-----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, RCb+CN2Os/7qaEf/gcqwjTpOPX5hFDs9j+/VrArbbIIf+lzHvq+DxK0iFEsVNpJk hcZ76cNWHRWKpoR2QvAejQ== 0000950117-02-002288.txt : 20020925 0000950117-02-002288.hdr.sgml : 20020925 20020925161125 ACCESSION NUMBER: 0000950117-02-002288 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020925 EFFECTIVENESS DATE: 20020925 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIRIUS SATELLITE RADIO INC CENTRAL INDEX KEY: 0000908937 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 521700207 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-100083 FILM NUMBER: 02772143 BUSINESS ADDRESS: STREET 1: 1221 AVENUE OF THE AMERICAS STREET 2: 36TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2128995000 MAIL ADDRESS: STREET 1: 1221 AVENUE OF THE AMERICAS STREET 2: 36TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 FORMER COMPANY: FORMER CONFORMED NAME: CD RADIO INC DATE OF NAME CHANGE: 19940203 S-8 1 a33436.txt SIRIUS SATELLITE RADIO As filed with the Securities and Exchange Commission on September 25, 2002 Registration No.333-___ ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ SIRIUS SATELLITE RADIO INC. (Exact name of registrant as specified in its charter) Delaware 52-170027 (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) SIRIUS SATELLITE RADIO INC. 401(k) SAVINGS PLAN (Full title of the Plan) 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) ------------------------ Copies to: Paul D. Ginsberg Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 ------------------------
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Title of each class Amount to be Proposed maximum Proposed maximum Amount of of securities to be registered(1) Registered(2) offering price per share(3) aggregate offering price(3) registration fee - ------------------------------------------------------------------------------------------------------------------------------ Shares of Sirius Satellite Radio Inc. common stock, par value $0.001 per share (the "Common Stock") 300,000 $1.27 $381,000 $35.05 Preferred Stock Purchase Rights(4) 300,000 (4) (4) (4) - ------------------------------------------------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers any shares of Common Stock and Preferred Stock Purchase Rights that may be issuable pursuant to the anti-dilution provisions of the employee benefit plan described herein. In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests in the plan named above ("Plan Interests") to be offered or sold pursuant to that plan. (2) This amount represents a 300,000 share increase in the number of shares of Common Stock authorized for issuance under the Sirius Satellite Radio Inc. 401(k) Savings Plan. (3) The proposed maximum offering price per share and the registration fee were calculated in accordance with Rule 457(c) and (h) based on the average of the high and low prices for shares of the Common Stock on September 19, 2002, as reported in the Nasdaq National Market System, which was $1.27. (4) Each Preferred Stock Purchase Right (the "Rights") represents the right to purchase one one-hundredth of a share of Series B Preferred Stock for each share of Common Stock. The Rights are appurtenant to and trade with the Common Stock. The value attributable to the Rights, if any, is reflected in the value of the Common Stock, and the registration fee for the Rights is included in the fee for the Common Stock. INTRODUCTION This Registration Statement on Form S-8 is filed by Sirius Satellite Radio Inc., a Delaware corporation (the "Company"), with respect to an additional 300,000 shares of the Company's common stock, par value of $0.001 per share, attached Rights and an indeterminate number of Plan Interests, issuable under the Sirius Satellite Radio Inc. 401(k) Savings Plan (the "Plan"), and consists of those items required by General Instruction E to Form S-8. PART II INFORMATION REQUIRED IN 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 year ended December 31, 2001, as amended by Amendment No. 1 on Form 10-K/A dated April 30, 2002; 2. The Company's Annual Report on Form 11-K for the year ended December 31, 2001; 3. The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2002; 4. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2002; 5. The Company's Current Reports on Form 8-K dated January 3, 2002 and April 11, 2002; 6. The Company's Registration Statement on Form S-8 (File No. 333-81914) dated February 1, 2002; 7. The Company's Registration Statement on Form S-8 (File No. 333-74752) dated December 7, 2001; 8. The Company's Registration Statement on Form S-8 (File No. 333-62818) dated June 12, 2001; 9. The Company's Registration Statement on Form S-8 (File No. 333-47954) dated October 13, 2000; and 10. The Company's Registration Statement on Form S-8 (File No. 333-65473) dated October 8, 1998. 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 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 5. Interests 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 participates in the Plan and other benefit plans established by the Company. The financial statements of Sirius Satellite Radio Inc. 401(k) Savings Plan appearing in the Sirius Satellite Radio Inc. Annual Report (Form 11-K) for the year ended December 31, 2001, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon and incorporated herein by reference. Such financial statements are incorporated herein in reliance upon the report of Ernst & Young LLP pertaining to such financial statements given on the authority of such firm as experts in accounting and auditing. Item 8. Exhibits See Exhibit Index elsewhere herein. 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 September 25, 2002. SIRIUS SATELLITE RADIO INC. By: /s/ Patrick L. Donnelly ----------------------------- Patrick L. Donnelly Executive 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 A. 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 ---------- ----- ---- /s/ Joseph P. Clayton President and Chief Executive September 25, 2002 - --------------------- Officer (Principal Executive Joseph P. Clayton Officer) and Director /s/ John J. Scelfo Executive Vice President and September 25, 2002 - ------------------ Chief Financial Officer John J. Scelfo (Principal Financial Officer) /s/ Edward Weber, Jr. Vice President and Controller September 25, 2002 - --------------------- (Principal Accounting Officer) Edward Weber, Jr. /s/ Leon D. Black Director September 25, 2002 - ----------------- Leon D. Black /s/ Lawrence F. Gilberti Director September 25, 2002 - ------------------------ Lawrence F. Gilberti /s/ James P. Holden Director September 25, 2002 - ------------------- James P. Holden /s/ David Margolese Chairman of the Board of September 25, 2002 - ------------------- Directors and Director David Margolese
/s/ Peter G. Peterson Director September 25, 2002 - --------------------- Peter G. Peterson /s/ Joseph V. Vittoria Director September 25, 2002 - ---------------------- Joseph V. Vittoria
INDEX TO EXHIBITS
Exhibit No. - --------- 5.1 Opinion of Patrick L. Donnelly, Esq., Executive Vice President, General Counsel and Secretary of the Company (filed herewith). 23.1 Consent of Patrick L. Donnelly, Esq., Executive Vice President, General Counsel and Secretary of the Company (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP. 23.3 Consent of Arthur Andersen LLP, omitted pursuant to Rule 437a under the Securities Act of 1933.
EX-5 3 ex5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 Sirius Satellite Radio Inc. 1221 Avenue of the Americas New York, NY 10020 September 25, 2002 Sirius Satellite Radio Inc. 1221 Avenue of the Americas New York, NY 10020 Dear Sirs: I am familiar with the Sirius Satellite Radio Inc. 401(k) Savings Plan (the "Plan") under which 600,000 shares of common stock, par value $0.001 per share, of Sirius Satellite Radio Inc., a Delaware corporation (the "Company"), have been authorized for issuance (the "Shares"). I have acted as counsel to the Company in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-8 (the "Registration Statement") with respect to the registration under the Act of 300,000 Shares, 300,000 Preferred Stock Purchase Rights (the "Rights"), which are appurtenant to, and trade with, the Shares and an indeterminate number of interests in the Plan ("Plan Interests"). In this connection, I have examined such records, documents and proceedings, as I have deemed relevant and necessary as a basis for the opinions expressed herein. Based upon the foregoing, I am of the opinion that Shares, Rights and Plan Interests have been duly authorized for issuance under the Plan by all proper corporate action and, when such Shares, Rights and Plan Interests have been issued pursuant to the provisions of the Plan as set forth in the Registration Statement and any conditions or restrictions relating thereto shall have been satisfied, such Shares will be legally issued, fully paid and non-assessable. When the Rights are issued in accordance with the terms of the Plan and the Rights Agreement, as amended, between the Company and The Bank of New York, as Rights Agent, the Rights will be duly and validly issued. When the Plan Interests are issued in accordance with the terms of the Plan as set forth in the Registration Statement, the Plan Interests will be duly and validly issued. The opinions expressed above are limited to the laws of the State of New York and the General Corporation Law of the State of Delaware. Those opinions are rendered only with respect to laws, and the rules, regulations and orders thereunder, which are currently in effect. The undersigned is not admitted to practice in the State of Delaware. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I come within the category of persons whose consent is required by the Act or the rules and regulations promulgated thereunder. Very truly yours, /s/ Patrick L. Donnelly Patrick L. Donnelly Executive Vice President, General Counsel and Secretary EX-23 4 ex23-2.txt EXHIBIT 23.2 Exhibit 23.2 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-8) pertaining to the Sirius Satellite Radio Inc. 401(k) Savings Plan and the incorporation by reference therein of our report dated June 17, 2002, with respect to the financial statements and schedules of the Sirius Satellite Radio Inc. 401(k) Savings Plan included in the Plan's Annual Report (Form 11-K), for the year ended December 31, 2001, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP New York, New York September 25, 2002 EX-23 5 ex23-3.txt EXHIBIT 23.3 Exhibit 23.3 NOTICE REGARDING CONSENT OF ARTHUR ANDERSEN LLP Section 11(a) of the Securities Act of 1933, as amended, 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 proved 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, Sirius Satellite Radio Inc. ("Sirius") and the Sirius Satellite Radio 401(k) Savings Plan (the "Plan") each dismissed Arthur Andersen LLP as its independent auditor and appointed Ernst & Young LLP as its independent auditor. Prior to the date of this registration statement on Form S-8, the Arthur Andersen LLP partner responsible for the audit of the most recent audited financial statements of both Sirius, as of December 31, 2001 and for the year then ended, and the Plan as of December 31, 2001 and for the year then ended resigned from Arthur Andersen LLP. Further, Sirius understands that Arthur Andersen LLP has ceased auditing public companies prior to the date of this registration statement. As a result, after reasonable efforts, both Sirius and the Plan have been unable to obtain Arthur Andersen LLP's written consent to the incorporation by reference into this registration statement of Arthur Andersen LLP's audit reports with respect to those financial statements. Under these circumstances, Rule 437a under the Securities Act permits Sirius and the Plan to file this registration statement without a written consent from Arthur Andersen LLP. However, because of the omission of that consent, Arthur Andersen LLP will not have any liability under Section 11(a) of the Securities Act for any untrue statement of a material fact contained in the financial statements audited by Arthur Andersen LLP that are incorporated by reference in this registration statement or for any omission of a material fact required to be stated in this registration statement. -----END PRIVACY-ENHANCED MESSAGE-----