Exhibit 3.1
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
XM SATELLITE RADIO INC.
WITH AND INTO
SIRIUS XM RADIO INC.
(Pursuant to Section 253 of the
General Corporation Law of the State of Delaware)
January 12, 2011
Sirius XM Radio Inc., a Delaware corporation (the “Company”), does hereby certify to
the following facts relating to the merger (the “Merger”) of XM Satellite Radio Inc., a
Delaware corporation (“XMSR”), with and into the Company, with the Company remaining as the
surviving corporation:
FIRST: The Company and XMSR are incorporated pursuant to the General Corporation Law of the
State of Delaware (the “DGCL”).
SECOND: The Company owns all of the outstanding shares of capital stock of XMSR, which capital
stock consists only of common stock, par value $0.10 per share, of XMSR.
THIRD: The Board of Directors of the Company (the “Board”), by the following
resolutions duly adopted on December 7, 2010, determined to merge XMSR with and into the Company
pursuant to Section 253 of the DGCL:
RESOLVED, that the Board deems it advisable and in the best interest of the Company and
its stockholders that XM Satellite Radio Inc., a Delaware corporation and wholly-owned
subsidiary of the Company (“XMSR”), be merged with and into the Company pursuant to
and in accordance with Section 253 of the DGCL (the “Merger”), with the Company
continuing its corporate existence as the surviving corporation (the
“Surviving Company”) of the Merger, such merger to
have the effects provided for in Section 253 and Section 259 of
the DGCL; and
RESOLVED,
that in accordance with Section 103(d) and Section 253 of the DGCL, the Merger shall become
effective at the time of filing of a Certificate of Ownership and Merger for the purpose of
effecting the Merger with the Secretary of State of the State of Delaware or at such
subsequent time or date as shall be specified and set forth therein (the “Effective
Time”); and
RESOLVED, that by virtue of the Merger and without any action on the part of the holder
thereof, each then outstanding share of common stock of the Company shall remain unchanged
and continue to remain outstanding as one share of common stock of the Surviving
Company, held by the person who was the holder of such share of common stock of the
Company immediately prior to the Merger; and
RESOLVED, that by virtue of the Merger and without any action on the part of the holder
thereof, each then outstanding share of the Convertible Perpetual Preferred Stock, Series B-1
(“Series B-1 Preferred Stock”) of the Company shall remain unchanged and continue to remain
outstanding as one share of Series B-1 Preferred Stock of the
Surviving Company, having the
powers, rights and privileges provided for in the Certificate of Designation of the Company with
respect to the Series B-1 Preferred Stock (which Certificate of Designation is a part of the
certificate of incorporation of the Company and shall remain in effect as a part of the certificate
of incorporation of the Surviving Company) and as otherwise provided for under the DGCL, and
held by the person who was the holder of such share of Series B-1 Preferred Stock of the Company
immediately prior to the Merger; and
RESOLVED, that by virtue of the Merger and without any action on the part of the holder
thereof, each then outstanding share of capital stock of XMSR shall be canceled and no
consideration shall be issued in respect thereof; and
RESOLVED, that the certificate of incorporation and bylaws of the Company as in effect
immediately prior to the Effective Time shall continue in full force and effect as the
certificate of incorporation and bylaws of the Surviving Company; and
RESOLVED, that the directors and officers of the Company as they exist at the Effective
Time shall continue as the directors and officers of the Surviving Company, until the
earlier of their resignation or removal or until their respective successors are duly
elected or appointed and qualified; and
RESOLVED, that the Merger is intended to qualify as a reorganization under Section
368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), that the
Merger is hereby approved and adopted as a plan of reorganization for purposes of Sections
354 and 361 of the Code and that any action that is necessary to effect such tax treatment
be, and hereby is, authorized and approved; and
RESOLVED, that any officer of the Company be, and each of them hereby is, authorized
and directed to make, execute and acknowledge, in the name and on behalf of the Company, a
Certificate of Ownership and Merger for the purpose of effecting the Merger and to file the
same in the office of the Secretary of State of the State of Delaware, and to do all other
acts and things that may be necessary to carry out and effectuate the purpose and intent of
the foregoing resolutions relating to the Merger; and
FOURTH: The Merger shall become effective upon filing of this Certificate of Ownership and
Merger with the Secretary of State of the State of Delaware.
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