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Exhibit 5.1
September 1, 2000
Board of Directors
XM Satellite Radio Holdings Inc.
1500 Eckington Place, N.E.
Washington, D.C. 20002
Ladies and Gentlemen:
We are acting as special counsel to XM Satellite Radio
Holdings Inc., a Delaware corporation (the "Company"), in connection with its
Registration Statement on Form S-1 (the "Registration Statement"), filed with
the Securities and Exchange Commission and relating to resales of up to 325,000
warrants (the "Warrants") to purchase shares of the Company's Class A Common
Stock, par value $.01 per share (the "Class A Common Stock") and up to 2,608,065
shares of Class A Common Stock, issuable upon exercise of the Warrants (the
"Exercise Shares") in accordance with the Warrant Agreement (as defined below).
The Warrants and the Exercise Shares are to be offered and sold by certain
security holders of the Company. This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. (S)229.601(b)(5), in connection with the Registration
Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. An executed copy of the Warrant Agreement, dated March
15, 2000 (the "Warrant Agreement"), by and between the
Company and United States Trust Company of New York (the
"Warrant Agent"), including the form of Warrant to be
issued pursuant thereto, as filed as Exhibit 4.7 to the
Registration Statement.
3. The Amended and Restated Certificate of Incorporation of
the Company, as certified by the Secretary of State of
the State of
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Delaware on August 3, 2000 (the "Amended and Restated
Certificate").
4. The Amended and Restated By-laws of the Company, as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
5. Resolutions of the Board of Directors of the Company
adopted on March 9, 2000 and May 31, 2000, as certified
by the Secretary of the Company on the date hereof as
being complete, accurate and in effect, relating to the
issuance and sale of the Warrants and underlying Class A
Common Stock and arrangements in connection therewith.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on
applicable provisions of the Delaware General Corporation Law, as amended, and
the contract law of the State of New York (but not including any statutes,
ordinances, administrative decisions, rules or regulations of any political
subdivision of the State of New York). We express no opinion herein as to any
other laws, statutes, ordinances, rules or regulations. As used herein, the term
"Delaware General Corporation Law, as amended" includes the statutory provisions
contained therein, all applicable provisions of the Delaware Constitution and
reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
(i) The Warrants constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except (a) as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally (including,
without limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and (b) as may be
limited by the exercise of judicial discretion and the application of general
principles of equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether the
Warrants are considered in a proceeding in equity or at law).
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(ii) The Exercise Shares, when issued in accordance with the
terms of the Warrants and the Warrant Agreement, will be validly issued, fully
paid, and nonassessable.
To the extent that the obligations of the Company under the
Warrant Agreement may be dependent upon such matters, we assume for purposes of
this opinion that the Warrant Agent is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization; that the
Warrant Agent is duly qualified to engage in the activities contemplated by the
Warrant Agreement; that the Warrant Agreement has been duly authorized, executed
and delivered by the Warrant Agent and constitutes the valid and binding
obligation of the Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in compliance, with respect
to acting as a Warrant Agent under the Warrant Agreement, with all applicable
laws and regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Warrant Agreement.
This opinion letter has been prepared for your use in connection
with the Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit
5.1 to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
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