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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
XM Satellite Radio Holdings Inc.
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(Exact name of registrant as specified in its charter)
Delaware 52-1878819
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(State incorporation or organization) (I.R.S. Employer Identification No.)
1250 23rd Street, N.W., Suite 57, Washington, DC 20037-1100
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [x]
Securities Act registration statement file number to which this form
relates: 333-93529
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None
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Securities to be registered pursuant to Section 12(g) of the Act:
___% Series B Convertible Redeemable Preferred Stock, $.01 par value per share
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(Title of class)
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Item 1. Description of Registrant's Securities To Be Registered.
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The Registrant hereby incorporates by reference the section entitled
"Description of Series B Preferred Stock" of the second Prospectus, which
relates to the Series B preferred stock offering, contained in Amendment No. 2
to the Registrant's Registration Statement on Form S-1 (File No. 333-93529),
filed on January 7, 2000.
Item 2. Exhibits.
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1. Restated Certificate of Incorporation of XM Satellite Radio
Holdings Inc.
2. Restated Bylaws of XM Satellite Radio Holdings Inc.
3. Form of Certificate of Designations for __% Series B Convertible
Redeemable Preferred Stock.
4. Specimen stock certificate representing the __% Series B
Convertible Redeemable Preferred Stock, par value $.01 per share,
of the Registrant.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
XM SATELLITE RADIO HOLDINGS INC.
(Registrant)
Date: January 21, 2000 By: /s/ Joseph M. Titlebaum
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Joseph M. Titlebaum
Senior Vice President, General Counsel
and Secretary
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EXHIBIT INDEX
Exhibit No. Description
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1. Restated Certificate of Incorporation of XM Satellite Radio
Holdings Inc.
2. Restated Bylaws of XM Satellite Radio Holdings Inc.
3. Form of Certificate of Designations for __% Series B Convertible
Redeemable Preferred Stock.
4. Specimen stock certificate representing the __% Series B
Convertible Redeemable Preferred Stock, par value $.01 per share,
of the Registrant.
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Exhibit 1
RESTATED
CERTIFICATE OF INCORPORATION
OF
XM SATELLITE RADIO HOLDINGS INC.
XM Satellite Radio Holdings Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation") hereby certifies as
follows:
1. The name of the Corporation is XM SATELLITE RADIO HOLDINGS INC. The name
under which the Corporation was originally incorporated was AMRC Holdings, Inc.,
and the Corporation's original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on May 16, 1997.
2. This Restated Certificate of Incorporation was duly adopted by the
Corporation's Board of Directors and stockholders in accordance with Sections
242 and 245 of the General Corporation Law of the State of Delaware (the
"DGCL"). The Restated Certificate of Incorporation restates, integrates and
further amends the provisions of the Certificate of Incorporation of the
Corporation.
3. The text of the Certificate of Incorporation as heretofore amended is
hereby further amended and restated in its entirety, to read in its entirety as
follows:
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FIRST: The name of the corporation is XM Satellite Radio Holdings Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of the Corporation's registered agent at such address is the
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware ("DGCL").
FOURTH: A. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is Three Hundred Million
(300,000,000), consisting of (i) Sixty Million (60,000,000) shares of Preferred
Stock with a par value of $0.01 per share, and (ii) Two Hundred and Forty
Million (240,000,000) shares of Common Stock with a par value of $0.01 per
share, of which One Hundred and Eighty Million (180,000,000) shares shall be
designated "Class A Common Stock", Thirty Million (30,000,000) shares shall be
designated "Class B Common Stock" and Thirty Million (30,000,000) shares shall
be designated "Class C Common Stock."
B. The Class A Common Stock, the Class B Common Stock and the Class C
Common Stock shall be identical in all respects and shall have equal rights and
privileges, except as otherwise provided in this Article FOURTH. The relative
rights, preferences, privileges and restrictions of the shares of the classes
are as follows:
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1. The holders of shares of Class A Common Stock, Class B Common
Stock and Class C Common Stock shall ratably receive dividends and distributions
of the Corporation whether paid in cash, in property or shares of Common Stock.
2. The holders of shares of Class A Common Stock, Class B Common
Stock and Class C Common Stock shall have the following voting rights:
(i) At every annual or special meeting of the stockholders
of the Corporation or at any other time that any matter is submitted to a vote
or for the consent of the stockholders, every holder of Class A Common Stock
shall be entitled to one (1) vote for each share of Class A Common Stock
standing in such holder's name on the books of the Corporation.
(ii) At every annual or special meeting of the stockholders
of the Corporation or at any other time that any matter is submitted to a vote
or for the consent of the stockholders, every holder of Class B Common Stock
shall be entitled to three (3) votes for each share of Class B Common Stock
standing in such holder's name on the books of the Corporation.
(iii) The holders of shares of Class C Common Stock shall
not be entitled to vote at any annual or special meeting of the stockholders of
the Corporation or at any other time that any matter is submitted to a vote or
for the consent of the stockholders, except to the extent required by law.
3. Upon liquidation, dissolution, winding up or insolvency of the
Corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the Corporation and of the
preferential
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amounts to which the holders of Preferred Stock shall be entitled, the holders
of all outstanding shares of Class A Common Stock, Class B Common Stock and
Class C Common Stock shall be entitled to share ratably in the remaining net
assets of the Corporation.
4. Each holder of record of a share of Class B Common Stock may
at any time or from time to time, in such holder's sole discretion and at such
holder's option, convert any whole number or all of such holder's shares of
Class B Common Stock into fully paid and nonassessable shares of Class A Common
Stock at the rate of one share of Class A Common Stock for each share of Class B
Common Stock surrendered for conversion.
(a) In the event that the Corporation shall at any time
prior to the conversion of all or a portion of Class B Common Stock either (i)
subdivide the outstanding shares of Class A Common Stock into a greater number
of shares, (ii) combine the outstanding shares of Class A Common Stock into a
smaller number of shares, (iii) change the outstanding shares of Class A Common
Stock into the same or a given number of shares of any other class or classes of
shares, (iv) declare on or in respect of the shares of Class A Common Stock a
dividend payable in shares or other securities of the Corporation, or (v) offer
to the holders of Class A Common Stock any rights to subscribe for shares of
other securities of the Corporation (each such event being referred to as a
"Recapitalization"), then the holders of the shares of Class B Common Stock
shall be entitled, as the case may be, to receive the same number of shares of
Class B
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Common Stock, in the case of any Recapitalization involving Class A Common
Stock, or shares of any other class or classes of shares or other securities of
the Corporation, or shall be entitled to subscribe for and purchase at the same
price that the Recapitalization shares or securities are offered to the holders
of Class A Common Stock, the number of such shares or the amount of such other
class or classes of shares or other securities as will result in the holders of
the shares of Class B Common Stock holding such number of shares of Class B
Common Stock as necessary to maintain the same proportion of the outstanding
shares of Class B Common Stock in relation to the outstanding shares of Class A
Common Stock following the Recapitalization as the proportion of the outstanding
shares of Class B Common Stock in relation to the outstanding shares of Class A
Common Stock prior to such Recapitalization.
(b) Any conversion of one or more shares of Class B Common
Stock into one or more shares of Class A Common Stock may be effected by the
holder of Class B Common Stock by surrendering such holder's certificate or
certificates for the shares of Class B Common Stock to be converted, duly
endorsed, at the office of the Corporation or the office of any transfer agent
for the Class A Common Stock, together with a written notice to the Corporation
at such office that such holder elects to convert all or a specified number of
such shares of Class B Common Stock. Promptly thereafter, the Corporation shall
issue and deliver to such holder a certificate or certificates for the number of
shares of Class A Common Stock to which such holder shall be entitled as
aforesaid. Such conversion shall be made at the close of business on the date of
such surrender and the person entitled
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to receive the shares of Class A Common Stock issuable on such conversion shall
be treated for all purposes as the record holder of such shares of Class A
Common Stock on such date.
(c) These provisions for conversion of Class B Common Stock
shall be subject to all applicable statutory limitations and restrictions.
5. Thirty Million (30,000,000) shares of Class A Common Stock
shall be reserved and set aside and such shares shall be issued upon conversion
of, and in exchange for, shares of Class B Common Stock as herein provided,
subject to increase in such number of shares of Class A Common Stock so reserved
and set aside in order to adjust for a Recapitalization.
6. Shares which have been converted hereunder shall revert to the
status of unissued shares and shall not be reissued. Such shares may be
eliminated as provided by law.
C. I. The Preferred Stock may be issued from time to time by the Board
of Directors as shares of one or more series of Preferred Stock and, except to
the extent that subdivision II below designates an initial series of Preferred
Stock and fixes the powers, preferences and relative, participating, optional or
other special rights of shares of, and the qualifications, limitations or
restrictions of, such initial series, and subject to the provisions hereof and
the limitations prescribed by law, the Board of Directors is expressly
authorized, prior to issuance, in the resolution or resolutions providing for
the issue of, or providing for a change in the number of, shares of any
particular series and by filing a certificate pursuant to the DGCL, to establish
or change the number of shares to be included in each such
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series and to fix the designation, powers, preferences and relative,
participating, optional or other special rights of shares of, and the
qualifications, limitations or restrictions of, each such series.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
1. The number of shares constituting that series and the
distinctive designation of that series;
2. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and whether
they shall be payable in preference to, or in another relation to, the dividends
payable on any other class or classes or series of stock;
3. Whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such voting rights;
4. Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion or exchange rate in such
events as the Board of Directors shall determine;
5. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed, the
date or dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
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6 Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of shares of that
series, and, if so, the terms and amounts of such sinking fund;
7. The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of the Corporation
or any subsidiary, upon the issue of any additional stock (including additional
shares of such series or any other series) and upon payment of dividends or the
making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of any outstanding stock of the
Corporation,
8. The right of the shares of that series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and whether such rights shall be in preference to, or in another
relation to, the comparable rights of any other class or classes or series of
stock; and
9. Any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that series.
C. II. The designation, powers, preferences and relative,
participating, optional or other special rights of, and the qualifications,
limitations or restrictions of, the initial series of Preferred Stock, to
consist of Fifteen Million (15,000,000) shares of Preferred Stock, shall be as
follows:
1. Designation. The designation of the initial series of
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Preferred Stock shall be "Series A Convertible Preferred Stock, par value $.01
per share" ("Series A Convertible Preferred Stock").
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2. Conversion. Each holder of record of a share of Series A
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Convertible Preferred Stock may at any time or from time to time, in such
holder's sole discretion and at such holder's option, convert any whole number
or all of such holder's shares of Series A Convertible Preferred Stock into
fully paid and nonassessable shares of Class A Common Stock at the rate of one
share of Class A Common Stock for each share of Series A Convertible Preferred
Stock surrendered for conversion. Following the occurrence of a
Recapitalization, each share of Series A Convertible Preferred Stock shall be
convertible into the kind and number of shares of stock or other securities or
property of the Corporation or otherwise to which the holder of such share of
Series A Convertible Preferred Stock would have been entitled to receive if such
holder had converted such share into Class A Common Stock immediately prior to
such Recapitalization. Adjustments to the conversion rate shall similarly apply
to each successive Recapitalization.
Any such conversion may be effected by the holder of Series A Convertible
Preferred Stock by surrendering such holder's certificate or certificates for
the shares of Series A Convertible Preferred Stock to be converted, duly
endorsed, at the office of the Corporation or the office of any transfer agent
for the Class A Common Stock, together with a written notice to the Corporation
at such office that such holder elects to convert all or a specified number of
such shares of Series A Convertible Preferred Stock. Promptly thereafter, the
Corporation shall issue and deliver to such holder a certificate or certificates
for the number of shares of Class A Common Stock to which such holder shall be
entitled as aforesaid. Such conversion shall be made at the close of business on
the date of such surrender and the person
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entitled to receive the shares of Class A Common Stock issuable on such
conversion shall be treated for all purposes as the record holder of such shares
of Class A Common Stock on such date.
3. Voting Rights. The holders of shares of Series A Convertible
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Preferred Stock shall not be entitled to vote at any annual or special meeting
of the stockholders of the Corporation or at any other time that any matter is
submitted to a vote or for the consent of the stockholders. So long as any
shares of the Series A Convertible Preferred Stock are outstanding, the
Corporation shall not, without first obtaining the approval by vote or written
consent, in the manner provided by law, of a majority of the total number of
shares of the Series A Convertible Preferred Stock at the time outstanding,
voting separately as a class, alter or change any or all of the rights,
preferences, privileges and restrictions granted to or imposed upon the Series A
Convertible Preferred Stock or increase or decrease the authorized number of
shares of Series A Convertible Preferred Stock.
4. Dividends. The holders of shares of Series A Convertible
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Preferred Stock shall receive dividends and distributions of the Corporation
ratably with the holders of shares of Class A Common Stock, Class B Common Stock
and Class C Common Stock.
5. Liquidation, Dissolution, Winding Up or Insolvency. In the
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event of any liquidation, dissolution, winding up or insolvency of the
Corporation, whether voluntary or involuntary, before any distribution or
payment is made to any holders of shares of Class A Common Stock, Class B Common
Stock and Class C Common Stock or any other class or series of capital stock of
the Corporation
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designated to be junior to the Series A Convertible Preferred Stock, and subject
to the liquidation rights and preferences of any class or series of preferred
stock designated in the future to be senior to, or on a parity with, the Series
A Convertible Preferred Stock with respect to liquidation preferences, the
holders of Series A Convertible Preferred Stock shall be entitled to be paid
first out of the assets of the Corporation available for distribution to holders
of capital stock of all classes whether such assets are capital, surplus or
earnings ("Available Assets"), an amount equal to $9.5248159 per share of Series
A Convertible Preferred Stock, together with the amount of any accrued or
capitalized dividends in respect thereof (the "Liquidation Preference"). After
payment in full to the holders of Series A Convertible Preferred Stock of the
Liquidation Preference, holders of the Series A Convertible Preferred Stock
shall, as such, have no right or claim to any of the remaining Available Assets.
D. Upon the filing and effectiveness (the "Effective Time") of this
Restated Certificate of Incorporation pursuant to the DGCL to reflect the
addition of this paragraph to Article FOURTH of the Corporation's certificate of
incorporation, each share of the Corporation's Class A Common Stock, par value
$.01 per share, or Class B Common Stock, par value $.01 per share issued and
outstanding immediately prior to the Effective Time (the "Old Common Stock")
shall be reclassified as and changed and converted into 53,514 validly issued,
fully paid, and non-assessable shares of Class A Common Stock or 53,514 validly
issued, fully paid, and non-assessable shares of Class B Common Stock,
respectively, without any action by the holder thereof. Each certificate that
prior to the Effective
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Time represented a share or shares of Old Common Stock shall thereafter
represent that number of shares of Class A Common Stock and the number of shares
of Class B Common Stock into which the share or shares of Old Common Stock
represented by such certificate shall have been reclassified; provided, however,
that each record holder of a stock certificate or certificates that prior to the
Effective Time represented a share or shares of Old Common Stock shall receive,
upon surrender of such certificate or certificates, a new certificate or
certificates evidencing and representing the number of shares of Class A Common
Stock or the number of shares of Class B Common Stock to which such record
holder is entitled pursuant to the foregoing reclassification.
FIFTH: Elections of directors need not be by written ballot. The books of
the Corporation may be kept (subject to any provision contained in the DGCL or
other applicable statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
bylaws of the Corporation. The number of directors shall be such number as from
time to time shall be fixed by, or in the manner provided in, the bylaws of the
Corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend,
change, add to or repeal the bylaws of the Corporation. In addition to the
powers and authority hereinbefore or by statute expressly conferred upon them,
the directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the statutes of Delaware, this Restated
Certificate of Incorporation,
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and any bylaws adopted by the stockholders; provided, however, that no bylaws
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hereafter adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such bylaws had not been adopted.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation in
accordance with the laws of Delaware or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation in
accordance with the laws of Delaware, order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
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EIGHTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL, or (iv) for any transaction from which such director derived an improper
personal benefit. No amendment to or repeal of this Article EIGHTH shall
adversely affect any right or protection of any director of the Corporation
existing at the time of such amendment or repeal for or with respect to any acts
or omissions of such director occurring prior to such amendment or repeal.
NINTH: The Corporation shall indemnify to the full extent authorized or
permitted by the laws of the State of Delaware any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation, or by reason of the fact that such director or officer is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, domestic or foreign, against expenses (including attorneys' fees)
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding, and shall advance
expenses incurred by any such officer or
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director in defending any such action, suit or proceeding to the full extent
authorized or permitted by the laws of the State of Delaware upon receipt of an
undertaking that he is not entitled to be indemnified by the Corporation as
authorized by Section 145 of the DGCL. Nothing contained herein shall affect any
rights to indemnification to which employees other than directors and officers
may be entitled by law. No amendment to or repeal of this Article NINTH shall
apply to or have any effect on any right to indemnification provided hereunder
with respect to any acts or omissions occurring prior to such amendment or
repeal.
TENTH: The Corporation expressly elects not to be governed by Section 203
of the DGCL.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in its Certificate of Incorporation, or any
amendment thereof, in the manner now or hereafter prescribed by the laws of the
State of Delaware or the Certificate of Incorporation, and all rights conferred
upon stockholders of the Corporation are granted subject to this reservation.
TWELFTH: Notwithstanding any other provision of this Restated Certificate
of Incorporation to the contrary, outstanding shares of stock of the Corporation
shall always be subject to redemption by the Corporation, by action of the Board
of Directors, if in the judgment of the Board of Directors such action should be
taken, pursuant to Section 151(b) of the DGCL or any other applicable provision
of law, to the extent necessary to prevent the loss or secure the reinstatement
of any license or franchise from any governmental agency held by the Corporation
or any of its subsidiaries to conduct any portion of the business of the
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Corporation or any of its subsidiaries, which license or franchise is
conditioned upon some or all of the holders of the Corporation's stock
possessing prescribed qualifications. The terms and conditions of such
redemption shall be as follows:
(a) The redemption price of the shares to be redeemed pursuant to this
Article TWELFTH shall be determined by the Board of Directors and shall be equal
to the Fair Market Value (as defined herein) of such shares or, if such shares
were purchased by one or more Disqualified Holders (as defined herein) within
one year of the Redemption Date (as defined herein), the lesser of (i) the Fair
Market Value of such shares and (ii) the purchase price paid by such
Disqualified Holder for such shares.
(b) At the election of the Corporation, the redemption price of such
shares may be paid in cash, Redemption Securities (as defined herein) or any
combination thereof.
(c) If fewer than all shares held by Disqualified Holders are to be
redeemed, the shares to be redeemed shall be selected in such manner as shall be
determined by the Board of Directors, which may include selection first of the
most recently purchased shares thereof, selection by lot or selection in any
other manner determined by the Board of Directors.
(d) At least 30 days' prior written notice of the Redemption Date
shall be given to any Disqualified Holder of shares selected to be redeemed
(unless waived in writing by any such holder), provided that the Redemption Date
may be the date on which written notice shall be given to such holder if the
cash or Redemption Securities necessary to effect the redemption shall have been
deposited
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in trust for the benefit of such holder and subject to immediate withdrawal by
it upon surrender of the stock certificates formerly representing the shares
redeemed.
(e) From and after the Redemption Date, any and all rights of whatever
nature that any Disqualified Holder may have with respect to any shares selected
for redemption (including, without limitation, any rights to vote or participate
in dividends declared on stock of the same class or series as such shares) shall
cease and terminate, and such Disqualified Holder shall thenceforth be entitled
only to receive, with respect to such shares, the cash or Redemption Securities
payable upon redemption.
(f) The Board of Directors may also impose additional terms and
conditions.
(g) For purposes of this Article TWELFTH:
(i) "Disqualified Holder" shall mean any holder of shares of
stock of the Corporation whose holding of such stock, either individually or
when taken together with the holding of shares of stock of the Corporation by
any other holders, may result, in the judgment of the Board of Directors, in the
loss of, or the failure to secure the reinstatement of, any license or franchise
from any governmental agency held by the Corporation or any of its subsidiaries
to conduct any portion of the business of the Corporation or any of its
subsidiaries.
(ii) "Fair Market Value" of a share of the Corporation's stock
of any class or series shall mean the average Closing Price (as defined herein)
for such a share for each of the 45 most recent days on which shares of stock of
such class or series shall have been traded preceding the day on which notice of
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redemption shall be given pursuant to paragraph (d) of this Article TWELFTH;
provided, however, that if shares of stock of such class or series are not
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traded on any securities exchange or in the over-the-counter market, "Fair
Market Value" shall be determined by the Board of Directors in good faith.
"Closing Price" on any day means the reported closing sales price or, in case no
such sale takes place, the average of the reported closing bid and asked prices
on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such stock
is not listed on any such exchange, the highest closing sales price or bid
quotation for such stock on the Nasdaq National Market of The Nasdaq Stock
Market, Inc. or any system then in use, or if no such prices or quotations are
available, the fair market value on the day in question as determined by the
Board of Directors in good faith.
(iii) "Redemption Date" shall mean the date fixed by the Board
of Directors for the redemption of any shares of stock of the Corporation
pursuant to this Article TWELFTH.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any of its subsidiaries or any other
corporations, or any combination thereof, having such terms and conditions as
shall be approved by the Board of Directors and which, together with any cash to
be paid as part of the redemption price, in the opinion of any investment
banking firm selected by the Board of Directors (which may be a firm which
provides other investment banking, brokerage or other services to the
Corporation), has a value, at the time notice of redemption is given pursuant to
paragraph (d) of this Article TWELFTH, at least
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equal to the price required to be paid pursuant to paragraph (a) of this Article
TWELFTH (assuming for purposes of such valuation, in the case of Redemption
Securities to be publicly traded, such Redemption Securities were fully
distributed and trading under normal conditions).
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<PAGE>
IN WITNESS WHEREOF, XM Satellite Radio Holdings Inc. has caused this
Restated Certificate of Incorporation to be signed by its Senior Vice President,
General Counsel and Secretary, Joseph M. Titlebaum, this 30th day of September,
1999.
/s/ Joseph M. Titlebaum
------------------------------------
Name: Joseph M. Titlebaum
Title: Senior Vice President,
General Counsel and Secretary
-20-
<PAGE>
Exhibit 2
RESTATED BYLAWS OF
XM SATELLITE RADIO HOLDINGS INC.
(As of September 9, 1999)
A Delaware Corporation
ARTICLE I.
Offices
SECTION 1. Registered Office. The registered office of XM Satellite Radio
Holdings Inc. (hereinafter called the "Corporation") shall be within the State
of Delaware.
SECTION 2. Other Offices. The Corporation may also have offices at such
place or places as the Board of Directors shall from time to time determine or
the business of the Corporation may require.
ARTICLE II.
The Stockholders;
Meetings of the Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders shall be
held at any such place, either within or without the State of Delaware, but
within the United States of America, as shall be designated from time to time by
the Board of Directors and stated in the notice of meeting or in a duly executed
waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may come
before the meeting shall be held at such time and place as shall be determined
by the Board of Directors and stated in the notice of the meeting.
<PAGE>
SECTION 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the Board of Directors, by stockholders holding at least fifteen percent of
the outstanding common stock of the Corporation or by the Chairman, the Chief
Executive Officer or the President.
SECTION 4. Notice of Meetings. Notice of meetings of the stockholders
shall be given as required by applicable law.
SECTION 5. Organization. At every meeting of the stockholders, the
Chairman shall preside, or in his or her absence or inability to act, the person
whom the Chairman, the Chief Executive Officer or the President shall appoint
shall act as chairman of the meeting. The Secretary, or, in his or her absence
or inability to act, the person whom the chairman of the meeting shall appoint,
shall act as secretary of the meeting and keep the minutes thereof.
SECTION 6. Order of Business. The order of business at all meetings of
the stockholders shall be as determined by the chairman of the meeting.
SECTION 7. Quorum at Meetings. Stockholders may take action on a matter
at a meeting only if a quorum exists with respect to that matter. Except as
otherwise provided by statute or by the Certificate of Incorporation, the
holders of a majority of the shares entitled to vote at the meeting, and who are
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business. Where a separate
vote by a class or series or classes or series is required, a majority of the
outstanding shares of such class or series or classes or series, present in
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<PAGE>
person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter. Once a share is represented
for any purpose at a meeting (other than solely to object (1) to holding the
meeting or transacting business at the meeting, or (2) (if it is a special
meeting) to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice), it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting shares represented
at a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time.
SECTION 8. Stockholder Proposals. For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 60 days or more
than 90 days prior to the meeting; provided, however, that in the event that
less than 70 days' notice of the date of the meeting is given to stockholders or
prior public disclosure of the date of the meeting is made, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the annual
meeting was mailed or such public disclosure was made. A stockholder's notice
to the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c)
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the class and number of shares of the Corporation which are beneficially owned
by the stockholder, (d) any material interest of the stockholder in such
business and (e) the same information required by clauses (b), (c) and (d) above
with respect to any other stockholder that, to the knowledge of the stockholder
proposing such business, supports such proposal. Notwithstanding anything in
these Bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 3.
The chairman of an annual meeting shall, if the facts warrant, determine and
declare to the annual meeting that a matter of business was not properly brought
before the meeting in accordance with the provisions of this Section 3, and if
he or she should so determine, he or she shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
SECTION 9. Action by Consent. Any action required or permitted to be
taken at any annual or special meeting of the stockholders of the Corporation
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by
stockholders holding outstanding stock having not less than the minimum number
of votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation and the other stockholders.
ARTICLE III.
Board of Directors
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors.
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<PAGE>
SECTION 2. Number, Qualifications, Election and Term of Office. The Board
of Directors shall initially consist of that number of directors as provided for
in that certain Shareholders Agreement dated as of July 7, 1999, by and among
the Corporation, American Mobile Satellite Corporation and the Investors named
therein (the "Shareholders Agreement"). Thereafter, subject to the provisions
of the Shareholders Agreement, the number of directors shall be between three
and 15, unless otherwise determined from time to time by the affirmative vote of
at least a majority of the Board of Directors. Members of the Board need not be
residents of the State of Delaware and need not be stockholders of the
Corporation. Subject to the provisions of the Shareholders Agreement, and except
as set forth in the bylaws, directors shall be elected at the annual meeting of
the stockholders.
SECTION 3. Place of Meetings. Meetings of the Board of Directors shall be
held at such place or places, within or without the State of Delaware, as the
Board of Directors may from time to time determine or as shall be specified in
the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of the stockholders,
on the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be
specified in a notice thereof given as hereinafter provided in Section 7 of this
Article III.
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SECTION 5. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such time and place as the Board of Directors may fix. Notice
of regular meetings of the Board of Directors need not be given except as
otherwise required by statute or these Bylaws.
SECTION 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman, the Chief Executive Officer or the President or
at the request of one-third of the directors.
SECTION 7. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 7, in which notice shall be stated the time and place of the meeting.
Except as otherwise required by these Bylaws, such notice need not state the
purposes of such meeting. Notice of each such meeting shall be mailed, postage
prepaid, to each director and to each party with observation rights as provided
for in the Shareholders Agreement, addressed to his or her residence or usual
place of business, by first class mail or by overnight courier, at least five
(5) days before the day on which such meeting is to be held, or shall be sent
addressed to such party at such place by telegraph, cable, telex, telecopier, or
other similar means, or be delivered to such director personally or be given to
him or her by telephone or other similar means, at least seventy-two (72) hours
before the time at which such meeting is to be held and if given by telephone or
other similar means, shall be followed by a confirmation in writing by
telegraph, cable, telex, telecopier or similar means within twenty-four (24)
hours after such telephone or other similar means, but such confirmation shall
not be necessary for the validity of such notice. Notice of any such meeting
need not
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be given to any director who shall, either before or after the meeting, submit a
signed waiver of notice or who shall attend such meeting, except when he or she
shall attend for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
SECTION 8. Nomination of Directors. Nominations of persons for election
to the Board of Directors may be made by the Board of Directors or by any
stockholder of the Corporation entitled to vote for the election of directors at
the annual meeting who complies with the notice procedures set forth in this
Section 8. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
60 days or more than 90 days prior to the meeting; provided, however, that in
the event that less than 70 days' notice of the date of the meeting is given to
stockholders or prior public disclosure of the date of the meeting is made,
notice by the stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
annual meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the Corporation which are beneficially owned by such person, and (iv) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such person's written consent to being
named in
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<PAGE>
the proxy statement as a nominee and to serving as a director if elected); and
(b) as to the stockholder giving notice (i) the name and address, as they appear
on the Corporation's books, of the stockholder proposing such nomination, and
(ii) the class and number of shares of the Corporation which are beneficially
owned by the stockholder. No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures set forth
in this Section 8. The Chairman shall, if the facts warrant, determine and
declare to the annual meeting that a nomination was not made in accordance with
the provisions of this Section 8, and if the Chairman should so determine, the
Chairman shall so declare to the meeting and the defective nomination shall be
disregarded.
SECTION 9. Quorum and Manner of Acting. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, and, except as otherwise expressly required
by statute or the Certificate of Incorporation or these Bylaws, the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a quorum at any
meeting of the Board of Directors, a majority of the directors present thereat
may adjourn such meeting to another time and place. Notice of the time and
place of any such adjourned meeting shall be given to all of the directors
unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice shall only be given to the
directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called. The
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directors shall act only as a Board and the individual directors shall have no
power as such.
SECTION 10. Organization. At each meeting of the Board of Directors, the
Chairman shall preside, or in his or her absence or inability to act, a director
chosen by a majority of the directors present shall act as chairman of the
meeting and preside thereat. The person appointed by the chairman shall act as
secretary of the meeting and keep the minutes thereof.
SECTION 11. Resignations. Any director of the Corporation may resign at
any time by giving written notice of his or her resignation to the Corporation,
attention: Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 12. Vacancies. Unless otherwise provided for by the Shareholders
Agreement, vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may be filled by the affirmative vote of a
majority of the directors then in office, although fewer than a quorum, or by a
sole remaining director. Whenever the holders of any class or classes of stock
or series thereof are entitled to elect one or more directors by the provisions
of the Certificate of Incorporation, vacancies and newly created directorships
of such class or classes or series may be filled by the affirmative vote of a
majority of the directors elected by such class or classes or series thereof
then in
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office, or by a sole remaining director so elected. Each director so chosen
shall hold office until the next election of directors of the class to which
such director was appointed, and until such director's successor is elected and
qualified, or until the director's earlier death, resignation or removal. In the
event that one or more directors resign from the Board, effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office until the next election of directors,
and until such director's successor is elected and qualified, or until the
director's earlier death, resignation or removal.
SECTION 13. Compensation. The Board of Directors shall compensate the
directors for serving as directors, and shall reimburse the directors for any
expenses incurred in attending the meetings of the Board of Directors or any
committee thereof, solely to the extent approved by the Board of Directors..
SECTION 14. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of three or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not the member or members constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to
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the extent provided in the resolution of the Board, shall have and may exercise
all the powers and authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
these Bylaws of the Corporation; and, unless the resolution designating it
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
SECTION 15. Action by Consent. Unless restricted by the Certificate of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board of Directors of such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such committee as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate of
Incorporation, any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting.
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ARTICLE IV.
Officers
SECTION 1. Number and Qualifications. The officers of the Corporation
shall be elected by the Board of Directors and shall include the Chairman, the
Chief Executive Officer, the President, one or more Vice Presidents, the
Treasurer and the Secretary and such other officers and assistant officers as
the Board of the Corporation may from time to time appoint, or authorize the
Chairman, the Chief Executive Officer or the President to appoint.
SECTION 2. Tenure. Officers and assistant officers of the Corporation
may, but need not, also be members of the Board. Each officer shall hold his or
her office until a successor is elected and qualified or until his or her
earlier death, resignation or removal in the manner specified in this Section 2
of Article IV of these Bylaws. Any officer elected or appointed by the Board
may be removed by the Board with or without cause. In addition, however, any
officer or assistant officer appointed by the Chairman, the Chief Executive
Officer or the President and, if the Chairman, the Chief Executive Officer or
the President is so authorized by the Board, any officer or assistant officer
appointed by the Board of the Corporation, may be removed from office by the
Chairman, the Chief Executive Officer or the President upon such terms as the
Chairman, the Chief Executive Officer or the President may specify in writing to
such officer. The removal of an officer without cause shall be without prejudice
to his or her contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights. Should any vacancy occur
among the officers by reason of any of the specified acts or events, the
position shall be filled by appointment made by a majority vote of the Board
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or by the Chairman, the Chief Executive Officer or the President, if he or she
is so authorized by a resolution approved by a unanimous vote of the Board.
SECTION 3. Duties. The powers and duties of the several officers shall be
as provided from time to time by resolution or other directive of the Board. In
the absence of such provisions, the respective officers shall have the powers
and shall discharge the duties customarily and usually held and performed by
like officers of corporations similar in organization and business purposes to
the Corporation.
SECTION 4. Compensation. Officers may be paid such reasonable
compensation as the Board may from time to time authorize and direct.
ARTICLE V.
Stock Certificates and Their Transfer
SECTION 1. Regulations. Subject to and upon the terms and conditions set
forth in the Shareholders Agreement, the Board of Directors may make such rules
and regulations, not inconsistent with these Bylaws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
ARTICLE VI.
Indemnification
SECTION 1. Indemnification. Each person who is or was a director or
officer of the Corporation shall be indemnified by the Corporation to the
fullest extent permitted or authorized by the General Corporation Law of the
State of Delaware or any other applicable laws as presently or hereafter in
effect. The Corporation may, but shall not be
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obligated to, maintain insurance, at its expense, for the benefit of the
Corporation and of any person to be indemnified.
ARTICLE VII.
General Provisions
SECTION 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock of
the Corporation, unless otherwise provided by statute or the Certificate of
Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may
modify or abolish any such reserves in the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be in such form as
shall be approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall end on
December 31 of each year. The fiscal year of the Corporation may hereafter be
changed, by resolution of the Board of Directors.
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SECTION 5. Checks, Notes, Drafts, Etc. All checks, notes, drafts or other
orders for the payment of money of the Corporation shall be signed, endorsed or
accepted in the name of the Corporation by such officer, officers, person or
persons as from time to time may be designated by the Board of Directors or by
an officer or officers authorized by the Board of Directors to make such
designation.
SECTION 6. Execution of Contracts, Deeds, Etc. The Board may authorize
any officer, employee or agent to enter into any contract or execute and deliver
any instrument in the name and on behalf of the Corporation. Such authority may
be general or confined to specific instances, or otherwise limited, and if the
Board so provides may be delegated by the person so authorized.
SECTION 7. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board. Such authority may be general or
confined to specific instances and if the Board so provides may be delegated by
the person so authorized.
ARTICLE VIII.
Amendments
SECTION 1. Amendments. Subject to the provisions of the Shareholders
Agreement, these Bylaws may be amended or repealed or new bylaws adopted by the
stockholders or the Board of Directors of the Corporation.
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EXHIBIT 3
XM SATELLITE RADIO HOLDINGS INC.
CERTIFICATE OF DESIGNATION
establishing the
Voting Powers, Designations, Preferences, Limitations,
Restrictions, and Relative Rights of
[ ]% Series B Convertible Redeemable Preferred Stock due 2012
------------------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------------------------------------
<PAGE>
XM SATELLITE RADIO HOLDINGS INC., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Issuer"), does
hereby certify that (i) pursuant to authority conferred upon the Board of
Directors of the Issuer by its Restated Certificate of Incorporation, as amended
to date, and pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors authorized the
creation and issuance of the Issuer's [ ]% Series B Convertible Redeemable
Preferred Stock (the "Preferred Stock"), and (ii) the following resolution
fixing the designations, preferences and rights of such Preferred Stock, which
was duly adopted by the Board of Directors, on January __, 2000, remains in full
force and effect. Certain capitalized terms used herein are defined in Article
10.
RESOLVED, that pursuant to the authority expressly granted to and vested in
the Board of Directors of the Issuer by the provisions of the Restated
Certificate of Incorporation, as amended from time to time (the
"Certificate of Incorporation"), and pursuant to Section 151(g) of the
General Corporation Laws of the State of Delaware, there be from the
60,000,000 shares of preferred stock, $0.01 par value, of the Issuer,
authorized to be issued pursuant to the Certificate of Incorporation, a
series of preferred stock, consisting of 3,000,000 shares of [ ]% Series
B Convertible Redeemable Preferred Stock (referred to herein as the
"Preferred Stock"), having the number of shares and, to the extent that the
designations, powers, preferences and relative and other special rights and
the qualifications, limitations and restrictions of such Preferred Stock
are not stated and expressed in the Certificate of Incorporation, the
powers, preferences and relative and other special rights and the
qualifications, limitations and restrictions thereof, as follows:
1. Designation and Number of Shares
1.1 The series will be known as the [ ]% Series B Convertible Redeemable
Preferred Stock.
1.2 The Preferred Stock will be a series consisting of 3,000,000 shares
with a liquidation preference of $50 per share of the authorized but unissued
preferred stock of the Issuer.
2. Dividends
2.1 Payment of Dividends
(a) Holders of Preferred Stock will be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available
therefor, cumulative dividends from the issue date of the Preferred Stock (the
"Issuance Date") accruing at the rate per annum equal to [ ]% of the
liquidation preference per share, payable quarterly in arrears on [ ],
[ ], [ ] and [ ] of each year (each such date being referred to
herein as a "Dividend Payment Date"), commencing [ ], 2000. All dividends
will be cumulative, whether or not earned or declared.
(b) Each distribution in the form of a dividend shall be payable in
arrears to Holders of record as they appear on the stock books of the Issuer on
each record date as
<PAGE>
established by the Board of Directors of the Issuer (the "Dividend Payment
Record Date") not more than 60 nor less than ten days preceding a Dividend
Payment Date.
(i) Dividends payable on the Preferred Stock for each full dividend
period will be computed by dividing the annual dividend rate by four.
Dividends payable on the Preferred Stock for any period less than a full
dividend period will be computed on the basis of a 360-day year consisting
of twelve 30-day months.
(ii) The Preferred Stock will not be entitled to any dividends,
whether payable in cash, property or securities, in excess of the full
cumulative dividends.
(iii) No interest, or sum of money in lieu of interest, will be
payable in respect of any accumulated and unpaid dividends which may be in
arrears.
(c) Dividends, to the extent declared by the Issuer's Board of
Directors may, at the option of the Issuer, be paid in cash, by delivery of
fully paid and nonassessable shares of the Issuer's Class A common stock (the
"Common Stock"), or a combination thereof. If the Issuer elects to pay dividends
in shares of Common Stock, such shares of Common Stock shall be valued for such
purpose:
(i) If on the date of such payment, such shares of Common Stock are
freely tradable, such shares of Common Stock shall be valued at 95% of
Average Market Value.
(ii) If on the date of such payment, such shares of Common Stock are
not freely tradable, such shares of Common Stock shall be valued at 90% of
Average Market Value.
2.2 Declaration of Dividends
(a) No dividends or other distributions (other than a dividend or
distribution in Junior Securities) may be declared, made or paid or funds set
apart for payment on the Junior Securities or Parity Securities, and no Junior
Securities or any Parity Securities, including the Preferred Stock, may be
repurchased, redeemed or otherwise acquired for any consideration (or any money
paid to or made available for a sinking fund for the redemption of any shares of
any such stock) by the Issuer (except by conversion into or exchange for Junior
Securities or in the case that monies for such dividends, distributions,
redemptions, purchases, or other acquisitions are derived from the proceeds of a
substantially concurrent offering of such securities), unless full cumulative
dividends shall have been or contemporaneously are paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on all
outstanding shares of Preferred Stock for all Dividend Payment Dates on or prior
to such declaration, payment, redemption, purchase or acquisition.
(b) No dividends may be declared, made or paid or funds set apart
for the payment of dividends upon any outstanding share of Preferred Stock with
respect to any dividend period unless all dividends for all preceding periods
have been paid or declared and a sum sufficient for the payment thereof is set
apart for the payment of such dividend upon all outstanding shares of Senior
Securities.
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(c) The holder of record of a share of Preferred Stock at the close
of business on a record date with respect to the payment of dividends on the
Preferred Stock will be entitled to receive such dividends with respect to such
share of Preferred Stock (except that Holders of shares called for redemption or
conversion on a Redemption Date or Conversion Date between the record date and a
date which is two days after the Dividend Payment Date will be entitled to
receive such dividend on such Redemption Date as indicated in Section 5.1 hereof
or such Conversion Date as indicated in Section 4 hereof, as applicable) on the
corresponding Dividend Payment Date, notwithstanding the conversion of such
share after such record date and prior to such Dividend Payment Date. A share of
Preferred Stock surrendered for conversion during the period from the close of
business on any record date for the payment of dividends to the opening of
business of the corresponding Dividend Payment Date must be accompanied by a
payment in cash, Common Stock or a combination thereof, depending on the method
of payment that the Issuer may chose to pay the dividend, in an amount equal to
the dividend payable on such dividend payment date, unless such share of
Preferred Stock has been called for redemption on a redemption date occurring
during the period from the close of business on any record date for the payment
of dividends to the close of business on the business day immediately following
the corresponding Dividend Payment Date. The dividend payment with respect to a
share of Preferred Stock called for redemption on a date during the period from
the close of business on any record date for the payment of dividends to the
close of business on the business day immediately following the corresponding
dividend payment date will be payable on such Dividend Payment Date to the
record holder of such share on such record date, notwithstanding the conversion
of such share after such record date and prior to such dividend payment date or
the Issuer's default in payment of the dividend due on that Dividend Payment
Date. No payment or adjustment will be made upon conversion of shares of
Preferred Stock for accumulated and unpaid dividends or for dividends with
respect to the Common Stock issued upon such conversion.
(d) Except as provided in Section 2.2(b) and in Section 4.2, the
Issuer shall make no payment or allowance for unpaid dividends, whether or not
in arrears, on converted shares or for dividends on the shares of Common Stock
issued upon conversion.
(e) The Issuer will take all actions required or permitted under
Delaware corporate law to permit the payment of dividends on the Preferred
Stock, including, without limitation, through the revaluation of its assets in
accordance with Delaware General Corporation Laws.
3. Ranking
3.1 The Preferred Stock will, with respect to dividend distributions and
distributions upon the liquidation, winding up or dissolution of the Issuer,
rank:
(a) senior to all classes of Common Stock, Series A Convertible
Preferred Stock and each other class of Capital Stock or series of preferred
stock issued by the Issuer, which is established after the date of this
Certificate of Designation, the terms of which do not expressly provide that
such class or series will rank senior to or on a parity with the Preferred Stock
as to dividend distributions and distributions upon the liquidation, winding up
or
3
<PAGE>
dissolution of the Issuer (collectively, with the Common Stock, referred to as
the "Junior Securities");
(b) on a parity with any class of Capital Stock or series of
preferred stock issued by the Issuer, which is established after the date of
this Certificate of Designation by the Board of Directors, the terms of which
expressly provide that such class or series will rank on a parity with the
Preferred Stock as to dividend distributions and distributions upon the
liquidation, winding up or dissolution of the Issuer (collectively referred to
as "Parity Securities"); and
(c) junior to each class of Capital Stock or series of preferred
stock issued by the Issuer, which is established after the date of this
Certificate of Designation by the Board of Directors, the terms of which
expressly provide that such class or series will rank senior to the Preferred
Stock as to dividend distributions and distributions upon liquidation, winding-
up or dissolution of the Issuer (collectively referred to as "Senior
Securities").
3.2 Except as otherwise provided herein, the Issuer is entitled to amend
its Certificate of Incorporation to authorize one or more additional series of
preferred stock, file certificates of designation, and issue without restriction
from time to time, any series of Junior Securities, Parity Securities, or Senior
Securities.
4. Conversion
4.1 Conversion Rights
(a) Each Holder of Preferred Stock shall have the right, at its
option, at any time and from time to time to convert, subject to the terms and
provisions of this Article 4, any or all of such Holder's shares of Preferred
Stock. In such case, the shares of Preferred Stock shall be converted into such
whole number of fully paid and nonassessable shares of Common Stock as is equal,
subject to Section 4.3, to:
the product of the number of shares of Preferred Stock being so converted
multiplied by the quotient of (i) the Liquidation Preference divided by
(ii) the Conversion Price then in effect,
except that with respect to any share which shall be called for redemption such
right shall terminate at the close of business on the Business Day prior to the
Redemption Date unless the Issuer shall default in making the payment due upon
redemption thereof.
(b) The conversion right of a Holder of Preferred Stock shall be
exercised by the Holder by the surrender of the certificate representing shares
to be converted to the Issuer or to the Transfer Agent accompanied by the
Conversion Notice.
(i) Immediately prior to the close of business on the Conversion
Date, each converting Holder of Preferred Stock shall be deemed to be the
Holder of record of Common Stock issuable upon conversion of such Holder's
Preferred Stock notwithstanding that the share register of the Issuer shall
then be closed or that certificates representing such Common Stock shall
not then be actually delivered to such person.
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<PAGE>
(ii) Upon notice from the Issuer, each Holder of Preferred Stock so
converted shall promptly surrender to the Issuer or the Transfer Agent
certificates representing the shares so converted (if not previously
delivered), duly endorsed in blank or accompanied by proper instruments of
transfer.
(iii) On any Conversion Date, all rights with respect to the shares of
Preferred Stock so converted, including the rights, if any, to receive
notices, will terminate, except the rights of Holders thereof to: (1)
receive certificates for the number of shares of Common Stock into which
such shares of Preferred Stock have been converted; (2) receive the payment
in cash or shares of Common Stock of any accumulated and unpaid dividends
accrued thereon pursuant to Section 4.2 hereof; and (3) exercise the rights
to which they are entitled as Holders of Common Stock.
(c) If the Conversion Date shall not be a Business Day, then such
conversion right shall be deemed exercised on the next Business Day.
(d) When shares of Preferred Stock are converted pursuant to this
Section 4.1, all accumulated and unpaid dividends, including dividends payable
on the Conversion Date pursuant to Section 2.2, or liquidated damages (whether
or not in arrears or currently payable) on the Preferred Stock so converted to
(and not including) the Conversion Date shall immediately be due and payable, at
the Issuer's option:
(i) in cash;
(ii) by delivery of the Issuer's Common Stock; or
(iii) a combination thereof.
4.2 The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) Stock Splits and Combinations. In case the Issuer shall at any
-----------------------------
time or from time to time after the Issuance Date (i) subdivide or split the
outstanding shares of Common Stock, (ii) combine or reclassify the outstanding
shares of Common Stock into a smaller number of shares or (iii) issue by
reclassification of the shares of Common Stock any shares of capital stock of
the Issuer, then, and in each such case, the Conversion Price in effect
immediately prior to such event or the record date therefor, whichever is
earlier, shall be adjusted so that the holder of any shares of Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number of
shares of Common Stock or other securities of the Issuer which such holder would
have owned or have been entitled to receive after the occurrence of any of the
events described above, had such shares of Preferred Stock been surrendered for
conversion immediately prior to the occurrence of such event or the record date
therefor, whichever is earlier. An adjustment made pursuant to this subparagraph
(a) shall become effective at the close of business on the day upon which such
corporate action becomes effective. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) Stock Dividends in Common Stock. In case the Issuer shall at any
-------------------------------
time or from time to time after the Issuance Date pay a dividend or make a
distribution in shares of Common Stock on any class of capital stock of the
Issuer other than dividends or distributions of
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<PAGE>
shares of Common Stock or other securities with respect to which adjustments are
provided in paragraph (a) above, the Conversion Price shall be adjusted so that
the holder of each share of Preferred Stock shall be entitled to receive upon
conversion thereof the number of shares of Common Stock determined by
multiplying (1) the applicable Conversion Price by (2) a fraction, the numerator
of which shall be the number of shares of Common Stock theretofore outstanding
and the denominator of which shall be the sum of such number of shares and the
total number of shares issued in such dividend or distribution.
(c) Issuance of Rights or Warrants. In case the Issuer shall issue to
------------------------------
all holders of Common Stock rights or warrants entitling such holders to
subscribe for or purchase Common Stock at a price per share less than the
Current Market Price, the Conversion Price in effect immediately prior to the
close of business on the record date fixed for determination of shareholders
entitled to receive such rights or warrants shall be reduced by multiplying such
Conversion Price by a fraction, the numerator of which is the sum of the number
of shares of Common Stock outstanding at the close of business on such record
date and the number of shares of Common Stock that the aggregate offering price
of the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such Current Market Price, and the denominator of
which is the sum of the number of shares of Common Stock outstanding at the
close of business on such record date and the number of additional shares of
Common Stock so offered for subscription or purchase. For purposes of this
subparagraph (c), the issuance of rights or warrants to subscribe for or
purchase securities convertible into Common Stock shall be deemed to be the
issuance of rights or warrants to purchase the Common Stock into which such
securities are convertible at an aggregate offering price equal to the sum of
the aggregate offering price of such securities and the minimum aggregate amount
(if any) payable upon conversion of such securities into Common Stock. Such
adjustment shall be made successively whenever any such event shall occur.
(d) Distribution of Indebtedness, Securities or Assets. In case the
--------------------------------------------------
Issuer shall distribute to all holders of Common Stock (whether by dividend or
in a merger, amalgamation or consolidation or otherwise) evidences of
indebtedness, shares of capital stock of any class or series, other securities,
cash or assets (other than Common Stock, rights or warrants referred to in
subparagraph (c) above or a dividend payable exclusively in cash and other than
as a result of a Fundamental Change), the Conversion Price in effect immediately
prior to the close of business on the record date fixed for determination of
shareholders entitled to receive such distribution shall be reduced by
multiplying such Conversion Price by a fraction, the numerator of which is the
Current Market Price on such record date less the fair market value (as
determined by the Board of Directors of the Issuer, whose determination in good
faith shall be conclusive) of the portion of such evidences of indebtedness,
shares of capital stock, other securities, cash and assets so distributed
applicable to one share of Common Stock and the denominator of which is the
Current Market Price. Such adjustment shall be made successively whenever any
such event shall occur.
(e) Fundamental Changes. In case of any Fundamental Change, the
-------------------
holder of each share of Preferred Stock outstanding immediately prior to the
occurrence of such Fundamental Change shall have the right upon any subsequent
conversion to receive (but only out of legally available funds of the Issuer, to
the extent required by applicable law) the kind and
6
<PAGE>
amount of stock, other securities, cash and assets that such holder would have
received if such share had been converted immediately prior thereto.
(f) Anything in the above sections (a)-(e) to the contrary
notwithstanding, the Issuer shall not be required to give effect to any
adjustment in the Conversion Price unless and until the net effect of one or
more adjustments (each of which shall be carried forward until counted toward
adjustment), determined as above provided, shall have resulted in a change of
the Conversion Price by at least 1%, and when the cumulative net effect of more
than one adjustment so determined shall be to change the Conversion Price by at
least 1%, such change in the Conversion Price shall thereupon be given effect.
In the event that, at any time as a result of the provisions of this Section,
the holder of shares of Preferred Stock upon subsequent conversion shall become
entitled to receive any shares of capital stock of the Issuer other than Common
Stock, the number of such other shares so receivable upon conversion of shares
of Preferred Stock shall thereafter be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the provisions
contained herein.
(g) There shall be no adjustment of the Conversion Price in case of
the issuance of any stock of the Issuer in a merger, reorganization,
acquisition, reclassification, recapitalization or other similar transaction
except as set forth in the above paragraphs (a)-(e).
(h) In any case in which the above paragraphs (a)-(e) require that an
adjustment as a result of any event become effective from and after a record
date, the Issuer may elect to defer until after the occurrence of such event (i)
issuing to the holder of any shares of Preferred Stock converted after such
record date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion over and above the shares issuable on
the basis of the Conversion Price in effect immediately prior to adjustment and
(ii) paying to such holder any amount in cash in lieu of a fractional share of
Common Stock.
(i) If the Issuer shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or other
distribution, and shall thereafter and before the distribution to shareholders
thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of shares of Common
Stock issuable upon exercise of the right of conversion granted by the above
paragraphs (a)-(e) or in the Conversion Price then in effect shall be required
by reason of the taking of such record.
4.3 Upon a Change of Control, each Holder of Preferred Stock will have the
option, during the period commencing on the date that the applicable notice of
such Change of Control is mailed to Holders of Preferred Stock and ending on the
close of business on the 45/th/ day thereafter (the "Special Conversion Date")
to convert all, but not less than all, of such Holder's shares of Preferred
Stock into Common Stock at a conversion rate equal to the Liquidation Preference
divided by the Special Conversion Price.
(a) Within fifteen days after a Change of Control, notice of such
Change of Control shall be given by the Issuer by first-class mail to each
record Holder of shares of Preferred Stock, at such Holder's address as the same
appears on the books of the Issuer. Each such notice shall state: (i) that a
Change of Control has occurred; (ii) the last day on which the Change of Control
option may be exercised (the "Expiration Date"); (iii) the name and address of
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<PAGE>
the paying agent; and (iv) the procedures that Holders must follow to exercise
the Change of Control option.
(b) On or before the Expiration Date, each Holder of shares of
Preferred Stock wishing to exercise the Change of Control option shall surrender
the certificate or certificates representing the shares of Preferred Stock to be
converted, in the manner and at the place designated in the notice described in
Section 4.3 and on such date the cash or shares of Common Stock due to such
Holder shall be delivered to the person whose name appears on such certificate
or certificates as the owner thereof and each surrendered certificate shall be
returned to authorized but unissued shares. Upon surrender (in accordance with
the notice described in Section 4.3(a)) of the certificate or certificates
representing any shares to be so converted (properly endorsed or assigned for
transfer, if the Issuer shall so require and the notice shall so state), such
shares shall be converted by the Issuer at the Conversion Price as adjusted.
(c) Exercise by a holder of such holder's special conversion right
following a change of control is irrevocable, except that a holder may withdraw
its election to exercise such holder's special conversion right at any time
prior to the close of business on the Special Conversion Date by delivering a
written or facsimile transmission notice to the transfer agent at the address or
facsimile number specified in the change of control notice. Such notice, to be
effective, must be received by the transfer agent prior to the close of business
on the Special Conversion Date. All shares of Preferred stock tendered for
conversion pursuant to holders' special conversion rights as described herein
and not withdrawn will be converted at the close of business on the Special
Conversion Date.
4.4 If, as a result of any Conversion Price Adjustment Event, a Holder of
the Preferred Stock becomes entitled to receive upon conversion shares of two or
more classes of Capital Stock, the Issuer shall determine the reasonable
allocation of the adjusted Conversion Price between the classes of Capital
Stock. After such allocation, the Conversion Price of each class of Capital
Stock shall thereafter be subject to adjustment on terms applicable to the
Preferred Stock in this Article 4.
4.5 The Issuer shall at all times reserve and keep available for issuance
upon the conversion of the Preferred Stock such number of its authorized but
unissued shares of Common Stock as will from time to time be sufficient to
permit the conversion of all outstanding shares of Preferred Stock, and shall
take all action required to increase the authorized number of shares of Common
Stock if at any time there shall be insufficient authorized unissued shares of
Common Stock to permit such reservation or to permit the conversion of all
outstanding shares of Preferred Stock.
4.6 The issuance or delivery of certificates for Common Stock upon the
conversion of shares of Preferred Stock shall be made without charge to the
converting Holder of shares of Preferred Stock for such certificates or for any
tax in respect of the issuance or delivery of such certificates or the
securities represented thereby, and such certificates shall be issued or
delivered in the respective names of, or in such names as may be directed by,
the Holders of the shares of Preferred Stock converted; provided, however, that
the Issuer shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificate in
a name other than that of the Holder of the shares of Preferred Stock
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<PAGE>
converted, and the Issuer shall not be required to issue or deliver such
certificate unless or until the Person or Persons requesting the issuance or
delivery thereof shall have paid to the Issuer the amount of such tax or shall
have established to the reasonable satisfaction of the Issuer that such tax has
been paid.
5. Redemption of Preferred Stock
5.1 Optional Redemption of the Preferred Stock
(a) Shares of the Preferred Stock may not be required to be redeemed
prior to [ ], 2003.
(b) On or after [ ], 2003, the Preferred Stock may be redeemed for
cash, in whole or in part, at the option of the Issuer, at the following
Redemption Prices per share (expressed as percentages of the Liquidation
Preference), in each case, together with accumulated and unpaid dividends
(including an amount equal to a prorated dividend for any partial dividend
period), if any, to the Redemption Date, upon not less than 30 nor more than 60
days' prior written notice (the "Redemption Notice"), if redeemed during the
12-month period commencing on _______ of each of the years set forth below:
<TABLE>
<CAPTION>
Year Redemption
Price Per Share
<C> <S>
2003................................... %
2004................................... %
2005................................... %
2006................................... %
2007................................... %
2008................................... %
2009................................... %
2010 and thereafter.................... %
</TABLE>
(c) In the event that fewer than all the outstanding shares of the
Preferred Stock are to be redeemed, the shares to be redeemed will be determined
pro rata or by lot, as determined by the Issuer.
(d) From and after the applicable Redemption Date (unless the Issuer
shall be in default of payment of the Redemption Price), dividends on the shares
of the Preferred Stock to be redeemed on such Redemption Date shall cease to
accumulate, such shares shall no longer be deemed to be outstanding, and all
rights of the Holders thereof as stockholders of the Issuer (except the right to
receive the Redemption Price and accumulated dividend amounts and liquidation
penalties, if any through the Redemption Date) will cease.
(e) No such optional redemption may be authorized or made unless,
prior to giving the applicable Redemption Notice, all accumulated and unpaid
dividends for periods ended prior to the date of such Redemption Notice shall
have been paid in cash or Common Stock.
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<PAGE>
5.2 (a) In the event the Issuer shall elect to redeem shares of the
Preferred Stock pursuant to Section 5.1 hereof:
(i) The Issuer must make a public announcement of the redemption
and provide the Holders with the Redemption Notice referred to in Section
5.1(b) not fewer than 30 days nor more than 60 days' prior to the
Redemption Date.
(ii) On or before any Redemption Date, each Holder of shares of
Preferred Stock to be redeemed shall surrender the certificate or
certificates representing such shares of Preferred Stock (properly endorsed
or assigned, or transferred, if the Issuer shall so require and the
Redemption Notice shall so state) to the Issuer or the Redemption Agent (if
appointed) in the manner and at the place designated in the Redemption
Notice.
(iii) On the Redemption Date, the Issuer or the Redemption Agent, as
applicable, shall pay or deliver to the Holder whose name appears on such
certificate or certificates as the owner thereof, the full Redemption Price
due such Holder in cash, in fully paid and nonassessable shares of Common
Stock or in a combination thereof.
(iv) The shares represented by each certificate to be surrendered
shall be automatically (and without any further action of the Issuer or the
Holder) canceled as of the Redemption Date whether or not certificates for
such shares are returned to the Issuer and returned to authorized but
unissued shares of preferred stock of no series.
(v) If fewer than all the shares represented by any such
certificate are to be redeemed, a new certificate shall be issued
representing the unredeemed shares, without cost to the Holder, together
with the amount of cash, if any, in lieu of fractional shares.
(b) If a Redemption Notice shall have been given as provided in
Section 5.1, all rights of the Holders thereof as stockholders of the Issuer
with respect to shares so called for redemption (except for the right to receive
from the Issuer the Redemption Price) shall cease either (i) from and after the
Redemption Date (unless the Issuer shall default in the payment of the
Redemption Price, in which case such rights shall not terminate at the
Redemption Date) or (ii) if the Issuer shall so elect and state in the
Redemption Notice, from and after the time and date (which date shall be the
Redemption Date or an earlier date not less than 20 days after the date of
mailing of the Redemption Notice) on which the Issuer shall irrevocably deposit
in trust for the Holders of the shares to be redeemed with a designated
Redemption Agent as paying agent sufficient to pay at the office of such paying
agent, on the Redemption Date, the Redemption Price. Any money or shares of
Common Stock so deposited with such Redemption Agent which shall not be required
for such redemption shall be returned to the Issuer forthwith. Subject to
applicable escheat laws, any moneys or shares of Common Stock so set aside by
the Issuer and unclaimed at the end of one year from the Redemption Date shall
revert to the general funds of the Issuer, after which reversion the Holders of
such shares so called for redemption shall look only to the general funds of the
Issuer for the payment of the Redemption Price without interest. Any interest
accrued on funds held by the Redemption Agent shall be paid to the Issuer from
time to time.
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<PAGE>
(c) In the event that fewer than all the outstanding shares of the
Preferred Stock are to be redeemed, the shares to be redeemed shall be
determined pro rata or by lot, as determined by the Issuer, except that the
Issuer may redeem such shares held by any Holder of fewer than 100 shares (or
shares held by Holders who would hold fewer than 100 shares as a result of such
redemption), as may be determined by the Issuer.
5.3 Mandatory Redemption of Preferred Stock
(a) The Issuer will redeem all shares of Preferred Stock on [ ],
2012, at a Mandatory Redemption Price equaling 100% of the Liquidation
Preference, together with any accumulated and unpaid dividends to the date of
Mandatory Redemption, unless the Preferred Stock has already been redeemed or
converted. The Issuer shall send notice of such redemption to Holders upon not
less than 30 nor more than 60 days' prior written notice.
(b) The Issuer must make mandatory redemption payments on the
Preferred Stock by delivery of shares of Common Stock and makes such payments as
follows:
(i) If on the date of such payment, such shares of Common Stock are
freely tradable, such shares of Common Stock shall be valued at 95% of
Average Market Value.
(ii) If on the date of such payment, such shares of Common Stock are
not freely tradable, such shares of Common Stock shall be valued at 90% of
Average Market Value.
(c) If, as a matter of law, the Issuer is unable to issue Common
Stock in payment of the Mandatory Redemption Price, then the Issuer shall cause
the Preferred Stock to be converted on the date of such mandatory redemption
into the same number of shares of Common Stock as could otherwise have been
issued in satisfaction of the Mandatory Redemption Price, provided that the
Issuer shall have given the Holders of Preferred Stock notice of the exercise of
this option at least 30 days prior to the date of such mandatory redemption.
(d) The Issuer shall pay a Cash Adjustment, determined based on the
proceeds received by the Transfer Agent from the sale of that number of shares
of Common Stock, which the Issuer will deliver to the Transfer Agent for such
purpose, equal to the aggregate of all such fractions rounded up to the nearest
whole share, to each Holder that would otherwise be entitled to a fraction of a
share of Common Stock.
(i) The Transfer Agent shall sell such shares of Common Stock at the
best available prices and distribute the proceeds to the Holders in
proportion to their respective interests therein.
(ii) The Issuer will pay the expenses of the Transfer Agent with
respect to such sale, including brokerage commissions. Any portion of any
such payment that is declared and not paid through the delivery of shares
of Common Stock will be paid in cash. The Issuer shall make a public
announcement no later than the close of business on the tenth business day
prior to the record date for each dividend as to whether the Issuer
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will pay such dividend and, if so, the form of consideration the Issuer
will use to make such payment.
6. Liquidation Preference
6.1 Upon any voluntary or involuntary liquidation, dissolution or winding
up of the Issuer or reduction or decrease in its capital stock resulting in a
distribution of assets to the holders of any class or series of the Issuer's
capital stock, Holders of the Preferred Stock will be entitled to be paid, out
of assets of the Issuer available for distribution, the Liquidation Preference
per share plus an amount in cash equal to all accumulated and unpaid dividends
thereon to the date fixed for liquidation, dissolution or winding up (including
an amount equal to a prorated dividend for the period from the last dividend
payment date to the date fixed for liquidation, dissolution or winding up),
before any distribution is made on any Junior Securities, including, without
limitation, the Common Stock.
6.2 If, upon any voluntary liquidation, dissolution or winding-up of the
Issuer, the amounts payable with respect to the liquidation performance of the
Preferred Stock and all other Parity Securities are not paid in full, the
Holders of the Preferred Stock and the Parity Securities will share pro rata in
proportion to the full distribution to which each is entitled.
6.3 After payment of the full amount of the Liquidation Preference to
which they are entitled, the Holders of shares of the Preferred Stock will have
no right or claim to any of the remaining assets of the Issuer.
6.4 Neither the voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Issuer nor the consolidation
or merger of the Issuer with or into one or more entities will be deemed to be a
voluntary or involuntary liquidation, dissolution or winding-up of the Issuer or
reduction or decrease in capital stock, unless such sale, conveyance, exchange
or transfer shall be in connection with a liquidation, dissolution or winding-up
of the business of the Issuer or reduction or decrease in capital stock.
7. Voting Rights
7.1 Holders of the Preferred Stock have no voting rights with respect to
general corporate matters except as provided by law or as set forth herein.
7.2 Special Voting Rights
(a) If dividends payable on the Preferred Stock are in arrears and
unpaid for six quarterly periods, whether or not consecutive, the Holders of a
majority of the outstanding Preferred Stock voting separately as a class with
the shares of any other subsequently issued Parity Securities then titled to
similar voting rights (the "Voting Rights Class") will be entitled at the next
regular or special meeting of stockholders of the Issuer to elect such number of
members to the board of directors constituting at least 20% of the then existing
board of directors before such election, rounded to the nearest whole number,
provided, however, that such number shall be no less than one nor greater than
two, and the number of members of the board of directors will be immediately and
automatically increased by one or two, as the case may be.
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<PAGE>
(b) Such voting rights may be exercised at a special meeting of the
holders of the shares of the Voting Rights Class, called as hereinafter
provided, or at any annual meeting of stockholders held for the purpose of
electing directors, and thereafter at each such annual meeting until such time
as all dividends in arrears on the shares of Preferred Stock shall have been
paid in full, at which time or times such voting rights and the term of the
directors elected pursuant to Section 7.2(a) shall terminate and such directors
shall be deemed to have resigned.
(c) At any time when such voting rights shall have vested in holders
of shares of the Voting Rights Class described in Section 7.2(a), a proper
officer of the Issuer may call, and, upon the written request of the record
holders of shares representing twenty-five percent (25%) of the voting power of
the shares then outstanding of the Voting Rights Class addressed to the
Secretary of the Issuer, shall call a special meeting of the holders of shares
of the Voting Rights Class. Such meeting shall be held at the earliest
practicable date upon the notice required for annual meetings of stockholders at
the place for holding annual meetings of stockholders of the Issuer, or, if
none, at a place designated by the Board of Directors. Notwithstanding the
provisions of this Section 7.2(c), no such special meeting shall be called
during a period within the 60 days immediately preceding the date fixed for the
next annual meeting of stockholders, in which such case the election of
directors pursuant to Section 7.2(a) shall be held at such annual meeting of
stockholders.
(d) At any meeting held for the purpose of electing directors at
which the holders of the Voting Rights Class shall have the right to elect
directors as provided herein, the presence in person or by proxy of the holders
of shares representing more than fifty percent (50%) in voting power of the then
outstanding shares of the Voting Rights Class shall be required and shall be
sufficient to constitute a quorum of such class for the election of directors by
such class.
(e) Any director elected pursuant to the voting rights created under
this Section 7.2 shall hold office until the next annual meeting of stockholders
(unless such term has previously terminated pursuant to Section 7.2(b)) and any
vacancy in respect of any such director shall be filled only by vote of the
remaining director so elected by holders of the Voting Rights Class, or if there
be no such remaining director, by the holders of shares of the Voting Rights
Class at a special meeting called in accordance with the procedures set forth in
this Section 7.2, or, if no such special meeting is called, at the next annual
meeting of stockholders. Upon any termination of such voting rights, the term of
office of all directors elected pursuant to this Section 7 shall terminate and
such directors shall be deemed to have resigned.
7.3 The affirmative vote or consent of the Holders of at least 50% of the
outstanding Preferred Stock will be required for the issuance of any class of
Senior Securities (or security convertible into Senior Securities or evidencing
a right to purchase any shares or any class or series of Senior Securities), and
amendments to the Certificate of Designation that would affect adversely the
rights of Holders of Preferred Stock or authorize the issuance of any additional
shares of Preferred Stock.
7.4 The affirmative vote or consent of the Holders of at least 66 2/3% of
the outstanding Preferred Stock will be required for amendments to the Change of
Control
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provisions in this certificate. In all such cases each share of Preferred Stock
shall be entitled to one vote.
7.5 Except as set forth in this Certificate of Designation, the creation,
authorization or issuance of any shares of Junior Securities or Parity
Securities or an increase or decrease in the amount of authorized Capital Stock
of any class, including any preferred stock, shall not require the consent of
the Holders of the Preferred Stock and shall not be deemed to affect adversely
the rights, preferences, privileges or voting rights of Holders of shares of the
Preferred Stock.
7.6 The consent of the Holders of Preferred Stock shall not be required to
authorize (by way of reclassification or otherwise) or issue any Parity
Securities or any obligation or security convertible into or exchangeable into
or evidencing a right to purchase shares of any class or series of Parity
Securities.
8. Merger, Consolidation and Sale of Assets
8.1 Without the vote or consent of the Holders of at least 50% of the then
outstanding shares of Preferred Stock, the Issuer may not consolidate or merge
with or into, or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its assets to, any person unless (a) the entity
formed by such consolidation or merger (if other than the Issuer) or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made (in any such case, the "resulting entity") is a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia; (b) if the Issuer is not the resulting entity, the
Preferred Stock is converted into or exchanged for and becomes shares of such
resulting entity, having in respect of such resulting entity the same (or more
favorable) powers, preferences and relative, participating, optional or other
special rights thereof that the Preferred Stock had immediately prior to such
transaction; and (c) immediately after giving effect to such transaction, no
dividend arrearages which trigger voting rights have occurred and are
continuing. The resulting entity of such transaction shall thereafter be deemed
to be the issuer of the Preferred Stock or securities into which it is converted
for all purposes of this Certificate of Designation.
9. Amendment, Supplement and Waiver
9.1 Without the consent of any Holder of the Preferred Stock, subject to
the requirements of the Delaware General Corporation Law, the Issuer may amend
or supplement this Certificate of Designation to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Preferred Stock in addition to or
in place of certificated Preferred Stock, to provide for the assumption of the
Issuer's obligations to Holders of the Preferred Stock in the case of a merger
or consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Preferred Stock or that does not adversely affect
the legal rights under this Certificate of Designation of any such Holder.
10. Certain Definitions
Set forth below are certain defined terms used in this Certificate of
Designation.
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10.1 "Act" means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
10.2 "Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities, by agreement of or otherwise.
10.3 "Average Market Value" of Common Stock means the arithmetic average of
the current market value of the Common Stock for the ten trading days ending on
the fifth business day prior to (a) in the case of the payment of any dividend,
the record date for such dividend and (b) in the case of the mandatory
redemption payment, the date of such payment.
10.4 "Business Day" means any day other than a Legal Holiday.
10.5 "Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock or
partnership or membership interests, whether common or preferred.
10.6 "Cash Adjustment" will be determined based on the proceeds received by
the Transfer Agent from the sale of that number of shares of Common Stock, which
the Issuer will deliver to the Transfer Agent for such purpose, equal to the
aggregate of all such fractions rounded up to the nearest whole share.
10.7 "Closing Price" with respect to the Common Stock on any trading day,
means the last reported regular-way sale price of the Common Stock on the NYSE,
or if the Common Stock is not then listed on the NYSE, the last reported
regular-way sale price of the Common Stock on the principal stock exchange or
market of the Nasdaq Stock Market on which the Common Stock is then listed or
traded, or if the Common Stock is not then listed or traded on any such stock
exchange or market, the average of the closing bid and asked prices in the over-
the-counter market as furnished by any NYSE member firm selected from time to
time by the Issuer for that purpose.
10.8 "Change of Control" means: (a) the sale, lease, transfer, conveyance
or other disposition of all or substantially all of the assets of the Issuer to
any "person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of
the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in
one transaction or a series of related transactions, other than a Permitted
Owner or (b) the acquisition of beneficial ownership of shares of the Issuer's
Capital Stock by any "person" or "group" (within a meaning of Sections 13(d)(3)
and 14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other a Permitted Owner, by means of an exchange offer,
liquidation, tender offer, consolidation,
15
<PAGE>
merger, combination, reclassification, recapitalization or otherwise of more
than fifty percent (50%) of the total voting power of all classes of the Voting
Stock of the Issuer or a successor and/or warrants or options to acquire such
Voting Stock, entitled to vote generally in elections of the Issuer's board of
directors.
Notwithstanding clause (b) above, a merger or consolidation that would otherwise
constitute a Change of Control hereunder shall not constitute a Change of
Control if (i) the closing price per share of Common Stock for any five trading
days within the period of ten consecutive trading days ending immediately after
the announcement of such change of control equals or exceeds 105% of the
conversion price of the Preferred Stock in effect on each such trading day or
(ii) at least 90% of the consideration in the transaction or transactions
constituting a change of control pursuant to this clause consists of shares of
Common Stock traded or to be traded immediately following such change of control
on a national securities exchange or the Nasdaq National Market and, as a result
of such transaction or transactions, the Preferred Stock becomes convertible
solely into such Common Stock (and any rights attached thereto).
However, a transaction of a type described above that results in the Common
Stock no longer being listed on a stock exchange or traded on the Nasdaq
National Market would also be treated as a change in control even if a Permitted
Owner were involved.
10.9 "Common Stock" means the Issuer's authorized $.01 par value Class A
Common Stock.
10.10 "Conversion Date" means the date the Issuer or the Transfer Agent
receives the Conversion Notice.
10.11 "Conversion Notice" means written notice from the Holder to the
Issuer stating that the Holder elects to convert all or a portion of the shares
of Preferred Stock represented by certificates delivered to the Issuer or the
Transfer Agent contemporaneously. The Conversion Notice will specify or include:
(i) The number of shares of Preferred Stock being converted by the
Holder,
(ii) The name or names (with address and taxpayer identification
number) in which a certificate or certificates for shares of Common Stock
are to be issued,
(iii) A written instrument or instruments of transfer in form
reasonably satisfactory to the Issuer or the Transfer Agent, duly executed
by the Holder or its duly authorized legal representative, or in blank, and
(iv) Transfer tax stamps or funds thereof, if required pursuant to
Section 4.6.
10.12 "Conversion Price" shall initially be $[ ].
10.13 "Conversion Price Adjustment Events" are any of those events
specified in Section 4.2.
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<PAGE>
10.14 "Current Market Price" means, as of any date, the average of the
daily Closing Price for the five consecutive Trading Days selected by the Board
of Directors beginning not more than 20 trading days before, and ending not
later than the date of the applicable event described in Section 4.2(c) or
4.2(d) hereof and the date immediately preceding the record date fixed in
connection with that event.
10.15 "Current Market Value" of Common Stock means the average of the high
and low sale prices of the Common Stock as reported on the Nasdaq National
Market or such other SEC-recognized national securities exchange or trading
system which the Issuer may from time to time designate upon which the greatest
number of shares of the Common Stock is then listed or traded, for the trading
day in question.
10.16 "Dividend Payment Date" is as defined in Section 2.1, above.
10.17 "Dividend Payment Record Date" is as defined in Section 2.1, above.
10.18 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
10.19 "Expiration Date" is as defined in Section 4.4(a)(i), above.
10.20 "Fundamental Change" means any transaction or event, including,
without limitation, any merger, consolidation, sale of assets, tender or
exchange offer, reclassification, compulsory share exchange or liquidation, in
which all or substantially all outstanding shares of the Issuer's Common Stock
are converted into or exchanged for stock, other securities, cash or assets.
10.21 "Holder" means a Person in whose name shares of Capital Stock is
registered.
10.22 "Issuance Date" is as defined in Section 2.1
10.23 "Issuer" means XM Satellite Radio Holdings Inc., a Delaware
corporation.
10.24 "Junior Security" is as defined in Section 3.1, above.
10.25 "Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place payment is to be received are
authorized by law, regulation or executive order to remain closed. If a payment
date is Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
10.26 "Liquidation Preference" means $50 per share of Preferred Stock.
10.27 "Mandatory Redemption Price" is as defined in Section 5.4(a), above
10.28 "Market Capitalization" means the product of the then-current market
price times the total number of shares of Common Stock then outstanding.
17
<PAGE>
10.29 "Market Value" means the average of the Closing Prices of the Common
Stock for the five trading days ending on the last trading day preceding the
date of occurrence of a Change of Control.
10.30 "Notice Date" means the tenth day prior to a Deposit Payment Date.
10.31 "Parity Security" is as defined in Section 3.1, above
10.32 "Permitted Owner" means American Mobile Satellite Corporation,
General Motors Corporation, DIRECTV and Clear Channel Communications, Inc. and
their respective affiliates.
10.33 "Person" means any individual, corporation, partnership, joint
venture, association, joint-stock issuer, interest, trust or unincorporated
organization (including any subdivision or ongoing business of any such entity
or substantially all of the assets of any such entity, subdivision or business).
10.34 "Preferred Stock" means the Preferred Stock authorized in this
Certificate of Designation.
10.35 "Redemption Agent" means that Person, if any, appointed by the Issuer
to hold funds deposited by the Issuer in trust to pay to the Holders of shares
to be redeemed.
10.36 "Redemption Date" means that certain date set forth in the Redemption
Notice on which date the redemption of the Preferred Stock is completed.
10.37 "Redemption Notice" means that notice to be given by the Issuer to
the Holders notifying the Holders as to the redemption, in whole or in part, of
the Preferred Stock pursuant to Article 5 hereof. The Redemption Notice shall
include the following information: (i) the Redemption Date and the time of day
on such date; (ii) the total number of shares of Preferred Stock to be redeemed
and, if fewer than all the shares held by such Holder are to be redeemed, the
number of such shares to be redeemed from such Holder; (iii) the Redemption
Price (whether to be paid in cash or shares of Common Stock); (iv) the place or
places where certificates for such shares are to be surrendered for payment of
the Redemption Price and delivery of certificates representing shares of Common
Stock (if the Issuer so chooses); (v) that dividends on the shares to be
redeemed will cease to accrue on such Redemption Date unless the Issuer defaults
in the payment of the Redemption Price; and (vi) the name of any bank or trust
company, if any, performing the duties of Redemption Agent. Redemption Notice
shall be given by first-class mail to each record Holder of the shares to be
redeemed, at such holder's address as the same appears on the books of the
Issuer.
10.38 "Redemption Notice Date" means the date the Redemption Notice is
first mailed or delivered to any Holder.
10.39 "Redemption Price" means that price established for redemption of the
Preferred Stock established in Section 5.1(b) hereof.
10.40 "Special Conversion Date" is as defined in Section 4.3, above.
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<PAGE>
10.41 "Special Conversion Price" is the higher of (a) the Market Value of
the Common Stock and (b) $ per share, which amount, in the case of this
clause (b), shall be adjusted each time that the conversion price is adjusted so
that the ratio of such amount (as so adjusted) to the conversion price (as so
adjusted) equals the ratio of $ to the initial conversion price.
10.42 "Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of such person or a combination
thereof.
10.43 The "Transfer Agent" shall be as established pursuant to Article 11
hereof.
10.44 "Trading Day" means any business day on which the Nasdaq National
Stock Market (or any U.S. national securities exchange or quotation system on
which the Common Stock is then listed) is open for the transaction of business.
10.45 "Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
11. Transfer Agent and Registrar
The duly appointed Transfer Agent and registrar for the Preferred
Stock shall be BankBoston, N.A. The Issuer may, in its sole discretion, remove
the Transfer Agent in accordance with the agreement between the Issuer and the
Transfer Agent; provided that the Issuer shall appoint a successor transfer
agent who shall accept such appointment prior to the effectiveness of such
removal.
12. Other Provisions
12.1 With respect to any notice to a Holder of shares of the Preferred
Stock required to be provided hereunder, neither failure to mail such notice,
nor any defect therein or in the mailing thereof, to any particular Holder shall
affect the sufficiency of the notice or the validity of the proceedings referred
to in such notice with respect to the other Holders or affect the legality or
validity of any distribution, rights, warrant, reclassification, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding up, or the
vote upon any such action. Any notice which was mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holder receives the notice.
12.2 Shares of Preferred Stock issued and reacquired will be retired and
canceled promptly after reacquisition thereof and, upon compliance with the
applicable requirements of Delaware law, have the status of authorized but
unissued shares of preferred stock of the Issuer undesignated as to series and
may with any and all other authorized but unissued shares of preferred stock of
the Issuer be designated or redesignated and issued or reissued, as the case may
be, as part of any series of preferred stock of the Issuer except that any
issuance or reissuance of shares of Preferred Stock must be in compliance with
this Certificate of Designation.
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<PAGE>
12.3 In the Issuer's discretion, no fractional shares of Common Stock or
securities representing fractional shares of Common Stock will be issued upon
conversion, redemption, or as dividends payable in the Preferred Stock. Any
fractional interest in a share of Common Stock resulting from conversion,
redemption, or dividend payment will be paid in cash based on the last reported
sale price of the Common Stock on the Nasdaq National Stock Market (or any
national securities exchange or authorized quotation system on which the Common
Stock is then listed) at the close of business on the trading day next preceding
the date of conversion or such later time as the Issuer is legally and
contractually able to pay for such fractional shares.
12.4 The shares of Preferred Stock shall be issuable in whole shares.
12.5 All notices periods referred to herein shall commence on the date of
the mailing of the applicable notice.
20
<PAGE>
IN WITNESS WHEREOF, XM Satellite Radio Holdings Inc. caused this
Certificate to be signed this [ ] day of [ ], 2000.
XM SATELLITE RADIO HOLDINGS INC.
By:
Name: Heinz Stubblefield
Title: Chief Financial Officer
21
<PAGE>
EXHIBIT 4
<TABLE>
<S> <C> <C>
[LOGO OF XM SATELLITE RADIO APPEARS HERE]
NUMBER SHARES
SB
XM SATELLITE RADIO HOLDINGS INC.
% Series B Convertible INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE SEE REVERSE FOR
Redeemable Preferred Stock THIS CERTIFICATE IS TRANSFERABLE IN BOSTON, MA AND NEW YORK, NY CERTAIN DEFINITIONS
CUSIP 983759 20 0
(LIQUIDATION PREFERENCE $50.00 PER SHARE)
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.01 EACH OF THE _% SERIES B CONVERTIBLE REDEEMABLE PREFERRED STOCK OF
- -------========================================== XM SATELLITE RADIO HOLDINGS INC. =========================================--------
CERTIFICATE OF STOCK
designated the % Series B Convertible Redeemable Preferred Stock (par value $0.01 per share) (liquidation preference $50.00 per
share) (the "Series B Preferred Stock"). The shares of Series B Preferred Stock are transferable on the books and records of the
Registrar, in person or by duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for
transfer. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Series B Preferred
Stock represented hereby are issued and shall in all respects be subject to the provisions of the Certificate of Designation of
Voting Power, Designation Preferences and Relative, Participating, Optional or Other Special Rights and Qualifications, Limitations
and Restrictions dated January , 2000 as the same may be amended from time to time (the "Certificate of Designations").
Capitalized terms used herein but not defined shall have the meanings given them in the Certificate of Designations. The Corporation
will provide a copy of the Certificate of Designations to a Holder without charge upon written request to the Corporation at the
principal place of business.
Reference is hereby made to select provisions of the Series B Preferred Stock set forth on the reverse side hereof, and to
the Certificate of Designations, when select provisions and the Certificate of Designations shall for all purposes have the same
effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the Certificate of Designations and is entitled to the benefits
thereunder.
This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
SPECIMEN
Dated:
[XM SATELLITE RADIO HOLDINGS INC. CORPORATE SEAL APPEARS HERE]
/s/ Joseph M. Titlebaum /s/ Hugh Panero
----------------------- ----------------------
SECRETARY PRESIDENT & CEO
COUNTERSIGNED AND REGISTERED:
BankBoston, N.A.
BY /s/ TRANSFER AGENT
----------------------- AND REGISTRAR
AUTHORIZED SIGNATURE
</TABLE>
<PAGE>
XM SATELLITE RADIO HOLDINGS INC.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT- CUSTODIAN
------------ -----------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
UNIF TRANS MIN ACT- Custodian
------------ -----------
(Cust) (Minor)
under Uniform Transfers to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, hereby sell, assign
-----------------------------------------
and transfer unto.
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- --------------------------------------------------------------------------------
Shares
- --------------------------------------------------------------------------
of the Series B Preferred Stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint
-------------------------------------
Attorney to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated:
-----------------------------------------------------
- -----------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
--------------------------------------------------------
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
DIVIDENDS ON EACH SHARE OF SERIES B PREFERRED STOCK SHALL BE PAYABLE AT A RATE
PER ANNUM SET FORTH IN THE FACE HEREOF OR AS PROVIDED IN THE CERTIFICATE OF
DESIGNATIONS. DIVIDENDS MAY BE PAID IN CASH, IN SHARES OF CLASS A COMMON STOCK
OF XM SATELLITE RADIO HOLDINGS INC. (THE "CORPORATION") OR A COMBINATION THEREOF
AT THE OPTION OF THE CORPORATION.
THE SHARES OF SERIES B PREFERRED STOCK SHALL BE REDEEMABLE AS PROVIDED IN THE
CERTIFICATE OF DESIGNATIONS AND THE RESTATED CERTIFICATE OF INCORPORATION OF THE
CORPORATION. THE SHARES OF SERIES B PREFERRED STOCK SHALL BE CONVERTIBLE INTO
CASH OR THE CORPORATION'S CLASS A COMMON STOCK IN THE MANNER AND ACCORDING TO
THE TERMS SET FORTH IN THE CERTIFICATE OF DESIGNATIONS.
THE OWNERSHIP OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE IS RESTRICTED BY
AND SUBJECT TO THE PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION OF
THE CORPORATION, WHICH (i) PROHIBITS THE RECORD OR BENEFICIAL OWNERSHIP OF ANY
SECURITIES BY AND PERSON WHOSE OWNERSHIP THEREOF WOULD CONSTITUTE A VIOLATION OF
SECTION 310(a) OR 310(b) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED, OR ANY
SIMILAR SUCCESSOR FEDERAL STATUTES, AND (ii) PROVIDES THAT THE CORPORATION SHALL
HAVE THE RIGHT TO REDEEM ANY SECURITIES OWNED IN VIOLATION OF THE FOREGOING. A
COPY OF THE RESTATED CERTIFICATE OF INCORPORATION IS AVAILABLE FOR INSPECTION AT
THE OFFICES OF THE CORPORATION.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OR SERIES OF STOCK.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS
A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL, OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR
SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. SUCH REQUEST MAY BE MADE TO THE CORPORATION OR TO ITS
TRANSFER AGENT AND REGISTRAR.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
