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[Hogan & Hartson LLP letterhead]
October 25, 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-3 (the "Registration Statement"), filed with the Securities
and Exchange Commission on October 6, 2000, File No. 333-47570, and relating to
the proposed public offering of up to $500,000,000 in aggregate amount of one or
more classes or series of the Company's securities, which securities may include
any or all of the Company's:
(i) shares of Class A common stock, par value $.01 per share (the
"Class A Common Stock");
(ii) shares of preferred stock (the "Preferred Stock");
(iii) Preferred Stock represented by depositary shares (the
"Depositary Shares");
(iv) debt securities (the "Debt Securities");
(v) warrants to purchase Debt Securities, Class A Common Stock,
Preferred Stock or Depositary Shares (the "Warrants"); and
(vi) rights to purchase Class A Common Stock (the "Rights" and
together with the Class A Common Stock, Preferred Stock,
Depositary Shares, Debt Securities and Warrants, the
"Securities"),
all of which Securities may be offered and sold by the Company from time to time
as set forth in the prospectus which forms a part of the Registration Statement
(the "Prospectus"), and as set forth in one or more supplements to the
Prospectus (each, a "Prospectus Supplement"). This opinion letter is furnished
to you at your request
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October 25, 2000
Page 2
to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K,
17 C.F.R. Section 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. The Amended and Restated Certificate of Incorporation of the
Company, as certified by the Secretary of State of the State of
Delaware on October 24, 2000 and as certified by the Secretary of
the Company on the date hereof as being complete, accurate and in
effect (the "Amended and Restated Certificate").
3. The Amended and Restated Bylaws of the Company, as certified by
the Secretary of the Company on the date hereof as being
complete, accurate and in effect (the "Bylaws").
4. The proposed form of Debt Securities Indenture between the
Company and a trustee to be determined (the "Trustee"), filed as
Exhibit 4.10 to the Registration Statement (the "Indenture").
5. Resolutions of the Board of Directors of the Company adopted on
September 7, 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 Securities 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 the
Delaware General Corporation Law, as amended. 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.
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October 25, 2000
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For purposes of this opinion letter, we have assumed that:
(i) the issuance, sale, amount and terms of the Securities to be
offered from time to time will be duly authorized and established
by proper action of the Board of Directors of the Company (each,
a "Board Action") and in accordance with the Certificate of
Incorporation, Bylaws and applicable Delaware law;
(ii) prior to any issuance of shares of Preferred Stock or Depositary
Shares, an appropriate Certificate of Designation relating to a
class or series of the Preferred Stock or Depositary Shares to be
sold under the Registration Statement will have been duly
authorized and adopted and filed with the Secretary of State of
the State of Delaware (the "Certificate of Designation");
(iii) any Depositary Shares will be issued by the Depositary (as
defined below) under one or more deposit agreements (each, a
"Deposit Agreement"), each to be between the Company and a
financial institution identified therein as the depositary (each,
a "Depositary");
(iv) any Debt Securities will be issued pursuant to an Indenture;
(v) any Rights will be issued under one or more rights agreements
(each a "Rights Agreement"), each to be between the Company and a
financial institution identified therein as a rights agent (each,
a "Rights Agent"); and
(vi) any Warrants will be issued under one or more warrant agreements
(each, a "Warrant Agreement"), each to be between the Company and
a financial institution identified therein as a warrant agent
(each, a "Warrant Agent").
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(a) following (i) final action of the Board of Directors of the
Company authorizing an issuance of Class A Common Stock, (ii) effectiveness of
the Registration Statement, (iii) issuance and delivery of certificates for
Class A Common Stock against payment therefor in accordance with the terms of
such Board Action and any applicable underwriting agreement or purchase
agreement, and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement or upon the exercise of any Warrants for Class
A Common Stock in accordance with the terms thereof, or conversion or exchange
of Preferred Stock that, by their terms, are convertible into or exchangeable
for Class A Common
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October 25, 2000
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Stock, the Class A Common Stock will be validly issued, fully paid, and
nonassessable;
(b) following (i) final action of the Board of Directors of the
Company authorizing and establishing a series of the Preferred Stock, in
accordance with the terms of the Certificate of Incorporation, the Bylaws and
applicable law, (ii) filing of an appropriate Certificate of Designation with
respect to such Preferred Stock, (iii) effectiveness of the Registration
Statement, (iv) final action of the Board of Directors authorizing issuance of
such shares of Preferred Stock, and (v) receipt by the Company of the
consideration for the Preferred Stock specified in the resolutions of the Board
of Directors, the Preferred Stock will be validly issued, fully paid, and
nonassessable.
(c) following (i) final action of the Board of Directors classifying a
series of Preferred Stock underlying a series of Depositary Shares, in
accordance with the terms of the Certificate of Incorporation, Bylaws and
applicable law, (ii) filing of an appropriate Certificate of Designation with
respect to such Preferred Stock, (iii) effectiveness of the Registration
Statement, (iv) final action of the Board of Directors authorizing issuance of
such shares of Preferred Stock, (v) final action of the Board of Directors
authorizing execution and delivery of a Deposit Agreement, and (vi) receipt by
the Company of the consideration for the Depositary Shares specified in the
resolutions of the Board of Directors, the Depositary Shares will be validly
issued, fully paid, and nonassessable.
(d) following (i) effectiveness of the Registration Statement,
(ii) due execution and delivery of an applicable Indenture by the Company and
the Trustee named therein, (iii) final action of the Board of Directors duly
authorizing the issuance of any series of Debt Securities, the terms of which
have been duly established in accordance with the provisions of the Indenture,
(iv) due authentication by the Trustee, and (v) due execution and delivery of
such Debt Securities on behalf of the Company against payment therefor in
accordance with the terms of such Board Action, any applicable underwriting
agreement or purchase agreement, the Indenture and any applicable supplemental
indenture, and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, the Debt Securities will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity, including, without
limitation, requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether enforcement is considered in a proceeding in
equity or at law).
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October 25, 2000
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(e) following (i) effectiveness of the Registration Statement,
(ii) due authorization by the Board of Directors of the Company of a Warrant
Agreement and the specific terms of the underlying Warrants conforming to the
description thereof in the Registration Statement and/or the applicable
Prospectus Supplement and delivery of such Warrant Agreement by the Company and
the Warrant Agent named therein, (iii) authentication by the Warrant Agent of
Warrants conforming to the requirements of the related Warrant Agreement, and
(iv) due execution and delivery on behalf of the Company of such Warrants
against payment therefor in accordance with the terms of such Board Action, any
applicable underwriting agreement or purchase agreement and the applicable
Warrant Agreement and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, and assuming that the terms of the Warrants as
set forth in the Warrant Agreement do not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company, the Warrants will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent transfers
and preferential transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity, including, without
limitation, requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(f) following (i) effectiveness of the Registration Statement,
(ii) due authorization by the Board of Directors of the Company of a Rights
Agreement and the specific terms of the underlying Rights conforming to the
description thereof in the Registration Statement and/or the applicable
Prospectus Supplement and delivery of such Rights Agreement by the Company and
the Rights Agent named therein, (iii) authentication by the Rights Agent of
Rights conforming to the requirements of the related Rights Agreement, and
(iv) due execution and delivery on behalf of the Company of such Rights against
payment therefor in accordance with the terms of such Board Action, any
applicable underwriting agreement or purchase agreement and the applicable
Rights Agreement and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement, and assuming that the terms of the Rights as
set forth in the Rights Agreement do not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company, the Rights will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent transfers
and preferential transfers) and as may be limited by the exercise of
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October 25, 2000
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judicial discretion and the application of principles of equity, including,
without limitation, requirements of good faith, fair dealing, conscionability
and materiality (regardless of whether enforcement is considered in a proceeding
in equity or at law).
To the extent that the obligations of the Company under any Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the applicable 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.
To the extent that the obligations of the Company under any Rights
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the applicable Rights Agent is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; that the
Rights Agent is duly qualified to engage in the activities contemplated by the
Rights Agreement; that the Rights Agreement has been duly authorized, executed
and delivered by the Rights Agent and constitutes the valid and binding
obligation of the Rights Agent enforceable against the Rights Agent in
accordance with its terms; that the Rights Agent is in compliance, with respect
to acting as a Rights Agent under the Rights Agreement, with all applicable laws
and regulations; and that the Rights Agent has the requisite organizational and
legal power and authority to perform its obligations under the Rights Agreement.
To the extent that the obligations of the Company and the rights of
any holder of Depositary Shares under any Deposit Agreement may be dependent
upon such matters, we assume for purposes of this opinion that the applicable
Depositary is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Depositary is duly qualified
to engage in the activities contemplated by the Deposit Agreement; that the
Deposit Agreement has been duly authorized, executed and delivered by the
Depositary and constitutes a valid and binding obligation of the Depositary
enforceable against the Depositary in accordance with its terms; that the
Depositary is in compliance, with respect to acting as a Depositary under the
Deposit Agreement, with all applicable laws and regulations; and that the
Depositary has the requisite organizational and legal power and authority to
perform its obligations under the Deposit Agreement.
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October 25, 2000
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To the extent that the obligations of the Company under any Indenture
may be dependent upon such matters, we assume for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
valid and binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, with respect to
acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
The opinions expressed in Paragraphs (d), (e) and (f) above shall be
understood to mean only that if there is a default in performance of an
obligation, (i) if a failure to pay or other damage can be shown and (ii) if the
defaulting party can be brought into a court which will hear the case and apply
the governing law, then, subject to the availability of defenses, and to the
exceptions set forth in Paragraphs (d), (e) and (f) the court will provide a
money damage (or perhaps injunctive or specific performance) remedy.
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,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
