UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Sirius XM Radio Inc.
(Exact name of registrant as specified in its charter)
| |
|
|
Delaware
(State of incorporation or organization)
|
|
52-1700207
(I.R.S. Employer Identification No.) |
| |
|
|
1221 Avenue of the Americas, 36th Fl.
New York, New York
|
|
10020
(Zip Code) |
| (Address of principal executive offices) |
|
|
Securities to be registered pursuant to Section 12(b) of the Act:
| |
|
|
Title of each class
to be so registered
|
|
Name of each exchange on which each
class is to be registered |
|
|
|
|
| Preferred Stock Purchase Rights
|
|
NASDAQ Global Select Market. |
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the
Exchange Act and is effective pursuant to General Instruction A.(c), check the following box.
þ
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to General Instruction A.(d), check the following box.
o
Securities to be registered pursuant to Section 12(g) of the Act: None.
TABLE OF CONTENTS
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant’s Securities to be Registered.
On April 28, 2009, our Board of Directors (the “Board”) adopted a rights plan to protect
against limitations on our ability to use our net operating loss carryforwards and certain other
tax benefits (the “NOLs”) to reduce potential future federal income tax obligations. We have
experienced and continue to experience substantial operating losses, and under the Internal Revenue
Code and rules promulgated thereunder we may “carry forward” these losses in certain circumstances
to offset current and future earnings and reduce our federal income tax liability. We believe that
we currently will be able to carry forward our NOLs, and these NOLs could be a substantial asset to
us. If we experience a future “ownership change,” as defined in Section 382 of the Internal
Revenue Code, our ability to use the NOLs could be substantially limited, significantly impairing
the value of that asset. The terms of the rights and the rights plan are set forth in a Rights
Agreement, by and between us and The Bank of New York Mellon, as rights agent, dated as of April
29, 2009 (the “Rights Plan”).
The Rights Plan is intended to act as a deterrent to any person or group (an “Acquiring
Person”) acquiring 4.9% or more of our outstanding common stock (assuming for purposes of this
calculation that all of our outstanding convertible preferred stock is converted into common stock)
without the approval of our Board. The Rights Plan exempts future acquisitions of common stock by
Liberty Radio, LLC and its affiliates, but does not in any respect alter the respective rights and
obligations of the Company and Liberty Radio, LLC and its affiliates under the terms of the
Investment Agreement dated as of February 17, 2009, between the Company and Liberty Radio, LLC.
Any rights held by an Acquiring Person are void and may not be exercised. Our Board may, in its
sole discretion, exempt any person or group from being deemed an Acquiring Person for purposes of
the Rights Plan.
The Rights. As part of the Rights Plan, our Board declared a dividend of one preferred share
purchase right for each outstanding share of common stock. The dividend is payable to our
stockholders of record as of May 11, 2009. If the rights become exercisable, each right would
initially represent the right to purchase from us one one-millionth of a share of our Series C
Junior Preferred Stock for a purchase price of $2.00 (the “Purchase Price”). If issued, each
fractional share of preferred stock would give the stockholder approximately the same dividend,
voting and liquidation rights as does one share of our common stock. Prior to exercise, a right
does not give its holder any rights as a stockholder.
Exercisability. The rights will not be exercisable until the close of business on the tenth
business day after a public announcement by us that a person or group has become an Acquiring
Person. We refer to the date that the rights become exercisable as the “Distribution Date.” Until
the Distribution Date, our common stock certificates will evidence the rights and will contain a
notation to that effect. Any transfer of shares of our common stock prior to the Distribution Date
will constitute a transfer of the associated rights. After the Distribution Date, the rights may
be transferred on the books and records of the rights agent as provided in the Rights Plan.
Subject to the exchange feature described below, after the Distribution Date, each holder of a
right, other than rights beneficially owned by the Acquiring Person (which will thereupon become
void), will have the right to receive upon exercise and payment of the Purchase Price, that number
of shares of our common stock having a market value of two times the Purchase Price.
Exchange. On or after the Distribution Date, we, (i) will if on such date the voting rights
set forth in Section 12 of the Certificate of Designations for our Convertible Perpetual Preferred
Stock, Series B-1, are still in effect, and (ii) at any time thereafter, may, at the option of the
Board, exchange the rights (other than rights owned by such person or group which will have become
void), in whole or in part, at an exchange ratio of one share of our common stock per right
(subject to adjustment).
Expiration. The rights and the Rights Plan will expire on the earliest of (i) August 1, 2011,
(ii) the time at which the rights are redeemed pursuant to the Rights Plan, (iii) the time at which
the rights are exchanged pursuant to the Rights Plan, (iv) the repeal of Section 382 of the
Internal Revenue Code, or any successor statute, if the Board determines that the Rights Plan is no
longer necessary for the preservation of tax benefits, (v) the beginning of a taxable year to which
the Board determines that no tax benefits may be carried forward and (vi) June 30, 2010 if our
stockholders have not approved the Rights Plan.
Redemption. At any time prior to the Distribution Date, our Board may redeem the rights in
whole, but not in part, at a price of $0.00001 per right, subject to adjustment to reflect any
stock split, stock dividend or similar transaction (the “Redemption Price”). The redemption of the
rights may be made effective at such time, on such basis and with such conditions as our Board in
its sole discretion may establish. Immediately upon any redemption of the rights, the right to
exercise the rights will terminate and the only right of the holders of rights will be to receive
the Redemption Price.
Anti-Dilution Provisions. Our Board may make certain adjustments to prevent dilution that may
occur as a result of certain events, including among others, a stock dividend, a stock split or a
reclassification of the preferred shares or our common stock. Such adjustments may include
adjustments to the purchase price of the preferred shares under the rights, the number of preferred
shares issuable pursuant to each right and the number of outstanding rights, in each case as
provided for in the Rights Plan. Generally, no adjustments to the purchase price of less than 1%
will be made.
Amendments. Before the Distribution Date, our Board may amend or supplement the Rights Plan
without the consent of the holders of the rights. After the Distribution Date, our Board may amend
or supplement the Rights Plan only to cure an ambiguity, to alter time period provisions, to
correct inconsistent provisions, or to make any additional changes to the Rights Plan, but only to
the extent that those changes do not impair or adversely affect any rights holder and do not result
in the rights again becoming redeemable, and no such amendment may cause the rights again to become
redeemable or cause the Rights Plan again to become amendable other than in accordance with this
sentence.