights to purchase shares of Common Stock hereunder shall not be
transferable otherwise than by will or the laws of descent and distribution, and
may be exercised during the Participant's lifetime only by the Participant.
--------------------------------
ARTICLE IV
PROVISIONS RELATING
TO COMMON STOCK
--------------------------------
4.1 Common Stock Reserved
There shall be 300,000 authorized and unissued shares of Common Stock,
reissued treasury shares of Common Stock, or shares of Common Stock otherwise
acquired by the Corporation, reserved for the Plan, subject to adjustment in
accordance with Section 4.2 hereof. The aggregate number of shares which may be
purchased under the Plan shall not exceed the number of shares reserved for the
Plan.
4.2 Adjustment for Changes in Common Stock
In the event that adjustments are made in the number of outstanding shares
of Common Stock or the shares are exchanged for a different class of stock of
the Corporation or for shares of stock of any other corporation by reason of
merger, consolidation, stock dividend, stock split or otherwise, the Committee
may make appropriate adjustments in (i) the number and class of shares or other
securities that may be reserved for purchase hereunder, and
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<PAGE>
(ii) the Option Price. All such adjustments shall be made in the sole discretion
of the Committee, and its decision shall be binding and conclusive.
4.3 Insufficient Shares
If the aggregate funds available for the purchase of Common Stock on any
Exercise Date would cause an issuance of shares in excess of the number provided
for in Section 4.1 hereof, (i) the Committee shall proportionately reduce the
number of shares that would otherwise be purchased by each Participant in order
to eliminate such excess, and (ii) the Plan shall automatically terminate
immediately after such Exercise Date.
4.4 Confirmation
Each purchase of Common Stock hereunder shall be confirmed in writing to
the Participant. A record of purchases shall be maintained by appropriate
entries on the books of the Corporation. Except as provided in Article VI,
Participants may obtain a certificate or certificates for all or part of the
shares of Common Stock purchased hereunder by requesting same in writing.
4.5 Rights as Shareholders
The shares of Common Stock purchased by a Participant on an Exercise Date
shall, for all purposes, be deemed to have been issued and sold at the close of
business on such Exercise Date. Prior to that time, none of the rights or
privileges of a stockholder of the Corporation shall exist with respect to such
shares.
--------------------------------
ARTICLE V
TERMINATION OF PARTICIPATION
--------------------------------
5.1 Voluntary Withdrawal
A Participant may withdraw from the Plan at any time by filing notice of
withdrawal prior to the close of business on an Exercise Date. Upon withdrawal,
the entire amount, if any, in a Participant's Plan Account shall be refunded to
him or her, unless the Participant elects in such notice of withdrawal to have
such amount used to purchase whole shares of Common Stock pursuant to Section
3.2 hereof on said Exercise Date, and have any remaining balance refunded.
Except as provided in Article VI with respect to Covered Officers, any
Participant who withdraws from the Plan may again become a Participant in
accordance with Section 2.1 hereof.
5.2 Termination of Eligibility
If a Participant retires, he or she may elect to (i) withdraw the entire
amount, if any, in his or her Plan Account, or (ii) have the amount used to
purchase whole shares of Common Stock pursuant to Section 3.2 hereof on the next
succeeding Exercise Date, and have any remaining balance refunded.
If a Participant ceases to be eligible under Section 2.1 hereof for any
reason other than retirement, the dollar amount in such Participant's Plan
Account will be refunded and, except as provided in Article VI, the number of
unissued shares in such Participant's Plan Account will be distributed to the
Participant or his or her designated beneficiary or estate.
-5-
<PAGE>
--------------------------------------------------------------
ARTICLE VI
SPECIAL RULES FOR COVERED OFFICERS AND CERTAIN RELATED MATTERS
--------------------------------------------------------------
6.1 Withdrawal From Plan
Unless permitted by the Committee, if a Participant who is a Covered
Officer withdraws from the Plan (i.e., ceases participation), he or she will not
----
again be eligible to participate in the Plan until the expiration of six months
from the effective date of the notice of withdrawal. In the event of such
withdrawal, the entire amount, if any, in the Participant's Plan Account shall
be refunded to him or her, unless the Participant elects in the notice of
withdrawal to purchase shares of Common Stock at the end of the Option Period
and have the balance, if any, in the Participant's Plan Account refunded (in
such case, the effective date of the notice of withdrawal will be the Exercise
Date).
6.2 Obtaining Certificates for Common Stock
Unless otherwise permitted by the Committee, a Participant shall not be
permitted to receive a certificate or certificates representing shares of Common
Stock held in his or her Plan Account until the expiration of six months from
the Exercise Date on which the shares are purchased. If a Participant withdraws
from the Plan (i.e., ceases participation) or the Plan terminates, and the
----
Participant has shares of Common Stock in his or her Plan Account that have not
been held for such six-month period, no certificates for the shares will be
issued to the Participant until the end of that six-month period unless the
Committee so permits. Unless permitted by the Committee, if a Participant who is
a Covered Officer wishes to receive a certificate or certificates representing
shares of Common Stock that have been held in his or her Plan Account for at
least six months, the Participant also must withdraw from the Plan (i.e., cease
----
participation) as of the date the certificate or certificates are issued and
will not again be eligible to participate in the Plan until the expiration of
six months from that date.
6.3 Qualification under Code Section 423
Should any provision of this Article VI cause the Plan not to qualify as an
"employee stock purchase plan" within the meaning of Section 423 of the Code,
then such provision shall not be a requirement under the Plan. In that event,
such provision shall instead be a guideline that each Participant who is a
Covered Officer is urged to follow in order to avoid possible liability to the
Corporation pursuant to Section 16(b) of the Exchange Act with respect to
transactions under the Plan.
--------------------------------
ARTICLE VII
GENERAL PROVISIONS
--------------------------------
7.1 Broad Based, Nondiscriminatory Plan
The Plan shall at all times be a broad based, nondiscriminatory plan within
the meaning of Rule 16b-3(d)(2)(i)(A) under the Exchange Act.
7.2 Notices
Any notice that a Participant files pursuant to the Plan shall be made on
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<PAGE>
forms prescribed by the Committee and, except with respect to a notice of
withdrawal that is intended to take effect after the purchase of shares of
Common Stock at the end of the Option Period (see Section 5.1 above), shall be
effective when received by XM Benefits Administration.
7.3 Condition of Employment
Neither the creation of the Plan nor participation therein shall be deemed
to create any right of continued employment or in any way affect the right of
the Corporation or a Subsidiary to terminate an Employee.
7.4 Amendment of the Plan
The Board of Directors may at any time, or from time to time, amend the
Plan in any respect, except that, without approval of the stockholders, no
amendment may increase the aggregate number of shares reserved under the Plan
other than as provided in Section 4.2 hereof, materially increase the benefits
accruing to Participants, or modify the requirements as to eligibility for
participation in the Plan. Any amendment of the Plan must be made in accordance
with applicable provisions of the Code and/or any regulations issued thereunder.
7.5 Application of Funds
All funds received by the Corporation by reason of purchase of Common Stock
hereunder may be used for any corporate purpose.
7.6 Legal Restrictions
The Corporation shall not be obligated to sell shares of Common Stock
hereunder if counsel to the Corporation determines that such sale would violate
any applicable law or regulation.
7.7 Governing Law
The Plan and all rights and obligations thereunder shall be construed and
enforced in accordance with the laws of the State of Delaware.
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<PAGE>
* * * * *
The Plan was duly adopted and approved by the Board on September 9, 1999,
and was duly adopted and approved by the stockholders of the Corporation on
September 27, 1999.
/s/ Joseph M. Titlebaum
____________________________________
Joseph M. Titlebaum
XM Satellite Radio Holdings Inc.
Senior Vice President,
General Counsel and Secretary
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