-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M7cY+YZ1QFjt69iVoa9G8b9/jxhtsoOog9+336pF89sl7QKJLFEOi3pD8y9r60bO nZLuIUz1sAlGjbvHS9L6Cw== 0001005477-99-004797.txt : 19991020 0001005477-99-004797.hdr.sgml : 19991020 ACCESSION NUMBER: 0001005477-99-004797 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19991019 GROUP MEMBERS: CHERRYWOOD HOLDINGS, INC. GROUP MEMBERS: TELCOM VENTURES LLC GROUP MEMBERS: TELECOM-XM INVESTORS, L.L.C. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: XM SATELLITE RADIO HOLDINGS INC CENTRAL INDEX KEY: 0001091530 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 541878819 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-57011 FILM NUMBER: 99730725 BUSINESS ADDRESS: STREET 1: 1250 23RD STREET NW STREET 2: SUITE 57 CITY: WASHINGTON STATE: DC ZIP: 20037-1100 BUSINESS PHONE: 2029697100 MAIL ADDRESS: STREET 1: 1250 23RD STREET NW STREET 2: SUITE 57 CITY: WASHINGTON STATE: DC ZIP: 20037-1100 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TELCOM VENTURES LLC CENTRAL INDEX KEY: 0001036225 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 541695113 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 211 N UNION STREET STREET 2: SUITE 300 CITY: ALEXANDRIA STATE: VA ZIP: 22314 BUSINESS PHONE: 7035166741 MAIL ADDRESS: STREET 1: 211 N UNION STREET STREET 2: SUITE 300 CITY: ALEXANDRIA STATE: VA ZIP: 22314 SC 13D 1 SCHDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------ SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. __)(1) XM Satellite Radio Holdings Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Class A Common Stock, Par Value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 983759-10-1 - -------------------------------------------------------------------------------- (CUSIP Number) Hal B. Perkins, Esq. Telcom-XM Investors, L.L.C. 211 North Union Street, Suite 300 Alexandria, VA 22314 (703) 706-3800 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 8, 1999 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box |_|. Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) - ---------- (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 983759-10-1 SCHEDULE 13D - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) TELCOM-XM INVESTORS, L.L.C. Tax ID #54-1948896 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_| Not Applicable - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- -------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 2,696,626 OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON -0- WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 2,696,626 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,696,626 (see Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |X| See Item 5. - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.29% (see Item 5) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP No. 983759-10-1 SCHEDULE 13D - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) TELECOM VENTURES L.L.C. Tax ID #54-1695113 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_| Not Applicable - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- -------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 2,696,626 OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON -0- WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 2,696,626 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,696,626 (see Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |X| See Item 5. - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.29% (see Item 5) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP No. 983759-10-1 SCHEDULE 13D - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) CHERRYWOOD HOLDINGS, INC. Tax ID #54-1314785 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |X| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_| Not Applicable - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Kansas - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- -------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 2,696,626 OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON -0- WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 2,696,626 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,696,626 (see Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |X| See Item 5. - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.29% (see Item 5) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! Item 1. Security and Issuer. This statement on Schedule 13D (the "Statement") relates to the Class A Common Stock, par value $0.01 per share (the "Class A Stock"), of XM Satellite Radio Holdings Inc., a Delaware corporation (the "Issuer"). The Issuer's principal executive office is located at 1250 23rd Street, N.W., Washington, DC 20037-1100. The Reporting Persons (as defined below) have entered into a Joint Filing Agreement, dated October 18, 1999, a copy of which is attached hereto as Schedule I. Item 2. Identity and Background. This Statement is being filed by Telcom-XM Investors, L.L.C., a Delaware limited liability company ("Telcom-XM"), Telcom Ventures, L.L.C., a Delaware limited liability company ("Telcom Ventures"), Cherrywood Holdings, Inc., a Kansas corporation ("Cherrywood") (each, a "Reporting Person"). Each of Dr. Rajendea Singh ("Dr. Singh") and Mrs. Neera Singh ("Mrs. Singh") own approximately 40% of the outstanding capital stock of Cherrywood and Mrs. Singh is a trustee for trusts holding in the aggregate approximately 20% of such stock (the "Trusts"). Cherrywood holds a 75% membership interest in Telcom Ventures, but as a result of contractual arrangement with other members of Telcom Ventures, has a 100% interest in Telcom Ventures for purposes of its investment in Telcom-XM. Telcom Ventures holds a 96% membership interest in Telcom-XM. Each of Cherrywood, Telcom Venture and Telcom-XM is a private investment firm. Telcom Ventures specializes in making investments in the telecommunications industry. The address of the principal business and the principal offices of each of the Reporting Persons is 211 N. Union Street, Suite 300, Alexandria, Virginia 22314. For information with respect to the identity and principal occupation of each (i) executive officer and director of Cherrywood see Schedule II attached hereto; (ii) member of the Members Committee (each, a "director") and executive officer of Telcom Ventures see Schedule III attached hereto; and (iii) executive officer and director of Telcom-XM see Schedule IV attached hereto. During the last five years, neither any Reporting Person, nor, to the best knowledge of each Reporting Person, any person identified in Schedules II, III and IV has (i) been convicted in criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such a proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. All Reporting Persons and, to the best knowledge of each Reporting Person, all persons identified in Schedules II, III and IV, are citizens of the United States. Item 3. Source and Amount of Funds or Other Consideration. Beneficial ownership of the 2,696,626 shares of Class A Stock owned of record by Telcom-XM as of the date of this Statement was acquired prior to the consummation of an initial public offering of 10,000,000 shares of Class A Stock (the "Offering") and prior to the Issuer becoming subject to Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The details of the purchase are set forth below. On June 7, 1999, Telcom-XM entered into the Note Purchase Agreement, by and between the Issuer and certain investors signatories thereto (the "Note Agreement"), pursuant to which Telcom-XM purchased a Series A Subordinated Convertible Note of the Issuer due December 31, 2004 (the "Note"), in the aggregate principal amount of $25,000,000. Telcom-XM used its working capital to acquire the Note. Pursuant to the Note Agreement, the Issuer issued $250,000,000 of Series A Subordinated Convertible Notes due December 31, 2004 to several new strategic and financial investors including Telcom-XM, and the Issuer used $75,000,000 of the proceeds from these notes to repay the outstanding loan payable to Worldspace, Inc., a Maryland corporation ("Worldspace"). The Note Agreement provided for automatic conversion of the Note held by Telcom-XM into Class A Stock of the Issuer upon the closing of a firm commitment underwritten public offering of common stock of the Issuer. On October 8, 1999, following the completion of the Offering, the Note owned by Telcom-XM converted into 2,696,626 shares of Class A Stock at a price of $9.52 per shares. As a result of this conversion, as of October 8, 1999, Telcom-XM owned an aggregate of 2,696,626 shares of Class A Stock. Item 4. Purpose of Transaction. The 2,696,626 shares of Class A Stock owned of record by Telcom-XM as of the date of this Statement were acquired by Telcom-XM as a result of the conversion of the Note acquired for $25,000,000 on July 7, 1999, prior to the consummation of the Offering, and prior to the Issuer becoming subject to Section 12(g) of the Exchange Act. Telcom-XM has acquired the Note as an investment in the regular course of business. Certain of Telcom-XM's rights with respect to the Issuer are governed by a shareholders' agreement dated as of July 7, 1999, by and among the Issuer, Telcom-XM, and certain other significant shareholders of the Issuer (the "Shareholders' Agreement"). The Shareholders Agreement is incorporated herein by reference as Exhibit I. Pursuant to the Shareholders' Agreement, one of the members of the Issuer's board of directors was appointed by Telcom-XM and two other parties to the Shareholders' Agreement. Telcom-XM's rights with respect to its shares of Class A Stock are also governed by the TCM Group Agreement dated July 7, 1999, by and among Telcom-XM, Columbia XM Radio Partners, LLC, a Virginia limited liability company ("Columbia"), Madison Dearborn Capital Partners III, L.P., a Delaware limited partnership ("MDCP"), Madison Dearborn Special Equity III, L.P., a Delaware limited partnership ("MDSE") and Special Advisors Fund I, LLC, a Delaware limited liability company ("SAFI" and, together with MDCP and MDSE, "Madison") (the "TCM Group Agreement"). The TCM Group Agreement provides for good faith cooperation among the parties thereto regarding the exercise of registration rights and the appointment of a member of the Issuer's board of directors. Certain other material provisions of the Shareholders' Agreement and the TCM Group Agreement are described in more detail in Item 6 below. The TCM Group Agreement is attached hereto as Exhibit III. There are certain restrictions on Telcom-XM's ability to sell or otherwise transfer its shares of Class A Stock. Under the Shareholders' Agreement, except for affiliated transactions and certain other permitted transfers, Telcom-XM may not transfer any shares of Class A Stock until the date which is one year from the issuance of the Note. In addition, Telcom-XM signed a "lock-up" agreement with Bear, Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette Securities Corporation, the lead underwriters for the Offering. Pursuant to this agreement, Telcom-XM has agreed not to sell, offer to sell, contract to sell, pledge, hypothecate, sell any option or contract to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Stock, for a period of 180 days after the effective date of the registration statement filed by the Issuer in the Offering. Except as described above in this Item 4 and below in Item 6, the Reporting Persons do not have any plans or proposals that relate to or would result in any of the actions or events specified in clauses (a) through (j) of Item 4 of Schedule 13D. Notwithstanding the foregoing, and subject to the restrictions under the Shareholders' Agreement and the TCM Group Agreement, the Reporting Persons may determine to change their investment intent with respect to the Issuer at any time in the future. Subject to the restrictions under the Shareholders' Agreement and the TCM Group Agreement, the Reporting Persons intend to vote their shares as they deem appropriate from time to time. In determining from time to time whether to sell the shares of the Issuer's Class A Stock (and in what amounts) or to retain such shares, the Reporting Persons will take into consideration such factors as they deem relevant, including the business and prospects of the Issuer, anticipated future developments concerning the Issuer, existing and anticipated market conditions from time to time, general economic conditions, regulatory matters, and other opportunities available to the Reporting Persons. The Reporting Persons reserve the right to acquire additional securities of the Issuer in the open market, in privately negotiated transactions (which may be with the Issuer or with third parties) or otherwise, to dispose of all or a portion of their holdings of securities of the Issuer or to change their intention with respect to any or all of the matters referred to in this Item 4. Item 5. Interest in Securities of the Issuer. After giving effect to the issuance of 10,000,000 shares of Class A Stock by the Issuer in the Offering, and based on information provided to the Reporting Persons by the Issuer (the "Available Data"), there were 26,194,471 shares of Class A Stock of the Issuer outstanding on October 8, 1999. As of October 8, 1999, each of Cherrywood, Telcom Ventures and Telcom-XM beneficially owned 2,696,626 shares of Class A Stock, which represents approximately 10.29% of the Class A Stock outstanding. As of October 8, 1999, Dr. Singh beneficially owned 2,723,383 shares of Class A Stock, which represents approximately 10.4% of the Class A Stock outstanding. Subject to the restrictions and agreements described in Item 4 above and in Item 6 below, the Reporting Persons have shared power to vote (or to direct the vote) and shared power to dispose (or to direct the disposition) of 2,696,626 shares of Class A Stock. Each of Dr. Singh, Mrs. Singh and the Trusts expressly disclaims beneficial ownership of 2,696,626 shares of Class A Stock beneficially owned by Cherrywood, Telcom Ventures and Telcom-XM. In July 1999, Dr. Singh as a director of the Issuer was granted an option to purchase 26,757 shares of our Class A common stock at $9.52 per share. These options are immediately exercisable and expire on the tenth anniversary of the date of issuance. Dr. Singh has sole power to vote (or to direct the vote) and sole power to dispose (or to direct the disposition) of 26,757 shares of Class A Stock. The Trusts purchased 80,000 shares of Class A Stock of the Issuer in the Offering, at a purchase price of $12.00 per share, the initial public offering price of the Class A Stock. The Trusts have sole power to vote (or to direct the vote) and sole power to dispose (or to direct the disposition) of 80,000 shares of Class A Stock. The Reporting Persons expressly disclaim beneficial ownership of the shares beneficially owned by the Trusts. To the best knowledge of the Reporting Persons, none of the Reporting Persons, nor any of their executive officers and directors, beneficially own shares of Class A Stock of the Issuer other than as set forth herein. Telcom-XM may be deemed to be part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with the following entities by virtue of the Shareholders' Agreement: (1) General Motors Corporation ("General Motors"); (2) DIRECTV Enterprises, Inc. ("DIRECTV"); (3) Clear Channel Investments, Inc. ("Clear Channel"); (4) American Mobile Satellite Corporation ("American Mobile"); (5) Columbia; and (6) Madison. Telcom-XM and each of the other Reporting Persons expressly disclaims beneficial ownership of the shares of Class A Stock of the Issuer held by General Motors, DIRECTV, Clear Channel, American Mobile, Columbia, or Madison, and the filing of this Statement by the Reporting Persons shall not be construed as an admission by the Reporting Persons that they are, for purposes of Section 13(d) of the Exchange Act, the beneficial owner of any of the shares of Class A Stock of the Issuer held by General Motors, DIRECTV, Clear Channel, American Mobile, Columbia or Madison. Based solely upon the Available Data, the Reporting Persons believe that, as of October 8, 1999 (the closing date of the Offering), General Motors, DIRECTV, Clear Channel, American, Columbia and Madison beneficially owned the number of shares of Class A Stock of the Issuer set forth in the table below, constituting in each case that percentage of the Class A Stock of the Issuer outstanding on October 8, 1999 set forth in the table. Name of Beneficial Owner Number of Shares Percentage ------------------------ ---------------- ---------- General Motors 11,106,504 (1) 30.03% DIRECTV 5,553,252 (2) 17.58% Clear Channel 8,329,877 31.80% American Mobile 18,072,176 (3) 41.00% Columbia 2,776,626 10.60% MDCP 2,702,200 10.31% MDSE 58,247 * SAFI 16,179 * ------------------ * Less than 1% (1) Includes 10,786,504 shares of Class A Stock issuable upon conversion of Series A convertible preferred stock of the Issuer, 5,393,252 of which are owned by DIRECTV, a subsidiary of General Motors. The shares of Class A Stock issuable upon conversion of the Series A convertible preferred stock were deemed to be outstanding for the purpose of computing the percentage of the Class A Stock owned by General Motors, but not for the purpose of computing the percentage of Class A Stock owned by any other person. (2) Includes 5,393,252 shares of Class A Stock issuable upon conversion of Series A convertible preferred stock of the Issuer. The shares of Class A Stock issuable upon conversion of the Series A convertible preferred stock were deemed to be outstanding for the purpose of computing the percentage of the Class A Stock owned by DIRECTV, but not for the purpose of computing the percentage of Class A Stock owned by any other person. (3) Includes 17,872,176 shares of Class A Stock issuable upon conversion of American Mobile's 17,872,176 shares of Class B common stock, $.01 par value per share (the "Class B Stock") of the Issuer. The shares of Class A Stock issuable upon conversion of the Class B Stock were deemed to be outstanding for the purpose of computing the percentage of the Class A Stock owned by American Mobile, but not for the purpose of computing the percentage of Class A Stock owned by any other person. Except for the transactions reported in this Statement, the Reporting Persons have not engaged in any other transactions in the Issuer's Class A Stock within the past 60 days. To the best knowledge of the Reporting Persons, none the Reporting Persons' executive officers or directors has effected any transactions in the Class A Stock within the past 60 days. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that: (1) on October 8, 1999, each of General Motors and DIRECTV acquired from the Issuer in a private placement 5,393,252 shares of the Issuer's Series A convertible preferred stock upon conversion of $50,000,000 principal amount (plus accrued interest) of convertible subordinated notes previously issued to each of General Motors and DIRECTV by the Issuer, at a conversion price of approximately $9.52 per share, and (2) on October 8, 1999, each of General Motors and DIRECTV acquired 160,000 shares of the Issuer's Class A Stock in the Offering, at a purchase price of $12.00 per share, the initial public offering price of the Class A Stock. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that: (1) on October 8, 1999, Clear Channel acquired from the Issuer in a private placement 8,089,877 shares of Class A Stock upon conversion of $75,000,000 principal amount (plus accrued interest) of a convertible subordinated note previously issued to Clear Channel by the Issuer, at a conversion price of approximately $9.52 per share, and (2) on October 8, 1999, Clear Channel acquired 240,000 shares of the Issuer's Class A Stock in the Offering, at a purchase price of $12.00 per share, the initial public offering price of the Class A Stock. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that: (1) on October 8, 1999 Columbia acquired from the Issuer in a private placement 2,696,626 shares of Class A Stock upon conversion of $25,000,000 principal amount (plus accrued interest) of convertible subordinated notes previously issued to Columbia by the Issuer, at a conversion price of approximately $9.52 per share, and (2) on October 8, 1999, Columbia acquired 80,000 shares of the Issuer's Class A Stock in the Offering, at a purchase price of $12.00 per share, the initial public offering price of the Class A Stock. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that: (1) on October 8, 1999, MDCP acquired from the Issuer in a private placement 2,622,200 shares of Class A Stock upon conversion of $24,310,000 principal amount (plus accrued interest) of convertible subordinated notes previously issued to MDCP by the Issuer, at a conversion price of approximately $9.52 per share, and (2) on October 8, 1999, MDCP acquired 80,000 shares of the Issuer's Class A Stock in the Offering, at a purchase price of $12.00 per share, the initial public offering price of the Class A Stock. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that on October 8, 1999, MDSE acquired from the Issuer in a private placement 58,247 shares of Class A Stock upon conversion of $540,000 principal amount (plus accrued interest) of convertible subordinated notes previously issued to MDSE by the Issuer, at a conversion price of approximately $9.52 per share. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that on October 8, 1999, SAFI acquired from the Issuer in a private placement 16,179 shares of Class A Stock upon conversion of $150,000 principal amount (plus accrued interest) of convertible subordinated notes previously issued to SAFI by the Issuer, at a conversion price of approximately $9.52 per share. Based solely upon the information set forth in the Issuer's Prospectus, dated October 5, 1999, and on the Available Data, the Reporting Persons believe that: (1) in January 1999, American Mobile loaned the Issuer approximately $21.4 million, in exchange for shares of common stock of the Issuer and a note convertible into additional shares of common stock of the Issuer, (2) on July 7, 1999, American Mobile acquired from XM Ventures, a trust established by Worldspace, all of Worldspace's debt and equity interests in the Issuer, other than a $75 million loan from Worldspace to the Issuer, in exchange for 8,614,244 shares of American Mobile's common stock, par value $.01 per share (the "Exchange Transaction"), (3) immediately after the Exchange Transaction, the Issuer reorganized its capital structure and the shares of common stock of the Issuer owned by American Mobile were exchanged on a one-for-one basis for shares of Class B Stock and as a result, American Mobile owned 125 shares of Class B Stock of the Issuer, which constituted 100% of the outstanding Class B Stock, and which were the only shares of the Issuer's capital stock then outstanding; also as part of this reorganization, certain of the debt interests acquired by American Mobile in the Exchange Transaction were exchanged for a single convertible note issued by the Issuer, convertible into shares of the Issuer's Class B common stock, (4) in September 1999, the Issuer effected a 53,514 for 1 stock split and as a result, the 125 shares of Class B Stock then owned by American Mobile were exchanged for 6,689,250 shares of Class B Stock, (5) on October 8, 1999, upon the completion of the Offering, all of the convertible notes of the Issuer owned by American Mobile converted into 11,182,926 shares of Class B Stock and as a result of this conversion, as of October 8, 1999, American Mobile owned an aggregate of 17,872,176 shares of Class B Stock, and (6) on October 8, 1999, American Mobile acquired 200,000 shares of the Issuer's Class A Stock in the Offering, at a purchase price of $12.00 per share, the initial public offering price of the Class A Stock. The Reporting Persons do not know of any other person having the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Class A Stock of the Issuer beneficially owned by the Reporting Persons. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Shareholders' Agreement Set forth below is a description of certain material provisions of the Shareholders' Agreement: Governance Provisions. The Issuer's board of directors consists of nine members, one of whom is selected by a majority in interest of Colombia, Madison and Telcom-XM, six of whom are selected by certain other shareholders, and two independent directors, one of whom must be approved by American Mobile, and one of whom must be approved by a majority of certain other shareholders. Following receipt of approval of the FCC to transfer control of the Issuer from American Mobile to a diffuse group of shareholders, the Issuer's board of directors will consist of nine members, one of whom will be selected by a majority in interest of Colombia, Madison and Telcom-XM, five of whom will be selected by certain other shareholders, two of whom will be independent directors of recognized industry experience and stature whose nominations must be approved by American Mobile and a majority of certain other shareholders including Telcom-XM, and one of whom will be the Issuer's President and Chief Executive Officer. The foregoing board rights are subject to the parties to the Shareholders' Agreement maintaining their original investment or certain minimum share percentages in the Issuer. Restrictions on Transfer of Securities. As described in Item 4 above, except for affiliated transactions and certain other permitted transfers, Telcom-XM may not transfer any shares of Class A Stock until the date which is one year from the issuance of the Note. Registration Rights Agreement In addition to the contracts and agreements described above and in Item 4 above, Telcom-XM has certain registration rights with respect to the shares of Class A Stock, pursuant to a registration rights agreement, dated July 7, 1999 (the "Registration Rights Agreement"), by and among the Issuer, Telcom-XM and certain other stockholders named therein. Commencing July 7, 2000, Telcom-XM and the other stockholders that are party to the Registration Rights Agreement are entitled to demand registration with respect to their Class A Stock, including shares issuable upon conversion of other securities. Together with Columbia and Madison, Telcom-XM is entitled to make one demand. These rights are subject to the Issuer's right to defer the timing of a demand registration and an underwriters' right to cut back shares in an underwritten offering. In addition to these demand rights, following the Issuer's commencement of commercial operation, parties to the Registration Rights Agreement holding, in the aggregate, the shares of Class A Stock having a fair market value of not less than $25,000,000, may request the Issuer to file a registration statement pursuant to Rule 415. Parties to the Registration Rights Agreement also have rights to include their Class A Stock in registered offerings initiated by the Issuer, other than an offering for high yield debt. TCM Group Agreement The TCM Group Agreement provides that the parties thereto agree that: (1) they will make good faith efforts to reach a unanimous decision regarding the rights granted in the Registration Rights Agreement, (2) they will make a good faith effort to select one individual to be their representative on the Issuer's Board of Directors in accordance with the Shareholders' Agreement, and (3) that each party may transfer or assign its Issuer securities to affiliates provided that such affiliate agrees to become a party the TCM Group Agreement and in the event a party desires to make a transfer or assignment of its Issuer securities which would bring such party's ownership in the Issuer below 6% equity interest level (on a fully diluted and as-converted basis) such party shall first offer such securities to the other parties. Other than the Shareholders' Agreement, the Registration Rights Agreement and the TCM Group Agreement, there are no contracts, arrangements, understandings, or relationships between the Reporting Persons or, to the best of their knowledge, any executive officer or director of the Reporting Persons, and any other person with respect to any securities of the Issuer, including any contract, arrangement, understanding or relationship concerning the transfer or the voting of any securities of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits. The documents which have been filed as Exhibits are listed in the Exhibit Index herein. Exhibit 1 Shareholders' Agreement, dated as of July 7, 1999, by and among the Issuer, American Mobile Satellite Corporation, Baron Asset Fund, Clear Channel Investments, Inc., Columbia XM Radio Partners, LLC, DIRECTV, Inc., General Motors Corporation, Madison Dearborn Capital Partners III, L.P., Special Advisors Fund I, LLC, Madison Dearborn Special Equity III, L.P., and Telcom-XM Investors, L.L.C. (incorporated by reference to Exhibit 99.2 to American Mobile's registration statement on Form S-3 (File No. 333-81459)). Exhibit 2 Registration Rights Agreement, dated July 7, 1999, by and among the Issuer, American Mobile Satellite Corporation, the Baron Asset Fund, and the holders of Series A subordinated convertible notes of the Issuer named in such agreement (incorporated by reference to Exhibit 99.3 to American Mobile's registration statement on Form S-3 (File No. 333-81459)). Exhibit 3 TCM Group Agreement dated July 7, 1999, by and among Telcom-XM Investors, L.L.C., Columbia XM Radio Partners, LLC, Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P. and Special Advisors Fund I, LLC. Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date: October 18, 1999 CHERRYWOOD HOLDINGS, INC. By: /s/ Rajendra Singh ------------------------------------- Name: Rajendra Singh Title: President Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date: October 18, 1999 TELCOM VENTURES, L.L.C. By: /s/ Rajendra Singh ------------------------------------- Name: Rajendra Singh Title: Chief Executive Officer Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date: October 18, 1999 TELCOM-XM INVESTORS, L.L.C. By: /s/ Rajendra Singh ------------------------------------- Name: Rajendra Singh Title: Chief Executive Officer Schedule I JOINT FILING AGREEMENT The undersigned parties hereby agree that the Schedule 13D filed herewith relating to the Class A Common Stock of XM Satellite Radio Holdings, Inc. is being filed jointly with the Securities and Exchange Commission pursuant to Rule 13d-1(f) on behalf of each such person. Date: October 18, 1999 CHERRYWOOD HOLDINGS, INC. By: /s/ Rajendra Singh ------------------------------------- Name: Rajendra Singh Title: President TELCOM VENTURES, L.L.C. By: /s/ Rajendra Singh ------------------------------------- Name: Rajendra Singh Title: Chief Executive Officer TELCOM-XM INVESTORS, L.L.C. By: /s/ Rajendra Singh ------------------------------------- Name: Rajendra Singh Title: Chief Executive Officer Schedule II CHERRYWOOD HOLDINGS, INC. DIRECTORS AND EXECUTIVE OFFICERS Present Principal Name: Occupation or Employment: ----- ------------------------- Rajendra Singh Representative on Members Committee, President, Treasurer and Director Chairman, Chief Executive Officer and Treasurer of Telcom Ventures, L.L.C. Neera Singh Representative on Members Committee, Executive Vice President, Secretary Executive Vice President, Secretary of and Director Telcom Ventures, L.L.C. Hal B. Perkins General Counsel and Assistant Secretary General Counsel and Assistant of Telcom Ventures, L.L.C. Secretary Rahul Prakash President and Assistant Treasurer of Vice President and Assistant Treasurer Telcom Ventures, L.L.C. Schedule III TELCOM VENTURES, L.L.C. MEMBERS COMMITTEE MEMBERS AND EXECUTIVE OFFICERS Present Principal Name: Occupation or Employment: ----- ------------------------- Rajendra Singh Representative on Members Committee, Chairman, Chief Executive Officer and Treasurer Neera Singh Representative on Members Committee, Executive Vice President, Secretary Rahul Prakash President and Assistant Treasurer Richard Darman Representative on Members Committee Mark Ein Representative on Members Committee Margaret Keast Assistant Treasurer Hal B. Perkins General Counsel and Assistant Secretary Schedule IV TELCOM-XM INVESTORS, L.L.C. MEMBERS COMMITTEE MEMBERS AND EXECUTIVE OFFICERS Present Principal Name: Occupation or Employment: ----- ------------------------- Rajendra Singh Representative on Members Committee, Representative on Members Committee, Chairman, Chief Executive Officer and Chairman, Chief Executive Officer Treasurer of Telcom Ventures, L.L.C. and Treasurer Neera Singh Representative on Members Committee, Representative on Members Committee, Executive Vice President, Secretary of Executive Vice President and Secretary Telcom Ventures, L.L.C. Rahul Prakash President and Assistant Treasurer of Representative on Members Committee, Telcom Ventures, L.L.C. President and Assistant Treasurer Hal B. Perkins General Counsel and Assistant General Counsel and Assistant Secretary of Telcom Ventures, L.L.C. Secretary EX-99.3 2 TCM GROUP AGREEMENT EXHIBIT III TCM GROUP AGREEMENT THIS TCM GROUP AGREEMENT (the "Agreement") is made this 7th day of July, 1999, by and among Telcom-XM Investors, L.L.C., a Delaware limited liability company ("Telcom"), Columbia XM Radio Partners, LLC, a Virginia limited liability company ("Columbia"), Madison Dearborn Capital Partners III, L.P., a Delaware limited partnership ("MDCP"), Madison Dearborn Special Equity III, L.P., a Delaware limited partnership ("MDSE") and Special Advisors Fund I, LLC, a Delaware limited liability company ("SAFI", and together with MDCP and MDSE, "Madison"), each of Telcom, Columbia and Madison a "Party" and collectively, the "Parties" or the "TCM Group". For all purposes of this TCM Group Agreement, Madison shall be regarded and shall collectively have the rights of one "Party". R E C I T A L S WHEREAS, pursuant to that certain Note Purchase Agreement, dated as of June 7, 1999, between XM Satellite Radio Holdings Inc., a Delaware corporation ("XM"), each of the Parties and the other parties named therein (the "Note Purchase Agreement"), each of the Parties has agreed to purchase certain Series A Subordinated Convertible Notes ("Notes") to be issued by XM, which Notes are convertible into shares of the Common Stock of XM ("XM Stock" and collectively with the Notes, "XM Securities"); WHEREAS, each of the Parties shall, at the closing of the Note Purchase Agreement, enter into a Shareholders Agreement, in a form substantially similar to Exhibit A hereto, by and among XM, each of the Parties and the other parties named therein (the "Shareholders Agreement") setting forth certain rights and obligations of the TCM Group, the other purchasers of Notes and XM; WHEREAS, each of the Parties shall also, at the closing of the Note Purchase Agreement, enter into a Registration Rights Agreement, in a form substantially similar to Exhibit B hereto, by and among XM, each of the Parties and the other parties named therein (the "Registration Rights Agreement") setting forth certain rights and obligations of the TCM Group, the other purchasers of Notes and XM with respect to the XM Securities; WHEREAS, the Parties wish to set forth the procedures which will govern the exercise of the rights granted to the TCM Group in each of the Registration Rights Agreement and the Shareholders Agreement; WHEREAS, each of the Parties has, simultaneously with the execution of this Agreement, entered into the Limited Liability Company Agreement of TCM, LLC (the "LLC Agreement") pursuant to which each of the Parties has become a member of TCM, LLC, a Delaware limited liability company (the "LLC"); WHEREAS, the Parties, as members of the LLC have consented to the LLC's entry into an Operational Assistance Agreement with XM (the "XM Agreement") pursuant to which the LLC will have a strategic business relationship with XM and shall have the right, so long as the TCM group, in the aggregate, maintains a five percent level of ownership of XM Securities, to utilize certain "bandwidth" (as defined in the XM Agreement") licensed to XM for commercial purposes; NOW, THEREFORE, in consideration of the terms and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Defined Terms. Capitalized terms used herein and not otherwise defined shall have the respective meanings provided therefor in the Note Purchase Agreement, the Shareholders Agreement or the Registration Rights Agreement, as applicable. 2. Registration Rights Agreement. a) Actions Requiring Majority Approval. The Parties shall each make good faith efforts to reach unanimous decisions relating to the exercise by the TCM Group (or any of the Parties) of any of the following rights granted to the TCM Group in the Registration Rights Agreement. Notwithstanding the immediately preceding sentence, the exercise of such rights, in the absence of such a unanimous decision by the Parties, shall only require the prior written consent of Parties holding a majority in interest of XM Securities: (i) the exercise of the Demand Registration rights provided for in Section 2.1 of the Registration Rights Agreement; or (ii) except as set forth in Section 2(c) below, the taking of any material actions or decisions (e.g. selection of underwriters) under the Registration Rights Agreement. b) Expenses. Any expenses to be borne by the TCM Group pursuant to the Registration Rights Agreement shall be shared equally by each of the Parties. c) Discretionary Actions. Any Party may, on its own and in its own discretion, take any of the following actions or exercise any of the following rights granted to it as a member of the TCM Group under the Registration Rights Agreement: EIII-2 (i) register any of its Registrable Securities pursuant to the Shelf Registration provisions set forth in Section 2.2 of the Registration Rights Agreement; or (ii) register any of its Registrable Securities pursuant to the Piggyback Registration rights provisions set forth in Section 2.3 of the Registration Rights Agreement. 3. Shareholders Agreement. a) XM Board Member Selection. The Parties shall each make good faith efforts to select, by a unanimous written consent, one individual to be their representative on the XM Board of Directors pursuant to Section 5.1 of the Shareholders Agreement (the "TCM Group Director"). Notwithstanding the preceding sentence, in the absence of such a unanimous decision, the Parties holding a majority in interest of XM Securities may, by written consent, select the TCM Group Director. b) Initial Director. The Parties hereby select Dr. Rajendra Singh as the initial TCM Group Director. c) Removal/Successor Directors. Removal of the TCM Group Director and appointment of successor TCM Group Directors shall require the approval of Parties holding a majority in interest of XM Securities. 4. Transfers of XM Securities. In each case subject to the applicable provisions of the Shareholders Agreement, each Party may transfer all or part of its holdings of XM Securities, provided, however, that: a) any transfer or assignment to an affiliate is permitted so long as such affiliate agrees to join this Agreement as a Party; b) subject to clause (a) above, each transferee, successor or assign of any XM Securities shall agree to be bound by and to comply with the terms of this TCM Group Agreement and shall document such agreement by executing a counterpart of this Agreement prior to such transfer (however, the failure of any such transferee to so execute this Agreement shall not act as a waiver of the effects of this Section 4); c) in the event any Party (a "Selling Party") intends to make a transfer or assignment of XM Securities which would bring the TCM Group's (in the aggregate) ownership of XM Securities below a 6% equity interest level (on a fully diluted and as-converted basis) such Selling Party shall, prior to effecting any such transfer, deliver or mail by certified mail or overnight courier a written notice ("Right of First Offer Notice") to each other Party stating its bona fide intention to sell, transfer or assign some or all of its XM Securities (the "Offered Securities") and agrees to negotiate in good faith with each other Party for a period of 30 days following the date of such Right of First Offer Notice (the EIII-3 "Exclusivity Period"), whereby each other Party (each a "Buying Party") shall be given the first exclusive and irrevocable option (but not the obligation) to purchase any or all of the Offered Securities; provided that if there is more than one Buying Party, no Buying Party may purchase more than its proportionate share (based on the number (or principal amount) of XM Securities held by all Buying Parties) of the XM Securities so offered unless one or more or the other Buying Parties elects to purchase less than its proportionate share of the Offered Securities; d) if the Selling Party does not agree to accept any offers (or there are not offers made with respect to all of the Offered Securities) made by the Buying Parties (each and any such offer, a "Purchase Offer") prior to the expiration of the Exclusivity Period, the Selling Party shall, for a period of 60 days from the expiration of the Exclusivity Period (the "Sale Period"), be permitted to sell any Offered Securities not subject an accepted Purchase Offer to a third-party buyer for a purchase price or other consideration not equal to or lower than the highest Purchaser Offer for any of the Offered Securities and on terms and conditions no more favorable to such third-party buyer than those set forth in the highest Purchaser Offer; e) if Purchase Offers for all of the Offered Securities are accepted by the Selling Party, the sale of such Offered Securities shall be closed at a time and location mutually acceptable to the Selling Party and the Buying Parties, but in no event later than thirty days following the expiration of the Exclusivity Period; f) the Selling Party shall, at the earliest of (x) the closing of any sale of Offered Securities to a third party and (y) the expiration of the Sale Period, sell to each Buying Party from which it accepted a Purchase Offer the Offered Securities subject to such Purchase Offer; g) any Offered Securities not subject to an accepted Purchase Offer and not sold to a third party or a Buying Purchaser prior to the expiration of the Sale Period shall become subject again to the provisions of Sections 4(c)-(f) hereof and any future offer of such Offered Securities or any other XM Securities held by the Selling Party shall be made pursuant to such provisions; h) each Party shall, upon any attempted transfer or assignment by another Party of any of its holdings of XM Securities in contravention of this Agreement, have the right to take appropriate legal action, including, but not limited to seeking an injunction or the imposition of other equitable remedies, in order to enforce the terms of this Agreement. 5. Notices. Notices hereunder shall be sent by certified mail, return receipt requested, hand delivery or facsimile transmission (promptly followed by certified mail) or overnight courier as follows: To: Telcom-XM Investors, L.L.C. 211 N. Union Street, Suite 300 EIII-4 Alexandria, VA 22314 Fax: 703-706-3837 Attn: President and General Counsel with a copy to: Dewey Ballantine LLP 1301 Avenue of the Americas New York, NY 10019 Fax: 212-259-6333 Attn: William J. Phillips, Esq. To: Columbia XM Radio Partners, LLC 201 North Union Street, Suite 300 Alexandria, VA 22314 Fax: 703-519-3904 Attn: James B. Fleming with a copy to: Edwards & Angell, LLP 101 Federal Street Boston, MA 02110 Fax: 617-439-4170 Attn: Stephen O. Meredith, Esq. To : Madison Dearborn Capital Partners III, L.P. Madison Dearborn Special Equity III, L.P. Special Advisors Fund I, LLP Three First National Plaza Chicago, IL 60602 Fax: 312-895-1225 Attn: James M. Perry, Jr. with a copy to: Edwards & Angell, LLP 101 Federal Street Boston, MA 02110 Fax: 617-439-4170 Attn: Stephen O. Meredith, Esq. 6. Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. EIII-5 7. Binding Effect. This Agreement shall be binding upon and inure to the benefit of all of the Parties and, to the extent permitted by this Agreement, their successors, legal representatives and assigns. 8. Interpretation. Throughout this Agreement, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be applicable. All references herein to "Sections" and clauses shall refer to corresponding provisions of this Agreement unless specified otherwise in a particular instance. 9. Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. If any provision of this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced in whole or in part, such provision shall be interpreted so as to remain enforceable to the maximum extent permissible consistent with applicable law and the remaining conditions and provisions or portions thereof shall nevertheless remain in full force and effect and enforceable to the extent they are valid, legal and enforceable, and no provisions shall be deemed dependent upon any other covenant or provision unless so expressed herein. 10. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties hereto had signed the same document. All counterparts shall be construed together and shall constitute one instrument. 11. Entire Agreement. This Agreement, along with the Shareholders Agreement and the Registration Rights Agreement, constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto. 12. Governing Law. This Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of New York, and all rights and remedies shall be governed by such laws. 13. Amendments and Waivers. Any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of each of the Parties. 14. Specific Performance. Each Party, in addition to being entitled to exercise all rights provided herein or granted by law, will be entitled to specific performance of its rights under this Agreement. Each Party agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. 15. Choice of Forum; Jury Trial Waiver. IN THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE SOLE FORUM FOR RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS THE EIII-6 SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE COUNTY OF NEW YORK OR THE FEDERAL COURTS LOCATED IN SUCH STATE AND COUNTY, AND RELATED APPELLATE COURTS. THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE. THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EIII-7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written. TELCOM-XM INVESTORS, L.L.C. By: /s/ Rahul Prakash ------------------------------------- Name: Rahul Prakash Title: President COLUMBIA XM RADIO PARTNERS, LLC By Columbia Capital LLC, its Managing Member By: James B. Fleming, Jr. ------------------------------------- Name: James B. Fleming, Jr. Title: Managing Member MADISON DEARBORN CAPITAL PARTNERS III, L.P. By: Madison Dearborn Partners III, L.P., its general partner By: Madison Dearborn Partners LLC, its general partner By: /s/ James N. Perry, Jr. ------------------------------------- Name: James N. Perry, Jr. Title: Managing Director MADISON DEARBORN SPECIAL EQUITY III, L.P. By: Madison Dearborn Partners III, L.P., its general partner By: Madison Dearborn Partners LLC, its general partner By: /s/ James N. Perry, Jr. ------------------------------------- Name: James N. Perry, Jr. Title: Managing Director SPECIAL ADVISORS FUND I, LLC By: Madison Dearborn Partners III, L.P., its manager By: Madison Dearborn Partners LLC, its general partner By: /s/ James N. Perry, Jr. ------------------------------------- Name: James N. Perry, Jr. Title: Managing Director EIII-8 EXHIBIT A ATTACH FORM OF SHAREHOLDERS AGREEMENT EIII-9 EXHIBIT B ATTACH FORM OF REGISTRATION RIGHTS AGREEMENT EIII-10 -----END PRIVACY-ENHANCED MESSAGE-----