Registration No. 333-______________
As filed with the Securities and Exchange Commission on February 29, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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)
DELAWARE 52-1700207
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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)
CD RADIO INC. 1994 STOCK OPTION PLAN
CD RADIO INC. AMENDED AND RESTATED 1994 DIRECTORS' NONQUALIFIED
STOCK OPTION PLAN
SIRIUS SATELLITE RADIO 1999 LONG-TERM STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLANS)
PATRICK L. DONNELLY
SENIOR 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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Copies to:
PAUL D. GINSBERG
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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CALCULATION OF REGISTRATION FEE
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Title of each class Amount to be Proposed maximum offering Proposed maximum Amount of
of securities to be registered Registered(1) price per share (2) aggregate offering price (2) registration fee
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Shares of Sirius Satellite Radio 958,750(3) $28.47 $27,295,612.50 $7,206.04
Inc. common stock, par value
$.001 per share (the "Common
Stock"), issuable pursuant to
outstanding stock options
granted under the CD Radio Inc.
1994 Stock Option Plan and the
CD Radio Inc. Amended and
Restated 1994 Directors'
Nonqualified Stock Option Plan
Shares of Common Stock issuable 4,341,500 $30.30 $131,547,450.00 $34,728.53
pursuant to outstanding stock
options granted under the Sirius
Satellite Radio 1999 Long-Term
Stock Incentive Plan
Shares of Common Stock issuable 5,200,123 $58.78 $305,663,229.94 $80,695.09
pursuant to unissued stock
options which may be granted
under the Sirius Satellite Radio
1999 Long-Term Stock Incentive
Plan
TOTAL 10,500,373 $464,506,292.44 $122,629.66
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(1) Plus any additional shares of Common Stock that may be issuable pursuant
to the anti-dilution provisions of the CD Radio Inc. 1994 Stock Option
Plan, the CD Radio Inc. Amended and Restated 1994 Directors' Nonqualified
Stock Option Plan and the Sirius Satellite Radio 1999 Long-Term Stock
Incentive Plan. Also 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 Rights, if any, is reflected in the price of the shares of Common
Stock.
(2) The proposed maximum offering price per share and the registration fee
were calculated in accordance with Rules 457(c) and (h) solely for the
purpose of determining the amount of the registration fee. For shares of
Common Stock issuable pursuant to outstanding stock options, the price is
computed on the basis of the weighted average exercise price. For shares
of Common Stock issuable pursuant to unissued stock options which may be
granted, the price is based on the average of the high and low prices for
shares of Common Stock on February 27, 2000, as reported in the Nasdaq
National Market System, which was $58.78
(3) The remaining 1,600,000 shares of Common Stock reserved for issuance under
the CD Radio Inc. 1994 Stock Option Plan and the CD Radio Inc. Amended and
Restated 1994 Director's Nonqualified Stock Option Plan (the "1994 Plans")
were registered under Form S-8 Registration Statements previously filed
with the Commission. Specifically, 1,250,000 shares of Common Stock
issuable under the 1994 Plans were registered under a Form S-8
Registration Statement filed with the Commission on May 23, 1995 (File No.
33-92588) and 350,000 shares of Common Stock issuable under the 1994 Plans
were registered under a Form S-8 Registration Statement filed with the
Commission on October 30, 1996 (File No. 333-15085). As provided pursuant
to Rule 429 under the Securities Act of 1933, these 1,600,000 shares of
Common Stock are hereby carried forward to this Registration Statement.
Aggregate registration fees of $2,423.17 were paid upon these filing of
the prior Registration Statements.
EXPLANATORY NOTE
The Section 10(a) corresponding prospectus being delivered by Sirius
Satellite Radio Inc. (the "Company") to participants in each of the CD Radio
Inc. 1994 Stock Option Plan, the CD Radio Inc. Amended and Restated 1994
Directors' Nonqualified Stock Option Plan and the Sirius Satellite Radio 1999
Long-Term Stock Incentive Plan (collectively, the "Plans") as required by Rule
428 under the Securities act of 1933, as amended (the "Securities Act"), has
been prepared in accordance with the requirements of Form S-8 and relates to
shares of common stock, par value $.001 per share, of the Company (the "Common
Stock") which have been reserved for issuance pursuant to each of the Plans. The
information regarding each of the Plans required in the corresponding Section
10(a) prospectus is included in documents being maintained and delivered by the
Company as required by Rule 428 under the Securities Act. The Company shall
provide to participants in each of the Plans a written statement advising them
of the availability without charge, upon written or oral request, of documents
incorporated by reference herein, as is required by Item 2 of Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 filed with the Commission on March 31,
1999, as amended by the Company's Report on Form 10-K/A filed
with the Commission on April 30, 1999;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 30, 1999 filed with the Commission on May 14,
1999;
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999 filed with the Commission on August 12,
1999;
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999, filed with the Commission on
November 15, 1999;
5. The Company's Current Report on Form 8-K filed with the
Commission on January 6, 1999.
6. The Company's Current Report on Form 8-K dated September 29,
1999 filed with the Commission on October 13, 1999;
7. The Company's Current Report on Form 8-K dated December 23,
1999 filed with the Commission on December 28, 1999;
8. The Company's Current Report on Form 8-K dated January 28,
2000 filed with the Commission on February 1, 2000; and
9. The description of the Common Stock contained in our
Registration Statement on Form 8-A filed pursuant to Section
12(b) of the Securities Exchange Act of 1934 and
declared effective on September 13, 1994 (including any
amendment or report filed for the purpose of updating such
description).
All other documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, subsequent to the date of this registration statement and prior to the
filing of a post-effective amendment which indicates that all securities
registered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded to
the extent that a statement contained in this registration statement or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Patrick L. Donnelly, Esq., whose legal opinion with respect to the
securities registered hereunder is filed as Exhibit 5.1 hereto, is an employee
of the Company and may participate in the Plans and other benefit plans
established by the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
corporation to indemnify its directors, officers, employees and agents against
certain liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended, provided they act in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation. The Company's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws require the Company to indemnify
its officers and directors to the full extent permitted by Delaware law,
provided that such officers or directors acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interests of the
Company and, with respect to any criminal action or proceeding, with no
reasonable cause to expect his or her action was unlawful. Also, indemnification
under the Company's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws will not be available where an officer or director
is adjudged to be liable for negligence or misconduct in the performance of his
or her duty to the Company. The Company's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws also provide for the Company to
purchase and maintain insurance on behalf of any past or current officer or
director against any liability that may be asserted or arise from his or her
role as an officer or director.
Section 102 of the Delaware General Corporation Law authorizes a
corporation to limit or eliminate its directors' liability to the corporation or
its stockholders for monetary damages for breaches of fiduciary duties, other
than for (i) breaches of the duty of loyalty, (ii) acts or omissions involving
bad faith, intentional misconduct or knowing violations of the law, (iii)
unlawful payments of dividends, stock purchases or redemptions, or (iv)
transactions from which a director derives an improper personal benefit. The
Company's Amended and Restated Certificate of Incorporation contains provisions
limiting the liability of the directors to the Company and to its stockholders
to the full extent permitted by Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes: (i) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement to include any material information with respect to
the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement; (ii)
that, for the purpose of determining any liability under the Securities Act of
1933, as amended, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (iii) 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, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (and each filing of an
employee benefit plan's annual report pursuant to Section15(d) of the Securities
Exchange Act of 1934), that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, the
registrant's Amended and Restated Certificate of Incorporation or Amended and
Restated Bylaws, 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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
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 February 29,
2000.
SIRIUS SATELLITE RADIO INC.
By: /s/ Patrick L. Donnelly
---------------------------------------
Patrick L. Donnelly
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Patrick L. Donnelly and Douglas
Kaplan, and each of them, his true and lawful agent, proxy and attorney-in-fact,
each acting alone with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to (i) act on, sign
and file with the Commission any and all amendments (including post-effective
amendments) to this registration statement together with all schedules and
exhibits thereto, (ii) act on, sign and file such certificates, instruments,
agreements and other documents as may be necessary or appropriate in connection
therewith, and (iii) take any and all actions which may be necessary or
appropriate in connection therewith, granting unto such agents, proxies and
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing necessary or appropriate to be done, as fully for
all intents and purposes as he might or could do in person, hereby approving,
ratifying and confirming all that such agents, proxies and attorneys-in-fact,
any of them or any of his or their substitutes may lawfully do or cause to be
done by virtue thereof.
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 and on the dates indicated:
Signatures Title Date
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/s/ David Margolese Chairman and Chief Executive Officer February 29, 2000
------------------------ (Principal Executive Officer and
David Margolese Principal Financial Officer)
/s/ Robert D. Briskman Director February 29, 2000
------------------------
Robert D. Briskman
/s/ Lawrence F. Gilberti Director February 29, 2000
-------------------------
Lawrence F. Gilberti
/s/ Joseph V. Vittoria Director February 29, 2000
---------------------------
Joseph V. Vittoria
/s/ Ralph V. Whitworth Director February 29, 2000
-------------------------
Ralph V. Whitworth
/s/ Edward Weber, Jr. Vice President and Controller February 29, 2000
------------------------ (Principal Accounting Officer)
Edward Weber, Jr.
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
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4.1 Certificate of Ownership and Merger merging Sirius Satellite Radio Inc. into CD
Radio Inc. dated November 18, 1999 (filed herewith).
4.2 Certificate of Amendment, dated June 16, 1997, to the CD Radio Inc. Certificate of
Incorporation and the Company's Amended and Restated Certificate of Incorporation
dated January 31, 1994 (incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1999).
4.3 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (File No. 33-74782) (the "S-1 Registration Statement")).
4.4 Sirius Satellite Radio 1999 Long-Term Stock Incentive Plan
(filed herewith).
4.5 CD Radio Inc. 1994 Stock Option Plan (incorporated by reference to Exhibit 10.21
to the S-1 Registration Statement).
4.6 CD Radio Inc. Amended and Restated 1994 Directors' Nonqualified Stock Option Plan
(incorporated by reference to Exhibit 10.22 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
5.1 Opinion of Patrick L. Donnelly, Senior Vice President,
General Counsel and Secretary of the Company (filed
herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Patrick L. Donnelly (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).