AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 2003
REGISTRATION NO. 333-104406
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SIRIUS SATELLITE RADIO INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 52-1700207
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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1221 AVENUE OF THE AMERICAS, 36TH FLOOR
NEW YORK, NEW YORK 10020
212-584-5100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------
PATRICK L. DONNELLY
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
SIRIUS SATELLITE RADIO INC.
1221 AVENUE OF THE AMERICAS, 36TH FLOOR
NEW YORK, NEW YORK 10020
212-584-5100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
GARY L. SELLERS
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
212-455-2000
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APPROXIMATE DATE OF PROPOSED SALE TO PUBLIC: From time to time, after this
Registration Statement becomes effective.
If the securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form is to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
(continued on next page)
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CALCULATION OF REGISTRATION FEE
============================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
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Common Stock, par value $.001 per
share(1)........................... 429,881,643 shares(2)(3) $0.66(4) $283,721,884 $22,953
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(1) Includes associated preferred stock purchase rights, which
initially are attached to and trade with the shares of
common stock being registered hereby. Value attributable to
such preferred stock purchase right, if any, is reflected in
the market price of the common stock.
(2) These securities will be offered from time to time by
selling securityholders as reflected in 'Selling
Securityholders.'
(3) Equals the number of shares of our common stock (i) issued
to certain investors in a private offering and to certain
investors as part of the exchange by such investors of our
convertible preferred stock, each on March 7, 2003 in
connection with the restructuring of our debt and
capitalization, (ii) issued to certain investors as part of
the exchange by such investors of our debt securities in
connection with the restructuring of our debt and
capitalization, (iii) purchased in open market transactions,
and (iv) that may be issued upon exercise of the Series A
Warrants and the Series B Warrants granted to certain
investors as part of the exchange by such investors of our
convertible preferred stock on March 7, 2003.
(4) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) under the
Securities Act, based upon the average of the high and low
prices for our common stock on the Nasdaq National Market on
April 4, 2003.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT
PERMITTED OR WOULD REQUIRE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
LAWS OF THE JURISDICTION.
PROSPECTUS (SUBJECT TO COMPLETION, DATED MAY 19, 2003)
[SIRIUS LOGO] SIRIUS SATELLITE RADIO INC.
429,881,643 SHARES OF COMMON STOCK
This prospectus relates to 429,881,643 shares of our common stock, par value
$0.001, which is comprised of:
163,609,837 shares of our common stock issued in a private
offering in connection with our recent restructuring to
Atlas Global Growth Fund, Clarington Global Equity Fund,
Security Benefit Life Global Series Fund, Security Benefit
Life Worldwide Equity Series D/VA, CUNA Global Series
Fund/VA, JNL/Oppenheimer Global Growth Series VA,
Oppenheimer Global Fund, Oppenheimer Global Securities
Fund/VA and Oppenheimer Global Growth & Income Fund
(collectively, 'Oppenheimer');
117,569,352 shares of common stock, including 24,060,271
shares of our common stock issued in a private offering,
39,927,796 shares of our common stock issued as part of the
exchange of our convertible preferred stock, and 52,581,285
shares of our common stock issued in a registered exchange
offer for our debt securities, to Apollo Investment Fund IV, L.P.
and Apollo Overseas Partners IV, L.P. (collectively, 'Apollo')
in connection with our recent restructuring, and 1,000,000 shares
of our common stock acquired in open market transactions by Apollo;
61,125,340 shares of common stock, including 24,060,271
shares of our common stock issued in a private offering and
37,065,069 shares of our common stock issued as part of the
exchange of our convertible preferred stock, both in connection
with our recent restructuring, to Blackstone CCC Capital Partners
L.P., Blackstone Family Investment Partnership III L.P., LJH Partners,
L.P., Robert C. Fanch Revocable Trust and BCI Investments II, L.L.C.
(collectively, 'Blackstone'); and
87,577,114 shares of our common stock issuable upon the
exercise of our Series A Warrants and Series B Warrants.
All of the common stock offered hereby may be sold from time to time by and
for the account of the selling securityholders named in this prospectus or in
any supplement to this prospectus.
The methods of sale of common stock offered hereby are described under the
heading 'Plan of Distribution.' We will receive none of the proceeds from such
sales.
The selling securityholders and any broker-dealers that participate in the
distribution of the common stock offered hereby may be deemed to be
'underwriters' within the meaning of the Securities Act of 1933. As a result,
any commission or profit on the resale of shares received by such broker-dealers
may be deemed to be underwriting commissions and discounts under the Securities
Act. Upon being notified by the selling securityholders that any material
arrangement has been entered into with a broker or dealer for the sales through
a secondary distribution, or a purchase by a broker or dealer, a supplemented
prospectus will be filed, if required, disclosing among other things the names
of such brokers and dealers, the number of shares involved, the price at which
such shares are being sold and the commissions paid or the discounts or
concessions allowed to such broker-dealers.
Our common stock is listed on the Nasdaq National Market under the symbol
'SIRI.' The closing bid price of our common stock on May 16 2003 was $1.37 per
share.
INVESTING IN OUR SECURITIES INVOLVES RISK, INCLUDING THE RISKS DESCRIBED IN THE
DOCUMENTS INCORPORATED BY REFERENCE IN THIS PROSPECTUS. YOU SHOULD CAREFULLY
CONSIDER THE IMPORTANT RISK FACTORS SET FORTH IN THE DOCUMENTS INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT, IF
ANY, BEFORE INVESTING IN OUR SECURITIES.
Neither the Securities and Exchange Commission nor any state securities
commission has approved nor disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We have not authorized any dealer, salesperson or other person to give any
information or represent anything not contained in this prospectus. You must not
rely on any unauthorized information. This prospectus does not offer to sell nor
does it solicit to buy any securities in any jurisdiction where it is unlawful.
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[ ], 2003
TABLE OF CONTENTS
PAGE
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Special Note Regarding Forward-Looking Statements........... 2
About Sirius................................................ 3
Risk Factors................................................ 3
Use of Proceeds............................................. 3
Description of Capital Stock and Warrants................... 4
Selling Securityholders..................................... 10
Plan of Distribution........................................ 12
Legal Matters............................................... 12
Experts..................................................... 12
Incorporation by Reference.................................. 13
Where You May Find Additional Information About Us.......... 14
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS PROSPECTUS MAY ONLY BE USED WHERE IT IS
LEGAL TO SELL THESE SECURITIES. THE INFORMATION IN THIS PROSPECTUS MAY ONLY BE
ACCURATE ON THE DATE OF THIS PROSPECTUS.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The following cautionary statements identify important factors that could
cause our actual results to differ materially from those projected in the
forward-looking statements made in this prospectus. Any statements about our
beliefs, plans, objectives, expectations, assumptions or future events or
performance are not historical facts and may be forward-looking. These
statements are often, but not always, made through the use of words or phrases
such as 'will likely result,' 'are expected to,' 'will continue,' 'is
anticipated,' 'estimated,' 'intends,' 'plans,' 'projection,' and 'outlook.' Any
forward-looking statements are qualified in their entirety by reference to the
factors discussed throughout this prospectus. Among the significant factors that
could cause our actual results to differ materially from those expressed in the
forward-looking statements are:
o our need for substantial additional financing by early 2004,
even following our recently completed recapitalization;
o our competitive position, as XM Satellite Radio, the other
satellite radio service provider in the United States, began
offering its service before us, has substantially more
subscribers than us and may have certain competitive
advantages;
o our dependence upon third parties to manufacture,
distribute, market and sell SIRIUS radios and components for
those radios;
o the unproven market for our service; and
o the useful life of our satellites, which have experienced
circuit failures on their solar arrays and may not be
covered by insurance. The circuit failures our satellites
have experienced to date are not expected to limit the power
of our broadcast signal, reduce the expected useful life of
our satellites or otherwise affect our operations.
These and other factors are discussed in the risk factors set forth in the
documents incorporated by reference in this prospectus.
Because the risk factors referred to above could cause actual results or
outcomes to differ materially from those expressed in any forward-looking
statements made by us or on our behalf, you should not place undue reliance on
any of these forward-looking statements. In addition, any forward-looking
statement speaks only as of the date on which it is made, and we undertake no
obligation to update any forward-looking statement or statements to reflect
events or circumstances after the date on which the statement is made or to
reflect the occurrence of unanticipated events or otherwise. New factors emerge
from time to time, and it is not possible for us to predict which
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will arise or to assess with any precision the impact of each factor on our
business or the extent to which any factor, or combination of factors, may cause
actual results to differ materially from those contained in any forward-looking
statements.
ABOUT SIRIUS
From our three orbiting satellites, we directly broadcast more than 100
channels, which we call 'streams', of digital-quality audio throughout the
continental United States for a monthly subscription fee of $12.95. We deliver
60 streams of 100% commercial-free music in virtually every genre, and over 40
streams of news, sports, weather, talk, comedy, public radio and children's
programming. Our broad and deep range of music as well as our news, sports and
entertainment programming is not available on conventional radio in any market
in the United States. We hold one of only two licenses issued by the Federal
Communications Commission (the 'FCC') to operate a national satellite radio
system.
On February 14, 2002, we launched our service in select markets and on July
1, 2002, we launched our service nationwide. Our primary source of revenues is
subscription and activation fees. In addition, we derive revenues from selling
limited advertising on our non-music streams.
We have agreements with Ford Motor Company, DaimlerChrysler Corporation, BMW
of North America, LLC, Nissan North America, Inc. and Volkswagen of America,
Inc. that contemplate the manufacture and sale of vehicles that include SIRIUS
radios. These alliances cover all major brands and affiliates of these
automakers, including Ford, Lincoln, Mercury, Jaguar, Land Rover, Chrysler,
Mercedes, BMW, MINI, Jaguar, Mazda, Dodge, Jeep, Volvo, Nissan, Infiniti,
Volkswagen, Audi and Freightliner and Sterling heavy trucks. Ford,
DaimlerChrysler, BMW, Nissan and Volkswagen are not required to manufacture or
sell vehicles that include SIRIUS radios pursuant to these agreements.
In the autosound aftermarket, SIRIUS radios are available for sale at
various national and regional retailers, such as Best Buy, Circuit City,
Ultimate Electronics, Tweeter Home Entertainment Group, Crutchfield and Good
Guys. On December 31, 2002, SIRIUS radios were available at approximately 5,500
retail locations.
From time to time, we will seek to raise additional capital through the
issuance of securities in public and private markets.
RISK FACTORS
Investing in our securities involves risk, including the risks described in
the documents incorporated by reference in this prospectus and in the
accompanying prospectus supplement, if any. You should carefully consider the
risk factors before investing in our securities. These risk factors are set
forth in our Annual Report on Form 10-K for the year ended December 31, 2002,
our Quarterly Report on Form 10-Q for the quarter ended March 31, 2003, our
Current Reports on Form 8-K dated March 31, 2003 and May 14, 2003, and in
filings made by us with the Securities and Exchange Commission after the date of
this prospectus pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares offered
by the selling securityholders under this prospectus.
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DESCRIPTION OF CAPITAL STOCK AND WARRANTS
Our certificate of incorporation provides for authorized capital of
2,550,000,000 shares, consisting of 2,500,000,000 shares of common stock, par
value $0.001 per share, and 50,000,000 shares of preferred stock, par value
$0.001 per share.
COMMON STOCK
As of March 26, 2003, we had 911,666,616 shares of common stock outstanding
beneficially held by approximately 75,000 persons, and had reserved for issuance
252,821,439 shares of common stock with respect to incentive stock plans and
outstanding common stock purchase warrants.
Holders of our common stock are entitled to cast one vote for each share
held of record on all matters acted upon at any stockholder's meeting and to
receive dividends if, as and when declared by our board of directors out of
funds legally available therefor. There are no cumulative voting rights. If
there is any liquidation, dissolution or winding-up of our company, each holder
of our common stock will be entitled to participate, taking into account the
rights of any outstanding preferred stock, ratably in all of our assets
remaining after payment of liabilities. Holders of our common stock have no
preemptive or conversion rights. All outstanding shares of our common stock,
including shares of common stock issued upon the exercise of the common stock
warrants, will be fully paid and non-assessable.
Our common stock is quoted on the Nasdaq National Market under the symbol
'SIRI.'
If the minimum bid price of our common stock closes below $1.00 per share
for 30 or more consecutive trading days and we are unable to cure such defect
within a 90 day cure period, Nasdaq may delist our common stock from the Nasdaq
National Market. On March 20, 2003, Nasdaq informed us that the minimum bid
price of our common stock had closed below $1.00 for more than 30 consecutive
trading days and that we had until September 16, 2003 to cure the defect. If our
common stock fails to close above $1.00 for ten consecutive days prior to
September 16, 2003, we have the right to request a hearing prior to delisting by
Nasdaq. Such delisting will have an adverse impact on the liquidity of our
common stock and, as a result, the market price of our common stock may become
more volatile.
PREFERRED STOCK
Our board of directors is authorized, subject to any limitations prescribed
by law, without further stockholder approval, to issue from time to time up to
an aggregate of 50,000,000 shares of our preferred stock, in one or more series.
Each such series of preferred stock will have such number of shares,
designations, preferences, powers, qualifications and special or relative rights
or privileges as will be determined by our board of directors, which may
include, among others, dividend rights, voting rights, redemption and sinking
fund provisions, liquidation preferences, conversion rights and preemptive
rights. The rights of the holders of our common stock will be subject to the
rights of holders of any preferred stock issued in the future. The issuance of
preferred stock, while providing desirable flexibility in connection with
possible acquisitions and other corporate purposes, could have the effect of
making it more difficult for a third party to acquire, or of discouraging a
third party from acquiring, a majority of our outstanding voting stock.
In connection with our recent restructuring, all of our outstanding
preferred stock was retired and cancelled.
PREFERRED STOCK PURCHASE RIGHTS
On October 22, 1997, our board of directors adopted a stockholders rights
plan and, in connection with the adoption of this plan, declared a dividend
distribution of one 'Right' for each outstanding share of common stock to
stockholders of record at the close of business on November 3, 1997 (the 'Rights
Record Date'). Except as described below, each Right entitles the registered
holder of the Right to purchase from us one-hundredth of a share of Series B
Preferred
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Stock, par value $0.001 per share (the 'Series B Shares'), at a purchase price
of $115.00 (the 'Purchase Price'), which may be adjusted. The Purchase Price
shall be paid in cash. The description and terms of the Rights are set forth in
a Rights Agreement, dated October 22, 1997, by and between us and The Bank of
New York (the successor to Continental Stock Transfer & Trust Company), as
rights agent, and in amendments to the Rights Agreement dated October 13, 1998,
November 13, 1998, December 22, 1998, June 11, 1999, September 29, 1999,
December 23, 1999, January 28, 2000, August 7, 2000, January 8, 2002, October
22, 2002, March 6, 2003 and March 31, 2003.
On March 6, 2003, we amended the Rights Agreement to (1) render the Rights
Agreement inapplicable to the issuance of common stock to Lehman Commercial
Paper Inc. in the restructuring transactions and to permit Lehman to acquire up
to an additional 1% of the outstanding shares of common stock, without Lehman
becoming an 'Acquiring Person' within the meaning of the Rights Agreement and
(2) permit each of OppenheimerFunds, Inc., Apollo Management, L.P., The
Blackstone Group L.P. and their respective affiliates and affiliated investment
funds to acquire up to 25% of the outstanding shares of common stock, without
becoming 'Acquiring Persons' within the meaning of the Rights Agreement.
Initially, no separate Right certificates were distributed and the Rights
were evidenced, with respect to any shares of common stock outstanding on the
Rights Record Date, by the certificates representing the shares of common stock.
Until the Rights Separation Date (as defined below), the Rights will be
transferred with, and only with, certificates for shares of common stock. Until
the earlier of the Rights Separation Date and the redemption or expiration of
the Rights, new certificates for shares of common stock issued after the Rights
Record Date will contain a notation incorporating the Rights Agreement by
reference. The Rights are not exercisable until the earlier to occur of (1) 10
business days following a public announcement that a person or group of
affiliated or associated persons (an 'Acquiring Person') has acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of common stock (except by reason of (a) exercise by this
person of stock options granted to this person by us under any of our stock
option or similar plans (b) the exercise of conversion rights contained in
specified classes of Preferred Stock, or (c) the exercise of warrants owned on
the date of the Rights Agreement (which include warrants to acquire 1,740,000
shares of common stock issued to an affiliate of Everest Capital Fund, Ltd.) or
(2) 15 business days following the commencement of a tender offer or exchange
offer by any person (other than Sirius, any subsidiary of Sirius or any employee
benefit plan of Sirius) if, upon the completion of this tender offer or exchange
offer, this person or group would be the beneficial owner of 15% or more of the
outstanding shares of common stock (the earlier of these dates being called the
'Rights Separation Date'), and will expire on August 1, 2003, unless earlier
redeemed by us as described below. As soon as practicable following the Rights
Separation Date, separate certificates evidencing the Rights will be mailed to
holders of record of the shares of common stock as of the close of business on
the Rights Separation Date and, thereafter, the separate Rights certificates
alone will evidence the Rights. A holder of 15% or more of the common stock as
of the date of the Rights Agreement will be excluded from the definition of
'Acquiring Person' unless the holder increases the aggregate percentage of its
and its affiliates' beneficial ownership interest in us by an additional 1%.
If, at any time following the Rights Separation Date, (1) we are the
surviving corporation in a merger with an Acquiring Person and our shares of
common stock are not changed or exchanged, (2) a person (other than Sirius, any
subsidiary of Sirius or any employee benefit plan of Sirius), together with its
Affiliates and Associates (as defined in the Rights Agreement), becomes an
Acquiring Person (in any manner, except by (a) the exercise of stock options
granted under our existing and future stock option plans, (b) the exercise of
conversion rights contained in specified preferred stock issues, (c) the
exercise of warrants specified in the Rights Agreement or (d) a tender offer for
any and all outstanding shares of common stock made as provided by applicable
laws, which remains open for at least 40 Business Days (as defined in the Rights
Agreement) and into which holders of 80% or more of our outstanding shares of
common stock tender their shares), (3) an Acquiring Person engages in one or
more 'self-dealing' transactions as described in
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the Rights Agreement or (4) during the time when there is an Acquiring Person,
an event occurs (e.g., a reverse stock split), that results in the Acquiring
Person's ownership interest being increased by more than one percent, the Rights
Agreement provides that proper provision shall be made so that each holder of a
Right will thereafter be entitled to receive, upon the exercise of the Right at
the then current exercise price of the Right, shares of common stock (or, in
some circumstances, cash, property or other securities of ours) having a value
equal to two times the exercise price of the Right.
If, at any time following the first date of public announcement by us or an
Acquiring Person indicating that this Acquiring Person has become an Acquiring
Person (the 'Shares Acquisition Date'), (1) we consolidate or merge with another
person and we are not the surviving corporation, (2) we consolidate or merge
with another person and are the surviving corporation, but in the transaction
our shares of common stock are changed or exchanged or (3) 50% or more of our
assets or earning power is sold or transferred, the Rights Agreement provides
that proper provision shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the exercise of the Right at the then
current exercise price of the Right, shares of common stock of the acquiring
company having a value equal to two times the exercise price of the Right.
Our board of directors may, at its option, at any time after the right of
the board to redeem the Rights has expired or terminated (with some exceptions),
exchange all or part of the then outstanding and exercisable Rights (other than
those held by the Acquiring Person and Affiliates and Associates of the
Acquiring Person) for shares of common stock at a ratio of one share of common
stock per Right, as adjusted; provided, however, that the Right cannot be
exercised once a person, together with the person's Affiliates and Associates,
becomes the beneficial owner of 50% or more of the shares of common stock then
outstanding. If our board of directors authorizes this exchange, the Rights will
immediately cease to be exercisable.
Notwithstanding any of the foregoing, following the occurrence of any of the
events described in the fourth and fifth paragraphs of this section, any Rights
that are, or (under some circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person or Affiliate or Associate of an
Acquiring Person shall immediately become null and void. The Rights Agreement
contains provisions intended to prevent the utilization of voting trusts or
similar arrangements that could have the effect of rendering ineffective or
circumventing the beneficial ownership rules described in the Rights Agreement.
The Purchase Price payable, and the number of Series B Shares or other
securities or property issuable, upon exercise of the Rights may be adjusted
from time to time to prevent dilution (1) in the event of a dividend of Series B
Shares on, or a subdivision, combination or reclassification of, the Series B
Shares, (2) upon the grant to holders of the Series B Shares of specific rights
or warrants to subscribe for Series B Shares or securities convertible into
Series B Shares at less than the current market price of the Series B Shares or
(3) upon the distribution to holders of the Series B Shares of debt securities
or assets (excluding regular quarterly cash dividends and dividends payable in
Series B Shares) or of subscription rights or warrants (other than those
referred to above).
At any time after the date of the Rights Agreement until ten business days
(a period that can be extended) following the Shares Acquisition Date, the board
of directors, with the concurrence of a majority of the independent directors
(those members of our board who are not officers or employees of ours or of any
subsidiary of ours and who are not Acquiring Persons or their Affiliates,
Associates, nominees or representatives, and who either (1) were members of the
board before the adoption of the Rights Plan or (2) were subsequently elected to
our board and were recommended for election or approved by a majority of the
independent directors then on our board), may redeem the Rights, in whole but
not in part, at a price of $0.01 per Right, which may be adjusted. Thereafter,
our board of directors may redeem the Rights only in specified circumstances
including in connection with specific events not involving an Acquiring Person
or an Affiliate or Associate of an Acquiring Person. In addition, our right of
redemption may be reinstated if (1) an Acquiring Person reduces its beneficial
ownership to 10% or less of the outstanding shares of common stock in a
transaction or series of transactions not involving us and
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(2) there is at the time no other Acquiring Person. The Rights Agreement may
also be amended, as described below, to extend the period of redemption.
Until a Right is exercised, the holder of the Right, as such, will have no
rights as a stockholder, including the right to vote or to receive dividends.
While the distribution of the Rights will not be taxable to stockholders or to
us, stockholders may, depending upon the circumstances, recognize taxable income
if the Rights become exercisable for shares of our common stock (or other
consideration) or for shares of common stock of the Acquiring Person.
Other than those provisions relating to the principal economic terms of the
Rights or imposing limitations on the right to amend the Rights Agreement, any
of the provisions of the Rights Agreement may be amended by our board of
directors with the concurrence of a majority of the independent directors or by
special approval of our stockholders before the Rights Separation Date.
Thereafter, the period during which the Rights may be redeemed may be extended
(by action of our board of directors, with the concurrence of a majority of the
independent directors or by special approval of our stockholders), and other
provisions of the Rights Agreement may be amended by action of our board of
directors with the concurrence of a majority of the independent directors or by
special approval of our stockholders; provided, however, that (a) this amendment
will not adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person) and (b) no amendment shall be made at a time
when the Rights are no longer redeemable (except for the possibility of the
right of redemption being reinstated as described above).
DELAWARE ANTI-TAKEOVER LAW AND PROVISIONS IN OUR CHARTER
Section 203 of the Delaware General Corporation Law ('Section 203')
generally provides that a stockholder acquiring more than 15% of the outstanding
voting stock of a corporation subject to the statute (an 'Interested
Stockholder') but less than 85% of this stock may not engage in some types of
Business Combinations (as defined in Section 203) with the corporation for a
period of three years after the time the stockholder became an Interested
Stockholder. The prohibition of Section 203 does not apply under the following
circumstances:
before the time of the acquisition, the corporation's board
of directors approved either the Business Combination or the
transaction in which the stockholder became an Interested
Stockholder; or
the Business Combination is approved by the corporation's
board of directors and authorized at a stockholders' meeting
by a vote of at least two-thirds of the corporation's
outstanding voting stock not owned by the Interested
Stockholder.
In connection with the recapitalization, our board of directors approved the
transactions and determined that Apollo, Blackstone, Lehman, Space
Systems/Loral, Inc. and noteholders tendering their debt in the exchange offer
should not constitute Interested Stockholders of the company within the meaning
of Section 203 as a result of the recapitalization.
Under Section 203, these restrictions will not apply to specific Business
Combinations proposed by an Interested Stockholder following the earlier of the
announcement or notification of specific extraordinary transactions involving
the corporation and a person who was not an Interested Stockholder during the
previous three years, who became an Interested Stockholder with the approval of
the corporation's board of directors or who became an Interested Stockholder at
a time when the restrictions contained in Section 203 did not apply for reasons
specified in Section 203. The above exception applies if the extraordinary
transaction is approved or not opposed by a majority of the directors who were
directors prior to the person becoming an Interested Stockholder during the
previous three years or were recommended for election or elected to succeed
those directors by a majority of those directors.
Section 203 defines the term 'Business Combination' to encompass a wide
variety of transactions with or caused by an Interested Stockholder. These
include transactions in which the Interested Stockholder receives or could
receive a benefit on other than a pro rata basis with other stockholders,
transactions with the corporation which increase the proportionate interest in
7
the corporation directly or indirectly owned by the Interested Stockholder or
transactions in which the Interested Stockholder receives other benefits.
The provisions of Section 203, coupled with our board of directors'
authority to issue preferred stock without further stockholder action, could
delay or frustrate the removal of incumbent directors or a change in our
control. The provisions could also discourage, impede or prevent a merger,
tender offer or proxy contest, even if the event would be favorable to the
interests of stockholders. Our stockholders, by adopting an amendment to our
amended and restated certificate of incorporation, may elect not to be governed
by Section 203 effective 12 months after the adoption. Neither our certificate
of incorporation nor our by-laws exclude us from the restrictions imposed by
Section 203.
THE UNIT OFFERING WARRANTS
On May 18, 1999, we issued units composed of our senior secured notes and
warrants to purchase an aggregate of 2,190,000 shares of common stock at a price
of $28.60 per share. These warrants were issued under a warrant agreement, dated
as of May 15, 1999, between us, as issuer, and United States Trust Company of
New York, as warrant agent. The number of shares of common stock to be issued
under these warrants will be adjusted in some cases if we issue additional
shares of common stock, options, warrants or convertible securities and in some
other events. These warrants expire on May 15, 2009. In the event that we issue
common stock in the restructuring at a price below the current market value per
share as of the issue date, the number of shares of common stock issuable upon
the exercise of these warrants and the exercise price will be adjusted. As of
March 26, 2003, there were warrants outstanding to purchase 2,425,389 shares of
common stock at a price of $24.92.
A shelf registration statement covering the issuance of the shares of common
stock issuable upon the exercise of the unit offering warrants has been filed
and declared effective. We have agreed to cause this shelf registration
statement to remain effective until the earlier of (1) the time when all unit
offering warrants have been exercised and (2) May 15, 2009.
THE FORD WARRANT
On October 7, 2002, we canceled an existing warrant previously issued to
Ford and issued a new warrant to Ford which entitles Ford to purchase up to
4,000,000 shares of our common stock at a purchase price of $3.00 per share.
Ford's right to exercise this warrant vests:
with respect to 200,000 shares of our common stock, on the
date the first Ford vehicle with a Sirius radio installed by
Ford or one of its dealers (each, a 'Ford Enabled Vehicle')
is activated by us for a bona fide customer;
with respect to 200,000 shares of our common stock, on the
date the first Ford Enabled Vehicle that has a
factory-installed Sirius radio is activated by us for a bona
fide customer;
with respect to 200,000 shares of our common stock, on the
date that Ford and us jointly launch a national advertising
campaign promoting our satellite radio service in Ford
vehicles;
with respect to 100,000 shares of our common stock, on each
date that a Sirius radio is first available to be ordered by
a bona fide customer as an original equipment option on a
Ford vehicle line; provided that in no event will more than
1,400,000 shares of our common stock vest and become
exercisable pursuant to this provision;
with respect to one share of our common stock, upon the
manufacture by Ford of each of the first 375,000 Ford
Enabled Vehicles;
with respect to 625,000 shares of our common stock, on the
date that Ford has manufactured an aggregate of 375,000 Ford
Enabled Vehicles;
with respect to 500,000 shares of our common stock, on the
date that Ford has manufactured an aggregate of 750,000 Ford
Enabled Vehicles; and
8
with respect to 500,000 shares of our common stock, on the
date that Ford has manufactured an aggregate of 1,500,000
Ford Enabled Vehicles.
If Ford terminates the exclusivity provisions contained in our agreement, we
may reduce by one-half the number of shares granted and the number of shares of
our common stock that vest and become exercisable under this warrant.
The number of shares of common stock to be issued under this warrant will be
adjusted in some cases if we issue stock dividends, combine stock, reorganize or
reclassify capital stock, merge, sell all of our assets and in some other
events. This warrant will expire on the earlier of October 6, 2012 and the date
of termination or expiration of the agreement, dated October 7, 2002, between us
and Ford.
We are required to give Ford notice of adjustments in the number of shares
issuable under this warrant and of extraordinary corporate events.
THE DAIMLERCHRYSLER WARRANT
On October 25, 2002, we canceled an existing warrant previously issued to
DaimlerChrysler and issued a new warrant to DaimlerChrysler which entitles
DaimlerChrysler to purchase up to 4,000,000 shares of our common stock at a
purchase price of $3.00 per share.
DaimlerChrysler's right to exercise this warrant vests:
with respect to 1,000,000 shares of common stock, on the
date that DaimlerChrysler and its affiliates have
manufactured 250,000 new vehicles containing Sirius radios
('DaimlerChrysler Enabled Vehicles');
with respect to an additional 500,000 shares of common
stock, on the date that DaimlerChrysler and its affiliates
have manufactured an aggregate of 800,000 DaimlerChrysler
Enabled Vehicles;
with respect to an additional 500,000 shares of common
stock, on the date that DaimlerChrysler and its affiliates
have manufactured an aggregate of 1,600,000 DaimlerChrysler
Enabled Vehicles;
with respect to an additional 1,000,000 shares of common
stock, on the date that DaimlerChrysler and its affiliates
have manufactured an aggregate of 2,400,000 DaimlerChrysler
Enabled Vehicles; and
with respect to an additional 1,000,000 shares of common
stock, on the date that DaimlerChrysler and its affiliates
have manufactured an aggregate of 3,200,000 DaimlerChrysler
Enabled Vehicles.
The number of shares of common stock to be issued under this warrant will be
adjusted in some cases if we issue stock dividends, combine stock, reorganize or
reclassify capital stock, merge, sell all of our assets and in some other
events. This warrant will expire on the date of termination or expiration of the
agreement, dated October 25, 2002, among us, DaimlerChrysler Corporation,
Freightliner Corporation and Mercedes-Benz USA, Inc.
We are required to give DaimlerChrysler notice of adjustments in the number
of shares issuable under this warrant and of extraordinary corporate events.
THE LEHMAN WARRANTS
In connection with the Lehman senior term loans, we issued to Lehman
warrants to purchase up to 2,100,000 shares of our common stock at a purchase
price of $15.00 per share. All of these warrants have vested.
525,000 of these warrants expire on December 27, 2010, 1,050,000 of these
warrants expire on March 7, 2011 and 525,000 warrants expire on April 4, 2011.
The number of shares of common stock to be issued under these warrants and the
exercise price of the warrants will be adjusted in some cases if we issue stock
dividends, subdivide or combine stock, reorganize or reclassify capital stock,
distribute cash dividends, issue common stock or other securities convertible
into common stock (other than in a bona fide underwritten public offering) and
in certain other events. We are
9
also required to give Lehman notice of adjustments in the number of shares
issuable under these warrants and of extraordinary corporate events.
THE SERIES A WARRANTS AND SERIES B WARRANTS
In connection with our recent recapitalization, we issued (i) to affiliates
of Blackstone (a) Series A warrants to purchase up to 25,296,255 shares of our
common stock at a purchase price of $1.04 per share and (b) Series B warrants to
purchase up to 16,864,169 shares of our common stock at a purchase price of
$0.92 per share and (ii) to affiliates of Apollo (a) Series A warrants to
purchase up to 27,250,013 shares of our common stock at a purchase price of
$1.04 per share and (b) Series B warrants to purchase up to 18,166,677 shares of
our common stock at a purchase price of $0.92 per share.
All of these warrants are currently exercisable and expire on March 7, 2005.
The number of shares of common stock to be issued under these warrants and the
exercise price of the warrants will be adjusted in some cases if we issue stock
dividends, subdivide or combine stock, reorganize or reclassify capital stock,
distribute cash dividends, issue common stock or other securities convertible
into common stock (other than in a bona fide underwritten public offering) and
in certain other events. We are also required to give the warrantholders notice
of adjustments in the number of shares issuable under these warrants and of
extraordinary corporate events.
SELLING SECURITYHOLDERS
The shares of common stock or warrants exercisable for shares of common
stock originally were issued by us in transactions exempt from the registration
requirements of the Securities Act of 1933, except for 1,000,000 shares of our
common stock acquired by Apollo in open market transactions and 52,581,285
shares of our common stock received by Apollo in exchange for our debt
securities in our recent restructuring. The selling securityholders
(references to which include, where applicable, their direct and indirect
transferees, pledgees or donees or their successors) may from time to time
offer and sell any or all of the shares of common stock pursuant to this
prospectus.
The table below sets forth the name of each selling securityholder and the
number of shares of common stock that may be offered by each selling
securityholder under this prospectus. The information is based on information
provided to us by or on behalf of the selling securityholders on or prior to
May 6, 2003. The selling securityholders identified below may have sold,
transferred or otherwise disposed of all or a portion of their shares of common
stock since the date on which they provided this information in transactions
exempt from the registration requirements of the Securities Act of 1933.
Information about the selling securityholders may change from time to time. Any
changed information will be set forth in prospectus supplements or
post-effective amendments, as required.
Because the selling securityholders may offer all or some portion of the
shares of common stock, we cannot estimate the number of shares of common stock
that may be held by the selling securityholders upon the completion of any
sales. See 'Plan of Distribution.'
10
BENEFICIAL BENEFICIAL
OWNERSHIP OF BENEFICIAL OWNERSHIP OF PERCENT OF
SHARES OF OWNERSHIP SHARES OF SHARES OF SHARES OF
COMMON STOCK OF WARRANTS COMMON STOCK COMMON STOCK COMMON STOCK
NAME OF SELLING PRIOR TO THE PRIOR TO THE OFFERED AFTER THE OWNED AFTER
SECURITYHOLDER OFFERING OFFERING HEREBY(1) OFFERING(2) THE OFFERING(3)
-------------- -------- -------- --------- ----------- ---------------
Apollo Investment Fund IV,
L.P. ........................ 111,493,258 43,104,980 154,598,238 -- --
Apollo Overseas Partners
IV, L.P. .................... 6,076,094 2,311,710 8,387,804 -- --
Blackstone(4).................. 60,972,527 42,055,024 103,027,551 -- --
LJH Partners LP................ 61,125 42,160 103,285 -- --
Robert C. Fanch Revocable Trust 61,125 42,160 103,285 -- --
BCI Investments II LLC......... 30,563 21,080 51,643 -- --
Atlas Global Growth Fund....... 1,432,586 -- 1,377,486 55,100 --
Clarington Global Equity
Fund......................... 1,744,551 -- 1,700,451 44,100 --
Security Benefit Life Global
Series Fund.................. 1,186,296 -- 1,146,796 39,500 --
Security Benefit Life Worldwide
Equity Series D/VA........... 4,844,949 -- 4,631,249 213,700 --
CUNA Global Series Fund/VA..... 155,766 -- 151,066 4,700 --
JNL/Oppenheimer Global Growth
Series VA.................... 727,640 -- 708,540 19,100 --
Oppenheimer Global Fund........ 102,852,610 -- 99,350,110 3,502,500 --
TD Global Select Fund.......... 5,111,062 -- 5,111,062 -- --
Oppenheimer Global Securities
Fund/VA...................... 25,771,102 -- 24,891,602 879,500 --
Oppenheimer Global Growth &
Income Fund.................. 76,116,475 -- 24,541,475 51,575,000 5.7%
----------- --------- ----------- ----------
Totals..................... 398,637,729 87,577,114 429,881,643 56,333,200 --
---------
(1) Assumes full exercise of each of the holder's Series A
Warrants or Series B Warrants without limitation on
exercise.
(2) Assumes the sale of all shares of common stock that may be
sold in the offering.
(3) Calculated based on Rule 13d-3 of the Securities Exchange
Act of 1934 using shares of common stock outstanding as of
May 6, 2003. In calculating this amount, we treated the
87,577,114 shares of common stock underlying the Series A
Warrants and Series B Warrants as outstanding since the
warrants are currently exerciseable.
(4) 103,027,551 shares of the shares of common stock are held collectively by
Blackstone CCC Capital Partners L.P., Blackstone CCC Offshore Capital
Partners L.P. and Blackstone Family Investment Partnership III L.P.
(collectively, "Blackstone"). Blackstone Management Associates III L.L.C.
("BMA") is the general partner of each of such entities, and as such may
be deemed to share beneficial ownership of the shares owned by Blackstone.
BMA disclaims beneficial ownership of such shares. BMA's business address
is 345 Park Avenue, 31st Floor, New York, New York 10154. Messrs. Peter G.
Peterson and Stephen A. Schwarzman are the founding members of BMA and as
such may be deemed to share beneficial ownership of the shares owned by
Blackstone. Each of such persons disclaims beneficial ownership of such
shares.
11
PLAN OF DISTRIBUTION
We have been advised that the distribution of the common stock by the
selling securityholders may be effected from time to time in one or more
transactions (which may involve block transactions): (1) on the Nasdaq National
Market or such other national security exchange on which our common stock are
listed, in transactions that may include special offerings and exchange
distributions pursuant to and in accordance with the rules of such exchanges,
(2) in the over-the-counter market, (3) in transactions otherwise than on such
exchanges or in the over-the-counter market, or in a combination of any such
transactions or (4) through the writing of options. In connection with sales of
the common stock or otherwise, the selling securityholders may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the common stock and deliver common stock to close out such short
positions, or loan or pledge common stock to broker-dealers that in turn may
sell such securities. Such transactions may be effected by the selling
securityholders at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or at fixed
prices. The selling securityholders may effect such transactions by selling the
common stock to or through broker-dealers and such broker-dealers will receive
compensation in the form of discounts or commissions from the selling
securityholders and may receive commissions from the purchasers of the common
stock for whom they may act as agent (which discounts or commissions from the
selling securityholders or such purchasers will not exceed those customary in
the type of transactions involved).
Any broker-dealers that participate with the selling securityholders in the
distribution of the common stock may be deemed to be 'underwriters' within the
meaning of the Securities Act, and any commissions or discounts received by such
broker-dealers and any profit on the resale of the common stock by such
broker-dealers might be deemed to be underwriting discounts and commissions
under such act.
Upon being notified by the selling securityholders that any material
arrangement has been entered into with a broker or dealer for the sale of the
common stock through a secondary distribution, or a purchase by a broker or
dealer, a supplemented prospectus will be filed, if required, pursuant to Rule
424(b) under the Securities Act, disclosing:
The names of such broker-dealers;
The number of shares involved;
The price at which such shares are being sold;
The commission paid or the discounts or concessions allowed
to such broker-dealer;
Where applicable, that such broker-dealers did not conduct
any investigation to verify the information set out or
incorporated by reference in this prospectus, as
supplemented; and
Other facts material to the transaction.
LEGAL MATTERS
The validity under Delaware law of our common stock offered hereby has been
passed upon for us by Simpson Thacher & Bartlett, New York, New York. From time
to time, Simpson Thacher & Bartlett represents Blackstone on various matters
in the regular course of business. Certain partners of Simpson Thacher &
Bartlett, members of their families, and related persons, have an indirect
interest, through limited partnerships, in less than 1% of our common stock
through a fund affiliated with Blackstone.
EXPERTS
The audited consolidated financial statements of Sirius Satellite Radio Inc.
appearing in Sirius Satellite Radio Inc.'s Annual Report on Form 10-K as of
December 31, 2002 and for the year then ended have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial
12
statements are incorporated herein by reference in reliance upon such report
given on authority of such firm as experts in accounting and auditing.
The audited consolidated financial statements of Sirius Satellite Radio Inc.
appearing in Sirius Satellite Radio Inc.'s Annual Report on Form 10-K as of
December 31, 2001 and for each of the two years in the period ended December 31,
2001 have been audited by Arthur Andersen LLP, independent public accountants,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
Section 11(a) of the Securities Act provides that if a registration
statement at the time it becomes effective contains an untrue statement of a
material fact, or omits a material fact required to be stated therein or
necessary to make the statements therein not misleading, any person acquiring a
security pursuant to such registration statement (unless it is proven that at
the time of such acquisition such person knew of such untruth or omission) may
assert a claim against, among others, an accountant who has consented to be
named as having certified any part of the registration statement or as having
prepared any report for use in connection with the registration statement.
On April 11, 2002, we dismissed Arthur Andersen LLP as our independent
auditors and appointed Ernst & Young LLP. Prior to the date of this prospectus,
the Arthur Andersen partner responsible for the audit of our most recent audited
financial statements as of and for the year ended December 31, 2001 resigned
from Arthur Andersen LLP. As a result, after reasonable efforts, we have been
unable to obtain Arthur Andersen's written consent to the incorporation by
reference into this prospectus of its audit reports with respect to our
consolidated financial statements as of December 31, 2001 and for each of the
two years in the period ended December 31, 2001. Under these circumstances, Rule
437a under the Securities Act permits us to file this prospectus without a
written consent from Arthur Andersen LLP. However, as a result, Arthur Andersen
LLP will not have any liability under Section 11(a) of the Securities Act for
any untrue statements of a material fact contained in the consolidated financial
statements audited by Arthur Andersen LLP or any omissions of a material fact
required to be stated therein. Accordingly, you will be unable to assert a claim
against Arthur Andersen LLP under Section 11(a) of the Securities Act because it
has not consented to the incorporation by reference of its previously issued
report into this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to 'incorporate by reference' in this prospectus other
information we file with it, which means that we can disclose important
information to you by referring you to those documents. This prospectus
incorporates important business and financial information about us that is not
included in or delivered with this prospectus. The information we file later
with the SEC will automatically update and supersede the information included in
and incorporated by reference in this prospectus. We incorporate by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
1. Our Annual Report on Form 10-K for the year ended December 31, 2002.
2. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.
3. Our Current Reports on Form 8-K dated March 31, 2003 and May 14,
2003.
4. The description of our common stock contained in our Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the Exchange Act.
We have filed each of these documents with the SEC and they are available
from the SEC's internet site and public reference rooms described under 'Where
You May Find Additional
13
Information About Us.' You may also request a copy of these filings, at no cost,
by writing or calling us at the following address or telephone number:
Patrick L. Donnelly
Executive Vice President, General Counsel and Secretary
Sirius Satellite Radio Inc.
1221 Avenue of the Americas, 36th floor
New York, New York 10020
(212) 584-5100
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information.
WHERE YOU MAY FIND ADDITIONAL INFORMATION ABOUT US
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any of these reports, statements
or other information at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549 or at its regional offices. You can request copies
of those documents, upon payment of a duplicating fee, by writing to the SEC.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public at the SEC's
internet site at http://www.sec.gov.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by the Registrant in connection with the sale
of the securities being registered. All the amounts shown are estimates except
for the registration fee and the filing fee.
Registration fee............................................ $ 22,953
Legal fees and expenses..................................... 90,000
Accounting fees and expenses................................ 20,000
Printing and duplicating.................................... 10,000
Miscellaneous............................................... 5,000
---------
Total................................................... $147,953
---------
---------
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the DGCL permits each Delaware business corporation to
indemnify its directors, officers, employees and agents against liability for
each such person's acts taken in his or her capacity as a director, officer,
employee or agent of the corporation if such actions were taken in good faith
and in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action,
if he or she had no reasonable cause to believe his or her conduct was unlawful.
Article VII of our Amended and Restated By-Laws provides that we, to the full
extent permitted by Section 145 of the DGCL, shall indemnify all of our past and
present directors and may indemnify all of our past or present employees or
other agents. To the extent that a director, officer, employee or agent of our's
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in such Article VII, or in defense of any claim, issue or
matter therein, he or she shall be indemnified by us against actually and
reasonably incurred expenses in connection therewith. Such expenses may be paid
by us in advance of the final disposition of the action upon receipt of an
undertaking to repay the advance if it is ultimately determined that such person
is not entitled to indemnification.
As permitted by Section 102(b)(7) of the DGCL, Article 11 of our Amended and
Restated Certificate of Incorporation provides that no director shall be liable
to us for monetary damages for breach of fiduciary duty as a director, except
for liability.
(i) for any breach of the director's duty of loyalty to us or
our stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) for the unlawful payment of dividends on or redemption of
our capital stock or
(iv) for any transaction from which the director derived an
improper personal benefit.
We have obtained a policy insuring us and our directors and officers against
certain liabilities, including liabilities under the 1933 Act.
II-1
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1.1 -- Form of Certificate for shares of common stock
(incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-1 (File No. 33-74782)).
4.1.2 -- Form of Certificate of Designations of Series B Preferred
Stock (incorporated by reference to Exhibit A to Exhibit 1
to the Company's Registration Statement on Form 8-A filed
on October 30, 1997 (the 'Form 8-A')).
4.2.1 -- Rights Agreement, dated as of October 22, 1997, between
the Company and Continental Stock Transfer & Trust
Company, as rights agent (the 'Rights Agreement')
(incorporated by reference to Exhibit 1 to the Form 8-A).
4.2.2 -- Form of Right Certificate (incorporated by reference to
Exhibit B to Exhibit 1 to the Form 8-A).
4.2.3 -- Amendment to the Rights Agreement, dated as of October
13, 1998 (incorporated by reference to Exhibit 99.2 to the
Company's Current Report on Form 8-K filed on October 13,
1998).
4.2.4 -- Amendment to the Rights Agreement, dated as of November
13, 1998 (incorporated by reference to Exhibit 99.7 to the
Company's Current Report on Form 8-K filed on November 17,
1998).
4.2.5 -- Amended and Restated Amendment to Rights Agreement, dated
as of December 22, 1998 (incorporated by reference to
Exhibit 6 to the Amendment No. 1 to the Form 8-A, filed
with the Commission on January 6, 1999).
4.2.6 -- Amendment to the Rights Agreement, dated as of June 11,
1999 (incorporated by reference to Exhibit 4.1.8 to the
Company's Registration Statement on Form S-4 (File No.
333-82303) filed on July 2, 1999 (the '1999 Units
Registration Statement')).
4.2.7 -- Amendment to the Rights Agreement, dated as of September
29, 1999 (incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K filed on October 13,
1999).
4.2.8 -- Amendment to the Rights Agreement, dated as of December
23, 1999 (incorporated by reference to Exhibit 99.4 to the
Company's Current Report on Form 8-K filed on December 29,
1999).
4.2.9 -- Amendment to the Rights Agreement, dated as of January
28, 2000 (incorporated by reference to Exhibit 4.6.9 to
the Company's Annual Report on Form 10-K for the year
ended December 31, 1999).
4.2.10-- Amendment to the Rights Agreement, dated as of August 7,
2000 (filed as Exhibit 4.6.10 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
2000).
4.2.11-- Amendment to the Rights Agreement, dated as of January 8,
2002 (filed as Exhibit 4.6.11 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2001).
4.2.12-- Amendment to the Rights Agreement, dated as of October
22, 2002 (incorporated by reference to Exhibit 99.1 to the
Company's Current Report on Form 8-K filed on October 24,
2002).
4.2.13-- Amendment to the Rights Agreement, dated as of March 6,
2003 (incorporated by reference to Exhibit 4.2.13 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 2002 (the '2002 Form 10-K')).
4.3 -- Indenture, dated as of November 26, 1997, between the
Company and IBJ Schroder Bank & Trust Company, as trustee
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3 (File No. 333-34769)
(the '1997 Units Registration Statement')).
4.4 -- Supplemental Indenture, dated as of March 7, 2003,
between the Company and The Bank of New York, as trustee
(incorporated by reference to Exhibit 4.4 to the 2002
Form 10-K).
II-2
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.5 -- Form of 15% Senior Secured Discount Note due 2007
(incorporated by reference to Exhibit 4.2 to the 1997
Units Registration Statement).
4.6 -- Warrant Agreement, dated as of November 26, 1997, between
the Company and IBJ Schroder Bank & Trust Company, as
warrant agent (incorporated by reference to Exhibit 4.3 to
the 1997 Units Registration Statement).
4.7 -- Form of Warrant (incorporated by reference to Exhibit 4.4
to the 1997 Units Registration Statement).
4.8 -- Form of Common Stock Purchase Warrant granted by the
Company to Everest Capital Master Fund, L.P. and to The
Ravich Revocable Trust of 1989 (incorporated by reference
to Exhibit 4.11 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.9 -- Indenture, dated as of May 15, 1999, between the Company
and United States Trust Company of New York, as trustee,
relating to the Company's 14 1/2% Senior Secured Notes due
2009 (incorporated by reference to Exhibit 4.4.2 to the
1999 Units Registration Statement).
4.10 -- Supplemental Indenture, dated as of March 7, 2003,
between the Company and The Bank of New York, as trustee,
(incorporated by reference to Exhibit 4.10 to the 2002
Form 10-K).
4.11 -- Form of 14 1/2% Senior Secured Notes due 2009
(incorporated by reference to Exhibit 4.4.2 to the 1999
Units Registration Statement).
4.12 -- Indenture, dated as of September 29, 1999, between the
Company and United States Trust Company of Texas, N.A., as
trustee, relating to the Company's 8 3/4% Convertible
Subordinated Notes due 2009 (incorporated by reference to
Exhibit 4.2 to the Company's Current Report on Form 8-K
filed on October 13, 1999).
4.13 -- First Supplemental Indenture, dated as of September 29,
1999, between the Company and United States Trust Company
of Texas, N.A., as trustee, relating to the Company's
8 3/4% Convertible Subordinated Notes due 2009
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K filed on October 1, 1999).
4.14 -- Second Supplemental Indenture, dated as of March 3, 2003
among the Company, The Bank of New York, as resigning
trustee, and HSBC Bank USA, as successor trustee, relating
to the Company's 8 3/4% Convertible Subordinated Notes due
2009 (incorporated by reference to Exhibit 4.16 to the
2002 Form 10-K).
4.15 -- Third Supplemental Indenture, dated as of March 7, 2003,
between the Company and HSBC Bank USA, as trustee,
relating to the Company's 8 3/4% Convertible Subordinated
Notes due 2009 (incorporated by reference to Exhibit 4.16
to the 2002 Form 10-K).
4.16 -- Form of 8 3/4% Convertible Subordinated Note due 2009
(incorporated by reference to Article VII of Exhibit 4.01
to the Company's Current Report on Form 8-K filed on
October 11, 1999).
4.17 -- Warrant Agreement, dated as of May 15, 1999, between the
Company and United States Trust Company of New York, as
warrant agent (incorporated by reference to Exhibit 4.4.4
to the 1999 Units Registration Statement).
4.18 -- Second Amended and Restated Pledge Agreement, dated as of
March 7, 2001, among the Company, as pledgor, The Bank of
New York, as trustee and collateral agent, United States
Trust Company of New York, as trustee, and Lehman
Commercial Paper Inc., as administrative agent
(incorporated by reference to Exhibit 4.25 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2001).
4.19 -- Collateral Agreement, dated as of March 7, 2001, between
the Company, as borrower, and The Bank of New York, as
collateral agent (incorporated by reference to Exhibit
4.26 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001).
II-3
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.20 -- Amended and Restated Intercreditor Agreement, dated as of
March 7, 2001, by and between The Bank of New York, as
trustee and collateral agent, United States Trust Company
of New York, as trustee, and Lehman Commercial Paper, as
administrative agent (incorporated by reference to Exhibit
4.27 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001).
4.21 -- Common Stock Purchase Warrant granted by the Company to
Ford Motor Company, dated October 7, 2002 (incorporated by
reference to Exhibit 4.16 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
2002).
4.22 -- Common Stock Purchase Warrant granted by the Company to
DaimlerChrysler Corporation, dated October 25, 2002
(incorporated by reference to Exhibit 4.20 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002).
4.23 -- Amended and Restated Warrant Agreement, dated as of
December 27, 2000, between the Company and United States
Trust Company of New York, as warrant agent and escrow
agent (incorporated by reference to Exhibit 4.27 to the
Company's Registration Statement on Form S-3 (File No.
333-65602)).
4.24 -- Form of Senior Indenture (incorporated by reference to
Exhibit 4.6.1 to the Company's Registration Statement on
Form S-3 (File No. 333-86003)).
4.25 -- Form of Subordinate Indenture (incorporated by reference
to Exhibit 4.6.2 to the Company's Registration Statement
on Form S-3 (File No. 333-86003).
5.1 -- Opinion of Simpson Thacher & Bartlett regarding
legality.*
23.1 -- Consent of Independent Auditors*
23.2 -- Notice Regarding Consent of Arthur Andersen LLP.*
23.3 -- Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1).
24.1 -- Powers of Attorney (included on signature page)
(previously filed with this registration statement).
---------
* Filed herewith.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the 'Calculation of Registration Fee' table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change in such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
II-4
with or furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 15, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer of controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on May 19, 2003.
SIRIUS SATELLITE RADIO INC.
By: /s/ PATRICK L. DONNELLY
..................................
PATRICK L. DONNELLY
EXECUTIVE VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY
(PRINCIPAL FINANCIAL OFFICER)
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities indicated on May 19, 2003.
SIGNATURE TITLE
--------- -----
*
........................................... Chairman of the Board of Directors and Director
DAVID MARGOLESE
*
........................................... President, Chief Executive Officer and Director
JOSEPH P. CLAYTON (principal executive officer)
*
........................................... Vice President and Controller (principal accounting
EDWARD WEBER, JR. officer)
*
........................................... Director
LEON D. BLACK
*
........................................... Director
LAWRENCE F. GILBERTI
*
........................................... Director
JAMES P. HOLDEN
*
........................................... Director
PETER G. PETERSON
*
........................................... Director
JOSEPH V. VITTORIA
* Signed by Patrick L. Donnelly, as Attorney-in-fact
II-6
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1.1 -- Form of Certificate for shares of common stock
(incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-1 (File No. 33-74782)).
4.1.2 -- Form of Certificate of Designations of Series B Preferred
Stock (incorporated by reference to Exhibit A to Exhibit 1
to the Company's Registration Statement on Form 8-A filed
on October 30, 1997 (the 'Form 8-A')).
4.2.1 -- Rights Agreement, dated as of October 22, 1997, between
the Company and Continental Stock Transfer & Trust
Company, as rights agent (the 'Rights Agreement')
(incorporated by reference to Exhibit 1 to the Form 8-A).
4.2.2 -- Form of Right Certificate (incorporated by reference to
Exhibit B to Exhibit 1 to the Form 8-A).
4.2.3 -- Amendment to the Rights Agreement, dated as of October
13, 1998 (incorporated by reference to Exhibit 99.2 to the
Company's Current Report on Form 8-K filed on October 13,
1998).
4.2.4 -- Amendment to the Rights Agreement, dated as of November
13, 1998 (incorporated by reference to Exhibit 99.7 to the
Company's Current Report on Form 8-K filed on November 17,
1998).
4.2.5 -- Amended and Restated Amendment to Rights Agreement, dated
as of December 22, 1998 (incorporated by reference to
Exhibit 6 to the Amendment No. 1 to the Form 8-A, filed
with the Commission on January 6, 1999).
4.2.6 -- Amendment to the Rights Agreement, dated as of June 11,
1999 (incorporated by reference to Exhibit 4.1.8 to the
Company's Registration Statement on Form S-4 (File
No. 333-82303) filed on July 2, 1999 (the '1999 Units
Registration Statement')).
4.2.7 -- Amendment to the Rights Agreement, dated as of September
29, 1999 (incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K filed on October 13,
1999).
4.2.8 -- Amendment to the Rights Agreement, dated as of December
23, 1999 (incorporated by reference to Exhibit 99.4 to the
Company's Current Report on Form 8-K filed on December 29,
1999).
4.2.9 -- Amendment to the Rights Agreement, dated as of January
28, 2000 (incorporated by reference to Exhibit 4.6.9 to
the Company's Annual Report on Form 10-K for the year
ended December 31, 1999).
4.2.10 -- Amendment to the Rights Agreement, dated as of August 7,
2000 (filed as Exhibit 4.6.10 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
2000).
4.2.11 -- Amendment to the Rights Agreement, dated as of January 8,
2002 (filed as Exhibit 4.6.11 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2001).
4.2.12 -- Amendment to the Rights Agreement, dated as of October
22, 2002 (incorporated by reference to Exhibit 99.1 to the
Company's Current Report on Form 8-K filed on October 24,
2002).
4.2.13 -- Amendment to the Rights Agreement, dated as of March 6,
2003 (incorporated by reference to Exhibit 4.2.13 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 2002 (the '2002 Form 10-K')).
4.3 -- Indenture, dated as of November 26, 1997, between the
Company and IBJ Schroder Bank & Trust Company, as trustee
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3 (File No. 333-34769)
(the '1997 Units Registration Statement')).
II-7
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.4 -- Supplemental Indenture, dated as of March 7, 2003,
between the Company and The Bank of New York, as trustee
(incorporated by reference to Exhibit 4.4 to the 2002
Form 10-K).
4.5 -- Form of 15% Senior Secured Discount Note due 2007
(incorporated by reference to Exhibit 4.2 to the 1997
Units Registration Statement).
4.6 -- Warrant Agreement, dated as of November 26, 1997, between
the Company and IBJ Schroder Bank & Trust Company, as
warrant agent (incorporated by reference to Exhibit 4.3 to
the 1997 Units Registration Statement).
4.7 -- Form of Warrant (incorporated by reference to Exhibit 4.4
to the 1997 Units Registration Statement).
4.8 -- Form of Common Stock Purchase Warrant granted by the
Company to Everest Capital Master Fund, L.P. and to The
Ravich Revocable Trust of 1989 (incorporated by reference
to Exhibit 4.11 to the Company's Annual Report on Form
10-K for the year ended December 31, 1997).
4.9 -- Indenture, dated as of May 15, 1999, between the Company
and United States Trust Company of New York, as trustee,
relating to the Company's 14 1/2% Senior Secured Notes due
2009 (incorporated by reference to Exhibit 4.4.2 to the
1999 Units Registration Statement).
4.10 -- Supplemental Indenture, dated as of March 7, 2003,
between the Company and The Bank of New York, as trustee,
(incorporated by reference to Exhibit 4.10 to the 2002
Form 10-K).
4.11 -- Form of 14 1/2% Senior Secured Notes due 2009
(incorporated by reference to Exhibit 4.4.2 to the 1999
Units Registration Statement).
4.12 -- Indenture, dated as of September 29, 1999, between the
Company and United States Trust Company of Texas, N.A., as
trustee, relating to the Company's 8 3/4% Convertible
Subordinated Notes due 2009 (incorporated by reference to
Exhibit 4.2 to the Company's Current Report on Form 8-K
filed on October 13, 1999).
4.13 -- First Supplemental Indenture, dated as of September 29,
1999, between the Company and United States Trust Company
of Texas, N.A., as trustee, relating to the Company's
8 3/4% Convertible Subordinated Notes due 2009
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K filed on October 1, 1999).
4.14 -- Second Supplemental Indenture, dated as of March 3, 2003
among the Company, The Bank of New York, as resigning
trustee, and HSBC Bank USA, as successor trustee, relating
to the Company's 8 3/4% Convertible Subordinated Notes due
2009 (incorporated by reference to Exhibit 4.16 to the
2002 Form 10-K).
4.15 -- Third Supplemental Indenture, dated as of March 7, 2003,
between the Company and HSBC Bank USA, as trustee,
relating to the Company's 8 3/4% Convertible Subordinated
Notes due 2009 (incorporated by reference to Exhibit 4.16
to the 2002 Form 10-K).
4.16 -- Form of 8 3/4% Convertible Subordinated Note due 2009
(incorporated by reference to Article VII of Exhibit 4.01
to the Company's Current Report on Form 8-K filed on
October 11, 1999).
4.17 -- Warrant Agreement, dated as of May 15, 1999, between the
Company and United States Trust Company of New York, as
warrant agent (incorporated by reference to Exhibit 4.4.4
to the 1999 Units Registration Statement).
4.18 -- Second Amended and Restated Pledge Agreement, dated as of
March 7, 2001, among the Company, as pledgor, The Bank of
New York, as trustee and collateral agent, United States
Trust Company of New York, as trustee, and Lehman
Commercial Paper Inc., as administrative agent
(incorporated by reference to Exhibit 4.25 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2001).
II-8
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.19 -- Collateral Agreement, dated as of March 7, 2001, between
the Company, as borrower, and The Bank of New York, as
collateral agent (incorporated by reference to Exhibit
4.26 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001).
4.20 -- Amended and Restated Intercreditor Agreement, dated as of
March 7, 2001, by and between The Bank of New York, as
trustee and collateral agent, United States Trust Company
of New York, as trustee, and Lehman Commercial Paper, as
administrative agent (incorporated by reference to Exhibit
4.27 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001).
4.21 -- Common Stock Purchase Warrant granted by the Company to
Ford Motor Company, dated October 7, 2002 (incorporated by
reference to Exhibit 4.16 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
2002).
4.22 -- Common Stock Purchase Warrant granted by the Company to
DaimlerChrysler Corporation, dated October 25, 2002
(incorporated by reference to Exhibit 4.20 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002).
4.23 -- Amended and Restated Warrant Agreement, dated as of
December 27, 2000, between the Company and United States
Trust Company of New York, as warrant agent and escrow
agent (incorporated by reference to Exhibit 4.27 to the
Company's Registration Statement on Form S-3 (File No.
333-65602)).
4.24 -- Form of Senior Indenture (incorporated by reference to
Exhibit 4.6.1 to the Company's Registration Statement on
Form S-3 (File No. 333-86003)).
4.25 -- Form of Subordinate Indenture (incorporated by reference
to Exhibit 4.6.2 to the Company's Registration Statement
on Form S-3 (File No. 333-86003).
5.1 -- Opinion of Simpson Thacher & Bartlett regarding
legality.*
23.1 -- Consent of Independent Auditors*
23.2 -- Notice Regarding Consent of Arthur Andersen LLP.*
23.3 -- Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1).
24.1 -- Powers of Attorney (included on signature page)
(previously filed with this registration statement).
---------
* Filed herewith.
II-9