exv99waw1wi
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OFFER TO
PURCHASE |
Exhibit
(a)(1)(i) |
SIRIUS XM RADIO INC.
Offer to Purchase for Cash
Any and All of its Outstanding
31/4% Convertible
Notes due 2011
(CUSIP No. 82966UAD5)
At the purchase price of $1,007.50 per $1,000 principal
amount of Notes
THE OFFER (AS DEFINED BELOW) WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON APRIL 20, 2011, UNLESS EXTENDED (SUCH TIME
AND DATE, AS THE SAME MAY BE EXTENDED, THE EXPIRATION
TIME). HOLDERS MUST VALIDLY TENDER AND NOT VALIDLY
WITHDRAW THEIR NOTES PRIOR TO THE EXPIRATION TIME TO BE
ELIGIBLE TO RECEIVE THE PURCHASE PRICE OFFERED. TENDERS OF
NOTES MAY BE WITHDRAWN PRIOR TO THE EXPIRATION TIME.
Sirius XM Radio Inc. (the Company,
we or us) hereby makes an
offer (the Offer), upon the terms and subject
to the conditions set forth in this Offer to Purchase (as the
same may be amended or supplemented, this Offer to
Purchase) and the related Letter of Transmittal (as
the same may be amended or supplemented, the Letter of
Transmittal), to purchase any and all of the
Companys issued and outstanding
31/4% Convertible
Notes due 2011 (the Notes), for cash, at a
purchase price equal to $1,007.50 per $1,000 principal amount of
Notes purchased (the Purchase Price), that
are validly tendered and not validly withdrawn prior to the
Expiration Time. If a Holder (as defined below) validly tenders
its Notes prior to the Expiration Time and the Company accepts
such Notes for payment, upon the terms and subject to the
conditions of the Offer, the Company will also pay to such
Holder all accrued and unpaid interest on such Notes, if any, up
to, but not including, the Payment Date (as defined herein)
(Accrued Interest). Interest on the Notes due
on April 15, 2011 will be paid on the due date to holders at the
close of business on April 1, 2011 pursuant to the terms of the
Notes and the related indenture. No tenders will be valid if
submitted after the Expiration Time.
The Companys obligation to accept for payment, and to
pay for, any Notes validly tendered and not validly withdrawn
pursuant to the Offer is subject to satisfaction of all of the
conditions described in this Offer to Purchase. The Offer is not
conditioned upon the receipt of financing or the tender of any
minimum principal amount of Notes. See Conditions to the
Offer.
Any holder of Notes (each, a Holder, and
collectively, Holders) desiring to tender,
and any beneficial owner of Notes desiring that the Holder
tender, all or any portion of such Holders Notes must
comply with the procedures for tendering Notes set forth herein
in Procedures for Tendering and Withdrawing Notes
and in the Letter of Transmittal.
Any questions or requests for assistance concerning the Offer
may be directed to Morgan Stanley & Co. Incorporated
(the Dealer Manager) or Global Bondholder
Services Corporation (the Information Agent)
at their respective addresses and telephone numbers set forth on
the back cover of this Offer to Purchase. Requests for
additional copies of this Offer to Purchase, the Letter of
Transmittal or any other related documents may be directed to
the Information Agent at its address and telephone numbers set
forth on the back cover of this Offer to Purchase. Beneficial
owners should contact their broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the
Offer. Global Bondholder Services Corporation is acting as
depositary (the Depositary) in connection
with the Offer.
NONE OF THE COMPANY, THE DEALER MANAGER, THE INFORMATION
AGENT OR THE DEPOSITARY MAKES ANY RECOMMENDATION IN CONNECTION
WITH THE OFFER.
THE OFFER HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION (THE
COMMISSION), NOR HAS THE COMMISSION PASSED
UPON THE FAIRNESS OR MERITS OF THE OFFER OR UPON THE ACCURACY OR
ADEQUACY OF THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS OFFER TO PURCHASE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Dealer Manager for the Offer is:
Morgan Stanley
March 24, 2011
IMPORTANT
Upon the terms and subject to the satisfaction or waiver of all
conditions set forth herein and in the Letter of Transmittal,
the Company will notify the Depositary, promptly after the
Expiration Time, of which Notes tendered are accepted for
payment pursuant to the Offer. If a Holder validly tenders its
Notes prior to the Expiration Time and does not validly withdraw
its Notes prior to the Expiration Time and the Company accepts
such Notes for payment, upon the terms and subject to the
conditions of the Offer, the Company will pay such Holder the
Purchase Price and Accrued Interest for such Notes on the
Payment Date.
Payment for the Notes will be made by the deposit of immediately
available funds by the Company with the Depositary, or, upon the
Depositarys instructions, with The Depository
Trust Company (DTC), promptly after the
Expiration Time, with payment expected to be made one business
day after the Expiration Time (the date of payment being
referred to herein as the Payment Date). The
Depositary
and/or DTC
will act as agent for the tendering Holders for the purpose of
receiving payments from the Company and transmitting such
payments to such Holders. See Acceptance for Payment and
Payment.
The Company expressly reserves the right, in its sole discretion
but subject to applicable law, to (i) waive any and all of
the conditions of the Offer, other than those dependent upon the
receipt of necessary government approvals, prior to the
Expiration Time, (ii) extend the Expiration Time of the
Offer, (iii) amend the terms of the Offer or (iv) if
the conditions to the Offer are not satisfied, terminate the
Offer and not accept for payment any Notes tendered in the
Offer. Any extension, amendment or termination will be followed
as promptly as practicable by a public announcement thereof,
such announcement in the case of an extension to be issued no
later than 9:00 a.m., New York City time, on the next
business day after the last previously scheduled or announced
Expiration Time. The foregoing rights are in addition to the
Companys right to delay the acceptance for payment of
Notes tendered pursuant to the Offer, or the payment for Notes
accepted for payment, in order to permit any or all conditions
to the Offer to be satisfied or waived or to comply in whole or
in part with any applicable law, subject, in each case, however,
to
Rules 13e-4
and 14e-1
under the Securities Exchange Act of 1934, as amended (the
Exchange Act), which require that an offeror
pay the consideration offered or return the securities deposited
by or on behalf of the holders thereof promptly after the
termination or withdrawal of a tender offer.
In the event that the Offer is terminated, withdrawn or
otherwise lawfully not consummated, the Purchase Price will not
be paid or become payable to Holders who have validly tendered
their Notes pursuant to the Offer. In any such event, the Notes
previously tendered pursuant to the Offer will be promptly
returned to the tendering Holders.
From time to time after the tenth business day following the
Expiration Time or other date of termination of the Offer, the
Company or its affiliates may acquire any Notes that are not
tendered pursuant to the Offer through open market purchases,
privately negotiated transactions, tender offers, exchange
offers or otherwise, upon such terms and at such prices as the
Company may determine, which may be more or less than the price
to be paid pursuant to the Offer and could be for cash or other
consideration. There can be no assurance as to which, if any, of
these alternatives (or combinations thereof) the Company or its
affiliates will choose to pursue in the future.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
OFFER TO PURCHASE AND RELATED DOCUMENTS AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THE DELIVERY OF THIS OFFER TO PURCHASE
SHALL NOT, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS
CURRENT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH
INFORMATION. THE COMPANY DISCLAIMS ANY OBLIGATION TO UPDATE OR
REVISE ANY OF THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN TO THE EXTENT NOT OTHERWISE REQUIRED BY
APPLICABLE LAW.
i
THE OFFER IS NOT BEING MADE UNDER ANY CIRCUMSTANCES IN WHICH
THE OFFER WOULD BE UNLAWFUL. THIS OFFER TO PURCHASE DOES NOT
CONSTITUTE AN OFFER TO PURCHASE IN ANY JURISDICTION, DOMESTIC OR
FOREIGN, IN WHICH, OR TO OR FROM ANY PERSON TO OR FROM WHOM, IT
IS UNLAWFUL TO MAKE SUCH OFFER UNDER APPLICABLE SECURITIES OR
OTHER LAWS. IN THOSE JURISDICTIONS WHERE THE SECURITIES OR OTHER
LAWS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR
DEALER, THE OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF THE
COMPANY BY THE DEALER MANAGER OR ONE OR MORE REGISTERED BROKERS
OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY
DECISION IS MADE WITH RESPECT TO THE OFFER.
A beneficial owner of the Notes that are held of record by a
broker, dealer, commercial bank, trust company or other nominee
must instruct such broker, dealer, commercial bank, trust
company or other nominee to tender the Notes on the beneficial
owners behalf. DTC has authorized DTC Participants (as
defined below) that hold Notes on behalf of beneficial owners of
Notes through DTC to tender their Notes as if they were Holders.
The Depositary and DTC have confirmed that the Offer is eligible
for DTCs Automated Tender Offer Program
(ATOP). Accordingly, to effect such a tender
of Notes held in DTC, DTC Participants must tender their Notes
through ATOP and follow the procedures set forth in
Procedures for Tendering and Withdrawing Notes
Notes Held Through DTC. Holders desiring to tender their
Notes on the day when the Expiration Time occurs should be aware
that they must allow sufficient time for completion of the ATOP
procedures during normal business hours of DTC on such day.
Any Holder who desires to tender Notes and who holds physical
certificates evidencing such Notes must complete and sign a
Letter of Transmittal (or a manually signed facsimile thereof)
in accordance with the instructions therein, have the signature
thereon guaranteed (if required by Instruction 2 of the
Letter of Transmittal) and deliver such manually signed Letter
of Transmittal (or a manually signed facsimile thereof),
together with certificates evidencing such Notes being tendered
and any other required documents to the Depositary, at its
address set forth on the back cover of this Offer to Purchase
prior to the Expiration Time. As of the date hereof, all Notes
are held through DTC and therefore the procedures described in
the immediately preceding paragraph will apply unless physical
certificates evidencing Notes were issued following the date
hereof.
Tendering Holders will not be obligated to pay brokerage fees or
commissions or the fees and expenses of the Dealer Manager, the
Information Agent or the Depositary. See Dealer Manager;
Information Agent; Depositary.
There are no guaranteed delivery provisions provided for by the
Company in connection with the Offer under the terms of this
Offer to Purchase or any other related documents. Holders must
tender their Notes in accordance with the procedures set forth
herein and in the Letter of Transmittal and complete such
procedures prior to the Expiration Time in order to be eligible
to receive the Purchase Price.
ii
TABLE OF
CONTENTS
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iii
SUMMARY
TERM SHEET
The following summary is qualified in its entirety by
reference to, and should be read in connection with, the
information appearing elsewhere or incorporated by reference in
this Offer to Purchase. Each of the capitalized terms used in
this Summary and not defined herein has the meaning set forth
elsewhere in this Offer to Purchase.
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The Company |
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Sirius XM Radio Inc. |
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The Notes |
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31/4% Convertible
Notes due 2011 of the Company. |
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As of March 24, 2011, there was $97,831,000 aggregate
principal amount of Notes outstanding. |
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See Impact of the Offer on Rights of the Holders of the
Notes. |
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The Offer |
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In the Offer, the Company is offering to purchase, upon the
terms and subject to the conditions described herein and in the
Letter of Transmittal, any and all of the Notes validly tendered
and not validly withdrawn prior to the Expiration Time, for the
Purchase Price plus Accrued Interest. See The Offer. |
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Purpose of the Offer; Source and Amount of Funds |
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The purpose of the Offer is to purchase Notes in order to reduce
the amount of the Companys outstanding indebtedness and
the associated interest expense. The Company will fund purchases
pursuant to the Offer from available cash. See The
Offer Purpose of the Transaction and
The Offer Source and Amount of Funds. |
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Purchase Price; Accrued Interest |
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The Purchase Price offered is cash in an amount equal to
$1,007.50 per $1,000 principal amount of Notes purchased in the
Offer. If a Holder validly tenders and does not validly withdraw
its Notes prior to the Expiration Time and the Company accepts
such Notes for payment, upon the terms and subject to the
conditions of the Offer, the Company will pay such Holder the
Purchase Price plus Accrued Interest for such Notes on the
Payment Date. Interest on the Notes due on April 15, 2011 will
be paid on the due date to holders at the close of business on
April 1, 2011 pursuant to the terms of the Notes and the related
indenture. |
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Payment Date |
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The Payment Date for the Offer will be promptly after the
Expiration Time. It is expected that the Payment Date for the
Offer will be one business day after the Expiration Time. See
Acceptance for Payment and Payment. |
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Expiration Time |
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The Offer will expire at 12:00 midnight, New York City time, on
April 20, 2011, unless extended by the Company. See
The Offer Expiration Time; Extension;
Amendment; Termination. |
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Withdrawal Rights |
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Tendered Notes may be withdrawn by Holders at any time prior to
the Expiration Time. In addition, if not previously accepted for
payment, tendered Notes may be withdrawn after the date that is
40 business days after the commencement of the Offer. See
Procedures for Tendering and Withdrawing Notes
Withdrawal Rights. |
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Conditions to the Offer |
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Notwithstanding any other provision of the Offer, the
Companys obligation to accept for payment, and pay for,
any Notes validly |
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tendered and not validly withdrawn pursuant to the Offer is
conditioned on satisfaction of all the conditions applicable to
the Offer described herein. The Company expressly reserves the
right, in its sole discretion but subject to applicable law, to
(i) waive any and all of the conditions of the Offer, other
than those dependent upon the receipt of necessary government
approvals, prior to the Expiration Time, (ii) extend the
Expiration Time of the Offer, (iii) amend the terms of the
Offer or (iv) if the conditions to the Offer are not
satisfied, terminate the Offer and not accept for payment any
Notes tendered in the Offer. The Company also reserves the
right, in its sole discretion, to delay the acceptance for
payment for Notes tendered in the Offer, or to delay the payment
for Notes so accepted, in order to permit any or all conditions
of the Offer to be satisfied or waived or to comply in whole or
in part with any applicable law, subject in each case, however,
to
Rules 13e-4
and 14e-1 under the Exchange Act, which require that an offeror
pay the consideration offered or return the securities deposited
by or on behalf of the holders thereof promptly after the
termination or withdrawal of a tender offer. The Offer is not
conditioned upon the receipt of financing or the tender of any
minimum principal amount of Notes. See Conditions to the
Offer. |
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Procedures for Tendering and Withdrawing Notes |
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Any beneficial owner who holds Notes in book-entry form through
DTC (including those who hold through Clearstream Banking,
société anonyme
(Clearstream) or Euroclear Bank S.A./N.V.
(Euroclear) as DTC Participants) and who
desires that the Notes be tendered should request the beneficial
owners broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for the beneficial owner
prior to the Expiration Time. See Procedures for Tendering
and Withdrawing Notes Notes Held by Record
Holders. |
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Holders of Notes who are tendering by book-entry transfer to the
Depositarys account at DTC must execute the tender through
ATOP. DTC Participants that are accepting the Offer must
transmit their acceptance to DTC, which will verify the
acceptance and execute a book-entry delivery to the
Depositarys account at DTC. DTC will then send an
Agents Message (as defined herein) to the Depositary for
its acceptance. Delivery of the Agents Message by DTC will
satisfy the terms of that Offer as to the tender of Notes. See
Procedures for Tendering and Withdrawing
Notes Notes Held Through DTC. |
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As of the date hereof, all Notes are held in book-entry form
through DTC and unless physical certificates are issued
following the date hereof, the tendering procedures for
book-entry holdings described above should be followed except
for Notes registered in the name of DTC or its nominees.
However, in the event that after the date hereof physical
certificates evidencing the Notes are issued to a Holder other
than DTC or its nominee, then any such Holder who desires to
tender Notes pursuant to the Offer and holds physical
certificates evidencing such Notes must complete and sign |
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the related Letter of Transmittal (or a manually signed
facsimile thereof) in accordance with the instructions set forth
therein, have the signature thereon guaranteed if required by
Instruction 2 of the Letter of Transmittal and deliver such
manually signed Letter of Transmittal (or such manually signed
facsimile), together with the certificates evidencing the Notes
being tendered and any other required documents, to the
Depositary prior to the Expiration Time. Beneficial owners of
Notes who hold their interests through a nominee or other person
are not the Holders of those Notes and, if they wish such Notes
to be tendered in the Offer, they must arrange for such nominee
or other person to effect the tender for them. |
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Untendered and/or Unpurchased Notes |
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Notes not tendered and/or accepted for payment pursuant to the
Offer will remain outstanding. Although the Company has no
obligation to do so, the Company may purchase the untendered
Notes in any lawful manner available to the Company at any time
after 10 business days following the Expiration Time. See
Additional Considerations Concerning the Offer. |
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Acceptance for Payment and Payment |
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Upon the terms and subject to the conditions set forth herein
and in the Letter of Transmittal, the Company will, promptly
after the Expiration Time, accept for payment any and all
outstanding Notes validly tendered and not validly withdrawn
prior to the Expiration Time. If a Holder validly tenders and
does not validly withdraw its Notes prior to the Expiration Time
and the Company accepts such Notes for payment, upon the terms
and subject to the conditions of the Offer, the Company will pay
the Purchase Price and Accrued Interest for such Notes on the
Payment Date. |
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Payments for Notes accepted for payment will be made on the
Payment Date by the deposit of immediately available funds by
the Company with the Depositary or, upon the Depositarys
instructions, DTC. The Depositary and/or DTC will act as agent
for the tendering Holders for the purpose of receiving payments
from the Company and transmitting such payments to such Holders.
Any Notes validly tendered and accepted for payment pursuant to
the Offer will be cancelled. Any Notes tendered but not accepted
for payment pursuant to the Offer will be returned to the
Holders promptly after the Expiration Time. See Acceptance
for Payment and Payment. |
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Material U.S. Federal Income Tax Consequences |
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For a discussion of material U.S. federal income tax
consequences relating to the Offer, see Material U.S.
Federal Income Tax Consequences. |
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Dealer Manager |
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Morgan Stanley & Co. Incorporated. |
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Information Agent |
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Global Bondholder Services Corporation. |
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Depositary |
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Global Bondholder Services Corporation. |
3
ABOUT THE
COMPANY
Sirius XM Radio Inc. broadcasts its music, sports, news, talk,
entertainment, traffic and weather channels in the United States
on a subscription fee basis through its two proprietary
satellite radio systems. Subscribers can also receive certain of
our music and other channels over the Internet, including
through applications for Apple, Blackberry and Android-powered
mobile devices.
As of December 31, 2010, the Company had 20,190,964
subscribers. The Companys subscriber totals include:
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subscribers under its regular and discounted pricing plans;
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subscribers that have prepaid, including payments either made or
due from automakers for prepaid subscriptions included in the
sale or lease price of a vehicle;
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certain radios activated for daily rental fleet programs;
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certain subscribers to its Internet services; and
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certain subscribers to its weather, traffic, data and Backseat
TV services.
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The Companys primary source of revenue is subscription
fees, with most of its customers subscribing on an annual,
semi-annual, quarterly or monthly basis. The Company offers
discounts for prepaid and long-term subscription plans as well
as discounts for multiple subscriptions on each platform. The
Company also derives revenue from activation and other fees, the
sale of advertising on select non-music channels, the direct
sale of satellite radios and accessories, and other ancillary
services, such as its weather, traffic, data and Backseat TV
services.
The Companys satellite radios are primarily distributed
through automakers (OEMs); retail locations
nationwide; and through the Companys website. The Company
has agreements with every major automaker to offer satellite
radios as factory or dealer-installed equipment in their
vehicles. Satellite radio services are also offered to customers
of certain rental car companies.
The Companys principal executive offices are located at
1221 Avenue of the Americas, 36th Floor, New York, New York
10020 and the telephone number for its principal executive
offices is
(212) 584-5100.
THE
OFFER
Introduction
The Company hereby offers, upon the terms and subject to the
conditions set forth in this Offer to Purchase and the Letter of
Transmittal, to purchase for cash any and all of the Notes that
are validly tendered and not validly withdrawn prior to the
Expiration Time for the Purchase Price of $1,007.50 per $1,000
principal amount of the Notes so purchased, plus Accrued
Interest on such Notes, if any.
Upon the terms and subject to the satisfaction or waiver of all
conditions, other than, in the case of any waiver, those
dependent upon the receipt of necessary government approvals,
set forth herein and in the Letter of Transmittal, the Company
will, promptly after the Expiration Time, accept for payment any
and all Notes validly tendered and not validly withdrawn prior
to such Expiration Time. If a Holder validly tenders its Notes
prior to the Expiration Time and does not validly withdraw its
Notes prior to the Expiration Time and the Company accepts such
Notes for payment, upon the terms and subject to the conditions
of the Offer, the Company will pay the Purchase Price plus
Accrued Interest for such Notes on the Payment Date.
Notes accepted for payment pursuant to the Offer will be
accepted only in principal amounts of $1,000 or an integral
multiple thereof.
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Purchase
Price; Accrued Interest
The Purchase Price for Notes accepted for payment will be paid
on the Payment Date, which will be promptly after the Expiration
Time. It is expected that the Payment Date will be one business
day after the Expiration Time. Such payments will be made by the
deposit of immediately available funds by the Company with the
Depositary or, upon its instructions, DTC. The Depositary
and/or DTC
will act as agent for the tendering Holders for the purpose of
receiving payments from the Company and transmitting such
payments to such Holders. See Acceptance for Payment and
Payment.
Tenders of Notes pursuant to the Offer may be validly withdrawn
at any time prior to the Expiration Time by following the
procedures described herein. In addition, if not previously
accepted for payment, tendered Notes may be withdrawn after the
date that is 40 business days after the commencement of the
Offer. If Holders validly withdraw previously tendered Notes,
such Holders will not receive the Purchase Price, unless such
Notes are validly retendered and not again validly withdrawn
prior to the Expiration Time (and the Company accepts the Notes
for payment, upon the terms and subject to the conditions of the
Offer).
Holders whose Notes are accepted for payment pursuant to the
Offer will be entitled to receive Accrued Interest on those
Notes. Interest on the Notes due on April 15, 2011 will be
paid on the due date to holders at the close of business on
April 1, 2011 pursuant to the terms of the Notes and the
related indenture. Under no circumstances will any additional
interest be payable because of any delay in the transmission of
funds to the Holders of purchased Notes.
Expiration
Time; Extension; Amendment; Termination
The term Expiration Time with respect to the
Offer means 12:00 midnight, New York City time, on
April 20, 2011 unless and until the Company shall, in its
sole discretion, have extended this period with respect to that
Offer, in which event the term Expiration
Time shall mean the new time and date as determined by
the Company. The Company may extend the Expiration Time for any
purpose, including to permit the satisfaction or waiver of all
conditions to the Offer or for any other reason. In order to
extend the Expiration Time, the Company will notify the
Depositary and will make a public announcement prior to
9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Time. Any such
announcement will state that the Company is extending the Offer
for a specified period or on a daily basis. Without limiting the
manner in which the Company may choose to make a public
announcement of any extension of the Offer, the Company will
not, unless required by law, have any obligation to publish,
advertise or otherwise communicate any such public announcement,
other than issuing a timely press release.
The Companys obligation to accept for payment, and pay
for, any Notes validly tendered and not validly withdrawn prior
to the Expiration Time is conditioned on satisfaction of all the
conditions of the Offer described herein. See Conditions
to the Offer.
The Company expressly reserves the right, in its sole discretion
but subject to applicable law, to (i) waive any and all of
the conditions of the Offer, other than those dependent upon the
receipt of necessary government approvals, prior to the
Expiration Time, (ii) extend the Expiration Time of the
Offer, (iii) amend the terms of the Offer or (iv) if
the conditions to the Offer are not satisfied, terminate the
Offer and not accept for payment any Notes tendered in the
Offer. Any extension, amendment or termination will be followed
as promptly as practicable by a public announcement thereof.
Without limiting the manner in which the Company may choose to
make such announcement, the Company shall not, unless required
by law, have any obligation to publish, advertise or otherwise
communicate any such announcement other than by issuing a press
release.
If the Company extends the Offer or delays its acceptance for
payment, or its payment, for any Notes tendered in the Offer for
any reason, then, without prejudice to the Companys rights
under that Offer, the Depositary may retain tendered Notes on
behalf of the Company. However, the ability of the Company to
delay acceptance for payment, or payment, for Notes that are
validly tendered and not withdrawn prior to the Expiration Time
is limited by
Rules 13e-4
and 14e-1(c)
under the Exchange Act, which require that an offeror
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pay the consideration offered or return the securities deposited
by or on behalf of Holders promptly after the termination or
withdrawal of a tender offer.
If the Company makes a material change in the terms and
conditions of the Offer or the information concerning the Offer,
the Company will disseminate additional offering materials and
extend that Offer to the extent required by law, including
Rule 13e-4
under the Exchange Act.
Purpose
of the Transaction
The purpose of the Offer is to repurchase Notes in order to
reduce the amount of the Companys outstanding indebtedness
and the associated interest expense. Any Notes we purchase in
the Offer will be cancelled.
Source
and Amount of Funds
We expect that we will need approximately $98.6 million to
purchase the Notes pursuant to the Offer (not including Accrued
Interest and expenses related to the Offer), assuming all
outstanding Notes are validly tendered and accepted for payment
and the Payment Date is April 21, 2011. The Company intends
to fund its purchases of Notes in the Offer from its available
cash.
PROCEDURES
FOR TENDERING AND WITHDRAWING NOTES
The tender of Notes pursuant to the Offer and in accordance with
the procedures described below will constitute a valid tender of
Notes. If a Holder validly tenders its Notes prior to the
Expiration Time and does not validly withdraw its Notes prior to
the Expiration Time and the Company accepts such Notes for
payment, upon the terms and subject to the conditions of the
Offer, the Company will pay such Holder the Purchase Price plus
Accrued Interest for such Notes on the Payment Date. Any Notes
tendered and validly withdrawn prior to the Expiration Time will
be deemed not to have been validly tendered.
Tendering
Notes
The tender of Notes pursuant to any of the procedures described
in this Offer to Purchase and set forth in the Letter of
Transmittal will constitute a binding agreement between the
tendering Holder and the Company upon the terms and subject to
the conditions of the Offer. Such agreement will be governed by,
and construed in accordance with, the laws of the State of New
York. The valid tender of Notes will constitute the agreement of
the Holder to deliver good and marketable title to all tendered
Notes, free and clear of all liens, charges, claims,
encumbrances, interests and restrictions of any kind.
UNLESS THE NOTES BEING TENDERED ARE DEPOSITED BY THE
HOLDER WITH THE DEPOSITARY PRIOR TO THE EXPIRATION TIME
(ACCOMPANIED, TO THE EXTENT NECESSARY, BY A PROPERLY COMPLETED
AND DULY EXECUTED LETTER OF TRANSMITTAL), THE COMPANY MAY, AT
ITS OPTION, REJECT SUCH TENDER. PAYMENT FOR NOTES WILL BE
MADE ONLY AGAINST DEPOSIT OF VALIDLY TENDERED NOTES AND
DELIVERY OF ANY REQUIRED DOCUMENTS.
Only registered Holders of Notes are authorized to tender
certificated Notes pursuant to the Offer.
To properly tender Notes or cause Notes to be tendered, the
following procedures must be followed:
Notes
Held Through DTC
With regard to Notes held in book-entry form through DTC, DTC or
its nominee is the sole registered owner and thus
the sole Holder of those Notes. Beneficial owners of
Notes held through a participant (a DTC
Participant) of DTC (i.e., a custodian bank,
depositary, broker, dealer, trust company or other nominee) are
not Holders of the Notes, and any such beneficial owner that
wishes its Notes to be tendered in the Offer must instruct the
DTC Participant through which its Notes are held to cause its
Notes to be tendered and delivered to the Depositary in
accordance with DTCs ATOP procedures as described in this
Offer to Purchase. Beneficial owners and DTC Participants
desiring that Notes be tendered on the day on which the
6
Expiration Time is to occur should be aware that they must allow
sufficient time for completion of the ATOP procedures during
normal business hours of DTC on such day.
Clearstream and Euroclear are DTC Participants. Beneficial
owners who hold the Notes through Euroclear and Clearstream must
follow DTCs procedures for tender and delivery of the
Notes. Euroclear and Clearstream may not be open for business on
days when banks, brokers and other institutions are open for
business in the United States. For this reason, and because of
time-zone differences, investors who hold interests in the Notes
through these systems and wish to have the Notes tendered may
find that the transaction will not be effected when requested
and perhaps not until the next business day in Luxembourg or
Brussels, as applicable. Thus, those who hold interests through
Clearstream or Euroclear and wish to have Notes tendered prior
to the Expiration Time must take into consideration differences
in business days and time-zones so as to allow sufficient time
to have the tenders effected.
The Depositary and DTC have confirmed that the Offer is eligible
for ATOP. Pursuant to an authorization given by DTC to DTC
Participants, each DTC Participant that holds Notes through DTC
and chooses to accept the Offer must transmit its acceptance
through ATOP, and DTC will then edit and verify the acceptance,
execute a book-entry delivery to the Depositarys account
at DTC and send an Agents Message (as defined below) to
the Depositary for its acceptance. The Depositary will (promptly
after the date of this Offer to Purchase) establish accounts at
DTC for purposes of the Offer with respect to Notes held through
DTC, and any financial institution that is a DTC Participant may
make book-entry delivery of Notes into the Depositarys
account through ATOP. However, although delivery of the Notes
may be effected through book-entry transfer into the
Depositarys account through ATOP, an Agents Message
in connection with such book-entry transfer and any other
required documents must be, in any case, transmitted to and
received by the Depositary at its address set forth on the back
cover of this Offer to Purchase prior to the Expiration Time.
Delivery of documents to DTC, the Company or the Dealer Manager
does not constitute delivery to the Depositary. The confirmation
of a book-entry transfer into the Depositarys account at
DTC as described above is referred to herein as a
Book-Entry Confirmation.
The term Agents Message means a message
transmitted by DTC to, and received by, the Depositary and
forming a part of the Book-Entry Confirmation, which states that
DTC has received an express acknowledgment from each DTC
Participant tendering through ATOP that such DTC Participant has
received a Letter of Transmittal and agrees to be bound by the
terms of the Letter of Transmittal and that the Company may
enforce such agreement against such DTC Participant.
All Notes currently held through DTC have been issued in the
form of global notes registered in the name of Cede &
Co., DTCs nominee (the Global Notes).
At or as of the close of business on the second business day
after the Expiration Time, the aggregate principal amount of the
Global Notes will be reduced to represent the aggregate
principal amount of the Notes, if any, held through DTC and not
tendered pursuant to the Offer.
Notes
Held by Record Holders
As of the date hereof, all Notes are held in book-entry form
through DTC and unless physical certificates are issued
following the date hereof, the tendering procedures for
book-entry holdings described above should be followed except
for Notes registered in the name of DTC or its nominees.
However, in the event that after the date hereof physical
certificates evidencing the Notes are issued to a Holder other
than DTC or its nominee, then any such Holder of the Notes must
complete and sign the Letter of Transmittal, and deliver such
Letter of Transmittal and any other documents required by the
Letter of Transmittal, together with certificate(s) representing
all such tendered Notes, to the Depositary at its address set
forth on the back cover of this Offer to Purchase prior to the
Expiration Time.
BENEFICIAL OWNERS OF NOTES I.E., THOSE WHO HOLD
INTERESTS IN THE NOTES THROUGH A CUSTODIAN BANK,
DEPOSITARY, BROKER, DEALER, TRUST COMPANY OR OTHER NOMINEE
OR THROUGH DTC ARE NOT HOLDERS OF THEIR NOTES; ONLY
THE NOMINEES OF THOSE PERSONS (OR DTC) IN WHOSE NAME THE
NOTES ARE REGISTERED ON THE COMPANYS REGISTER OF
NOTES ARE THE HOLDERS OF THE NOTES AND MAY TENDER THE
NOTES IN THE OFFER.
7
All signatures on the Letter of Transmittal must be guaranteed
by a recognized participant in the Securities Transfer Agents
Medallion Program, the NYSE Medallion Signature Program or the
Stock Exchange Medallion Program (each, an Eligible
Institution); provided, however, that
signatures on the Letter of Transmittal need not be guaranteed
if such Notes are tendered for the account of an Eligible
Institution. See Instruction 2 of the Letter of
Transmittal. If a Letter of Transmittal or any Note is signed by
a trustee, executor, administrator, guardian, attorney-in-fact,
agent, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person must so
indicate when signing, and proper evidence satisfactory to the
Company of the authority of such person so to act must be
submitted.
Lost or
Missing Certificates
If a Holder desires to tender Notes pursuant to the Offer, but
the certificates representing such Notes have been mutilated,
lost, stolen or destroyed, such Holder should contact the
Depositary for further instructions at the address or telephone
number set forth on the back cover of this Offer to Purchase.
See Instruction 10 of the Letter of Transmittal.
Backup
U.S. Federal Income Tax Withholding
Under the backup withholding provisions of
U.S. federal income tax law, unless a beneficial owner, or
such beneficial owners assignee, satisfies the conditions
described in Instruction 8 of the Letter of Transmittal or
is otherwise exempt, the aggregate Purchase Price and Accrued
Interest may be subject to backup withholding at a rate of 28%.
To prevent backup withholding, each U.S. Holder (as defined
below in Material U.S. Federal Income Tax
Consequences) should complete and sign the Substitute
Form W-9
provided in the Letter of Transmittal. Each
Non-U.S. Holder
(as defined below in Material U.S. Federal Income Tax
Consequences) must submit the appropriate completed
Internal Revenue Service (IRS)
Form W-8
(generally
Form W-8BEN
for a
Non-U.S. Holder)
to avoid backup withholding. See Instruction 8 of the
Letter of Transmittal.
Effect of
Letter of Transmittal
Subject to, and effective upon, the acceptance for payment of,
and payment for, the Notes tendered thereby, by executing and
delivering a Letter of Transmittal a tendering Holder of Notes
(i) irrevocably sells, assigns and transfers to, or upon
the order of, the Company, all right, title and interest in and
to all the Notes tendered thereby; (ii) waives any and all
rights with respect to such Notes (including, without
limitation, any existing or past defaults and their consequences
in respect of such Notes and the indenture under which the Notes
were issued); (iii) releases and discharges the Company
from any and all claims such Holder may have now, or may have in
the future arising out of, or related to, such Notes, including,
without limitation, any claims that such Holder is entitled to
receive additional principal or interest payments with respect
to such Notes, to convert the Notes into shares of the
Companys common stock, par value $0.001 per share
(Common Stock), to participate in any
redemption of such Notes or be entitled to any of the benefits
under the indenture under which the Notes were issued; and
(iv) irrevocably constitutes and appoints the Depositary as
the true and lawful agent and attorney-in-fact of such Holder
with respect to any such tendered Notes (with full knowledge
that the Depositary also acts as the agent of the Company) with
respect to such Notes, with full power of substitution and
resubstitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest) to (a) deliver
certificates representing such Notes, or transfer ownership of
such Notes on the account books maintained by DTC, together, in
any such case, with all accompanying evidences of transfer and
authenticity, to the Company, (b) present such Notes for
transfer on the relevant security register, (c) receive all
benefits or otherwise exercise all rights of beneficial
ownership of such Notes (except that the Depositary will have no
rights to, or control over, funds from the Company, except as
agent for the tendering Holders, for the Purchase Price and
Accrued Interest for any tendered Notes that are purchased by
the Company) and (d) deliver to the Company the Letter of
Transmittal, all upon the terms and subject to the conditions of
the Offer.
8
Determination
of Validity
All questions as to the validity, form, eligibility (including
time of receipt) and acceptance for payment of Notes pursuant to
the procedures described in this Offer to Purchase and the
Letter of Transmittal and the form and validity of all documents
will be determined by the Company in its sole discretion. The
Company reserves the absolute right to reject any or all tenders
that are not in proper form or the acceptance of or payment for
which may, upon the advice of counsel for the Company, be
unlawful. The Company also reserves the absolute right to waive
any of the conditions of the Offer, other than those dependent
upon the receipt of necessary government approvals, and any
defect or irregularity in the tender of any particular Notes.
Any determination by the Company as to the validity, form,
eligibility and acceptance of Notes for payment, or any
interpretation by the Company as to the terms and conditions of
the Offer, is subject to applicable law and, if challenged by
Holders or otherwise, to the judgment of a court of competent
jurisdiction. The Company is not obligated and does not intend
to accept any alternative, conditional or contingent tenders.
Unless waived, any irregularities in connection with tenders
must be cured within such time as the Company shall determine.
None of the Company or any of its affiliates or assigns, the
Depositary, the Information Agent, the Dealer Manager or any
other person will be under any duty to give notification of any
defects or irregularities in such tenders or will incur any
liability to a Holder for failure to give such notification.
Tenders of Notes will not be deemed to have been made until such
irregularities have been cured or waived. Any Notes received by
the Depositary that are not properly tendered and as to which
the irregularities have not been cured or waived will be
returned by the Depositary to the tendering Holders, unless
otherwise provided in the Letter of Transmittal, as promptly as
practical following the Expiration Time.
LETTERS OF TRANSMITTAL AND NOTES MUST BE SENT ONLY TO
THE DEPOSITARY. DO NOT SEND LETTERS OF TRANSMITTAL OR
NOTES TO THE COMPANY, THE DEALER MANAGER OR THE INFORMATION
AGENT.
THE METHOD OF DELIVERY OF NOTES AND LETTERS OF
TRANSMITTAL, ANY REQUIRED SIGNATURE GUARANTEES AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC AND ANY
ACCEPTANCE THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE
PERSONS TENDERING AND DELIVERING LETTERS OF TRANSMITTAL AND,
EXCEPT AS OTHERWISE PROVIDED IN THE LETTER OF TRANSMITTAL,
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY. IF DELIVERY IS BY MAIL, IT IS SUGGESTED THAT THE
HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN ADVANCE
OF THE EXPIRATION TIME TO PERMIT DELIVERY TO THE DEPOSITARY
PRIOR TO THE EXPIRATION TIME.
IF YOU HOLD YOUR NOTES THROUGH A CUSTODIAN BANK,
DEPOSITARY, BROKER, DEALER, TRUST COMPANY OR OTHER NOMINEE,
YOU SHOULD KEEP IN MIND THAT SUCH ENTITY MAY REQUIRE YOU TO TAKE
ACTION WITH RESPECT TO THE OFFER A NUMBER OF DAYS BEFORE THE
EXPIRATION TIME IN ORDER FOR SUCH ENTITY TO TENDER NOTES ON
YOUR BEHALF ON OR PRIOR TO SUCH EXPIRATION TIME. TENDERS NOT
COMPLETED BY THE DEPOSITARY PRIOR TO THE EXPIRATION TIME WILL BE
DISREGARDED AND OF NO EFFECT.
No
Appraisal Rights
No appraisal rights are available to holders of Notes under
applicable law in connection with the Offer.
No
Guaranteed Delivery
There are no guaranteed delivery provisions provided for by the
Company in connection with the Offer under the terms of this
Offer to Purchase or any other related documents. Holders must
tender their Notes in accordance with the procedures set forth
above and complete such procedures prior to the Expiration Time
in order to be eligible to receive the Purchase Price.
9
Withdrawal
of Tenders by Holders
Except as otherwise provided herein, tenders of Notes pursuant
to the Offer are irrevocable. Withdrawal of Notes by Holders may
only be accomplished in accordance with the following procedures.
Holders may withdraw Notes tendered in the Offer at any time
prior to the Expiration Time. Thereafter, such tenders may be
withdrawn after the 40th business day following the
commencement of the Offer, in accordance with
Rule 13e-4(f)
of the Exchange Act, unless such Notes have been accepted for
payment as provided in this Offer to Purchase. If the Company
extends the Offer, is delayed in its acceptance for payment of
Notes or is unable to purchase Notes validly tendered under the
Offer for any reason, then, without prejudice to the
Companys rights under that Offer, the Depositary may
nevertheless, on the Companys behalf, retain tendered
Notes, and such Notes may not be withdrawn except to the extent
that the Holder is entitled to withdrawal rights described
herein.
For a withdrawal of a tender of Notes to be effective, a written
or facsimile transmission notice of withdrawal must be received
by the Depositary prior to the Expiration Time, by mail, or hand
delivery or by a properly transmitted Request
Message through ATOP.
Any such notice of withdrawal must (i) specify the name of
the person who tendered the Notes to be withdrawn and the name
in which those Notes are registered (or, if tendered by a
book-entry transfer, the name of the participant in DTC whose
name appears on the security position listing as the owner of
such Notes), if different from that of the person who deposited
the Notes, (ii) contain the description of the Notes to be
withdrawn, the certificate number or numbers of such Notes,
unless such Notes were tendered by book-entry delivery, and the
aggregate principal amount represented by such Notes,
(iii) unless transmitted through ATOP, be signed by the
Holder thereof in the same manner as the original signature on
such Holders Letter of Transmittal, including any required
signature guarantee(s), or be accompanied by documents of
transfer sufficient to have the Note trustee register the
transfer of the Notes into the name of the person withdrawing
such Notes and (iv) if a Letter of Transmittal in relation
to the Notes to be withdrawn was executed by a person other than
the registered Holder, be accompanied by a properly completed
irrevocable proxy that authorized such person to effect such
withdrawal on behalf of such Holder.
The Company will determine, in its sole discretion, all
questions as to the form and validity (including time of
receipt) of any notice of withdrawal. Any such determination is
subject to applicable law and, if challenged by Holders or
otherwise, to the judgment of a court of competent jurisdiction.
No withdrawal of Notes shall be deemed to have been validly made
until all defects and irregularities have been cured or waived.
None of the Company or any of its affiliates or assigns, the
Depositary, the Information Agent, the Dealer Manager or any
other person will be under any duty to give notification of any
defects or irregularities in any notice of withdrawal or incur
any liability for failure to give such notification. Withdrawals
of tenders of Notes may not be rescinded, and any Notes validly
withdrawn will be deemed not to have been validly tendered for
purposes of the Offer. However, Holders may retender withdrawn
Notes by following one of the procedures for tendering Notes
described herein at any time prior to the Expiration Time.
ACCEPTANCE
FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions set forth herein
and in the Letter of Transmittal, the Company will, promptly
after the Expiration Time, accept for payment any and all
outstanding Notes validly tendered (or defectively tendered, if
such defect has been waived by the Company) and not validly
withdrawn pursuant to the Offer prior to Expiration Time. The
Payment Date will be promptly after the Expiration Time. The
Payment Date is expected to be one business day after the
Expiration Time. Any Notes so tendered and accepted for payment
pursuant to the Offer will be cancelled.
The Company, at its option, may elect to extend an Expiration
Time with respect to the Offer to a later date and time
announced by the Company, provided that public announcement of
that extension will be made not later than 9:00 a.m., New
York City time, on the next business day after the last
previously scheduled or announced Expiration Time.
10
The Company expressly reserves the right, in its sole
discretion, to terminate the Offer and not accept for payment
any Notes tendered in the Offer if any of the conditions set
forth under Conditions to the Offer shall not have
been satisfied or waived by the Company or in order to comply in
whole or in part with any applicable law. In addition, the
Company expressly reserves the right, in its sole discretion, to
delay acceptance for payment, or payment, for Notes tendered in
the Offer in order to permit any or all of those conditions to
be satisfied or waived or to comply in whole or in part with any
applicable law, subject in each case, however, to
Rules 13e-4
and 14e-1(c)
under the Exchange Act (which require that an offeror pay the
consideration offered or return the securities deposited by or
on behalf of the holders thereof promptly after the termination
or withdrawal of a tender offer). In all cases, payment for
Notes accepted for payment pursuant to the Offer will be made
only after timely receipt by the Depositary of certificates
representing such Notes (or confirmation of book-entry transfer
of such Notes), a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof or
satisfaction of DTCs ATOP procedures) on or before the
Expiration Time, and any other documents required thereby.
Upon the terms and subject to the conditions set forth herein
and in the Letter of Transmittal, after the Expiration Time, the
Company will be deemed to have accepted for payment, and thereby
purchased, all Notes validly tendered and not validly withdrawn
prior to such Expiration Time as, if and when the Company gives
written notice to the Depositary of its acceptance for payment
of such Notes. On the Payment Date, the Company will deposit
with the Depositary, or upon the Depositarys instructions,
DTC, in respect of, and the Depositary or DTC, as the case may
be, will thereafter transmit to the Holders of, Notes accepted
for payment, the Purchase Price and Accrued Interest.
If the Company extends the Offer or delays its acceptance for
payment, or payment, for Notes tendered in the Offer for any
reason, then, without prejudice to the Companys rights
under that Offer, the Depositary may retain tendered Notes on
behalf of the Company. However, the ability of the Company to
delay such acceptance or payment is limited by
Rules 13e-4
and 14e-1(c)
under the Exchange Act as described above.
The Company reserves the right to transfer or assign, in whole
or from time to time in part, to one or more of its affiliates,
the right to purchase all or any portion of the Notes tendered
pursuant to the Offer, but any such transfer or assignment will
not relieve the Company of its obligations under the Offer and
will in no way prejudice the rights of a tendering Holder to
receive payment for its Notes validly tendered and accepted for
payment pursuant to that Offer.
Holders whose Notes are accepted for payment pursuant to the
Offer will be entitled to any Accrued Interest on those Notes.
Interest on the Notes due on April 15, 2011 will be paid on
the due date to holders at the close of business on
April 1, 2011 pursuant to the terms of the Notes and the
related indenture. Under no circumstances will any additional
interest be payable because of any delay in the transmission of
funds to the Holders of purchased Notes.
Tendering Holders of Notes will not be required to pay brokerage
commissions or fees of the Dealer Manager, the Information Agent
or the Depositary.
If the Offer is terminated or the Notes are validly withdrawn
prior to the Expiration Time, or the Notes are not accepted for
payment, the Purchase Price will not be paid or become payable.
If any tendered Notes are not purchased pursuant to the Offer
for any reason, or certificates are submitted evidencing more
Notes than are tendered, such Notes not purchased will be
returned, without expense, to the tendering Holder (or, in the
case of Notes tendered by book-entry transfer, such Notes will
be credited to the account maintained at DTC from which such
Notes were delivered), unless otherwise requested by such Holder
as provided under Special Issuance/Delivery
Instructions in the Letter of Transmittal, promptly
following the Expiration Time or termination of the Offer.
CONDITIONS
TO THE OFFER
Notwithstanding any other provision of the Offer, the
Companys obligation to accept for payment, and pay for,
any Notes validly tendered and not validly withdrawn pursuant to
the Offer is conditioned on satisfaction of all the conditions
to the Offer.
11
All of the conditions will be deemed to be satisfied unless the
Company determines, in its reasonable judgment, that any of the
following events has occurred and that, regardless of the
circumstances giving rise to the event, such event makes it
inadvisable to proceed with the Offer or with acceptance for
payment or payment for the Notes in the Offer:
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in the Companys reasonable judgment, there has been
instituted or is pending any action, suit or proceeding by any
government or any governmental, regulatory, self-regulatory or
administrative authority, tribunal or other body, or by any
other person, domestic, foreign or supranational, before any
court, authority, tribunal or other body (or any such action,
suit or proceeding has been threatened in writing by any such
body or person) that directly or indirectly:
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challenges or seeks to make illegal, or seeks to delay,
restrict, prohibit or otherwise affect the consummation of the
Offer or the acquisition of some or all of the Notes pursuant to
the Offer; or
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could materially and adversely affect the business, condition
(financial or otherwise), income, operations, property or
prospects of the Company and its subsidiaries, taken as a whole,
or otherwise materially impair our ability to purchase some or
all of the Notes pursuant to the Offer;
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in the Companys reasonable judgment, any statute, rule,
regulation, judgment, order or injunction, including any
settlement or the withholding of any approval, has been invoked,
proposed, sought, promulgated, enacted, entered, amended,
enforced, interpreted or otherwise deemed to apply by any court,
government or governmental, regulatory, self-regulatory or
administrative authority, tribunal or other body, domestic,
foreign or supranational (or any such action has been threatened
in writing by any such body), in any manner that directly or
indirectly:
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could make the acceptance for payment, or payment, for some or
all of the Notes illegal or otherwise delay, restrict, prohibit
or otherwise affect the consummation of the Offer;
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could delay or restrict our ability, or render us unable, to
accept for payment or pay for some or all of the Notes to be
purchased pursuant to the Offer; or
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could materially and adversely affect the business, condition
(financial or otherwise), income, operations, property or
prospects of the Company or its subsidiaries, taken as a whole;
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in the Companys reasonable judgment, there has occurred
any of the following:
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any general suspension of trading in, or limitation on prices
for, securities on any United States national securities
exchange or in the
over-the-counter
market;
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the declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States, whether or
not mandatory;
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the commencement of any war, armed hostilities or other
international or national calamity, including any act of
terrorism, on or after March 24, 2011;
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any material escalation of any war or armed hostilities which
had commenced before March 24, 2011;
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any limitation, whether or not mandatory, imposed by any
governmental, regulatory, self-regulatory or administrative
authority, tribunal or other body, or any other event, that
could materially affect the extension of credit by banks or
other lending institutions in the United States;
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any change or changes have occurred in the business, condition
(financial or otherwise), income, operations, property or
prospects of the Company or any of its subsidiaries that could
have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the benefits of the Offer
to the Company or there is an adverse change in the benefits of
the Offer to the Company; or
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in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening
thereof.
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12
The foregoing conditions are for the sole benefit of the Company
and may be asserted by the Company in its sole discretion,
regardless of the circumstances giving rise to any such
condition and, other than those dependent upon the receipt of
necessary government approval, may be waived by the Company in
whole or in part, at any time and from time to time, in the sole
discretion of the Company, whether or not any other condition of
the Offer is also waived, prior to the Expiration Time of the
Offer.
The Company expressly reserves the right, in its sole discretion
but subject to applicable law, to (i) waive any and all of
the conditions of the Offer, other than those dependent upon the
receipt of necessary government approvals, prior to the
Expiration Time, (ii) extend the Expiration Time of the
Offer, (iii) amend the terms of the Offer or (iv) if
the conditions to the Offer are not satisfied, terminate the
Offer and not accept for payment any Notes tendered in the
Offer. Any extension, amendment or termination will be followed
as promptly as practicable by a public announcement thereof,
such announcement in the case of an extension to be issued no
later than 9:00 a.m., New York City time, on the next
business day after the last previously scheduled or announced
Expiration Time. In the event that the Company extends the
Offer, the term Expiration Time with respect to such
extended Offer shall mean the time and date on which that Offer,
as so extended, shall expire. Without limiting the manner in
which the Company may choose to make such announcement, the
Company shall not, unless required by law, have any obligation
to publish, advertise or otherwise communicate any such
announcement other than by issuing a press release.
IMPACT OF
THE OFFER ON RIGHTS OF THE HOLDERS OF THE NOTES
The Company originally issued $230 million aggregate
principal amount of the Notes. As of March 24, 2011, there
was outstanding approximately $97,831,000 aggregate principal
amount of the Notes. If the Company accepts Notes for payment,
upon the terms and subject to the conditions of the Offer, the
Company will pay the Holders the Purchase Price plus any Accrued
Interest for all Notes purchased from them in the Offer, and
thereby such Holders will give up certain rights associated with
their ownership of such Notes. Below is a summary of certain
rights that such Holders will forgo if such Notes are purchased
in the Offer.
The summary below does not purport to describe all of the terms
of the Notes. Please refer to (i) the Indenture, dated as
of May 23, 2003 (the Indenture), between
the Company, as Issuer, and The Bank of New York, as Trustee,
filed as Exhibit 99.2 to the Companys Current Report
on
Form 8-K,
filed on May 30, 2003 (the 2003
8-K),
and (ii) the Third Supplemental Indenture dated
October 13, 2004 (the Supplemental
Indenture), between the Company, as Issuer, and The
Bank of New York, as Trustee, filed as Exhibit 4.1 to the
Companys Current Report on
Form 8-K,
filed on October 13, 2004 (the 2004
8-K).
Interest
Holders of Notes purchased in the Offer will forgo interest
accruing on the principal of the Notes at the rate of 3.25% per
annum from and after the Payment Date until the final interest
payment on October 15, 2011. Interest on the Notes due on
April 15, 2011 will be paid on the due date to holders at
the close of business on April 1, 2011 pursuant to the
terms of the Notes and the related indenture.
Conversion
Rights of Holders
Holders of Notes purchased in the Offer will forgo the right to
elect to convert those Notes into shares of the Companys
Common Stock, prior to the close of business on October 15,
2011. The initial and current conversion rate of the Notes are
188.6792 shares of Common Stock per $1,000 principal amount
of Notes (equivalent to an initial and current conversion price
of approximately $5.30 per share of Common Stock). The
conversion rate for the Notes is subject to adjustment in
certain events, including in connection with certain mergers,
asset sales or similar transactions involving the Company.
Right of
Holders to Receive Principal at Maturity
Holders of Notes purchased in the Offer will forgo the right to
receive payment of the full principal amount of those Notes on
the maturity date for the Notes. The Notes are scheduled to
mature on October 15,
13
2011. Payment of the principal amount of the Notes may be
required sooner in the event of acceleration upon certain events
of default.
Notes purchased in the Offer will be cancelled.
Right of
Holders to Require Repurchase by the Company upon a Fundamental
Change
Holders of Notes purchased in the Offer will forgo the right to
require the Company to repurchase all or a portion of those
Notes upon the occurrence of a fundamental change
involving the Company at any time prior to maturity, at a price
equal to 100% of the principal amount of the Notes to be
purchased plus accrued and unpaid interest, to, but excluding,
the purchase date. The Supplemental Indenture defines a
fundamental change to mean any transaction or event
(whether by means of an exchange offer, liquidation, tender
offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise) in connection with which 90% or
more of the Common Stock outstanding is exchanged for, converted
into, acquired for or constitutes solely the right to receive,
consideration, less than 90% of which is common stock that:
(a) is listed on, or immediately after the transaction or
event will be listed on, a United States national securities
exchange; or (b) is approved, or immediately after the
transaction or event will be approved, for quotation on the
Nasdaq National Market or any similar United States system of
automated dissemination of quotations of securities prices.
ADDITIONAL
CONSIDERATIONS CONCERNING THE OFFER
The following considerations, in addition to the other
information described elsewhere herein or incorporated by
reference herein, should be carefully considered by each Holder
and owner of Notes before deciding whether the Notes should be
tendered in the Offer. See Where You Can Find Additional
Information and Incorporation of Certain Documents
by Reference.
Position
of the Company Concerning the Offer
Neither the Company nor the Companys board of directors,
nor the Dealer Manager, Depositary or Information Agent makes
any recommendation to any Holder or owner of Notes as to whether
the Holder should tender or refrain from tendering any or all of
such Holders Notes, and none of them has authorized any
person to make any such recommendation. Holders and owners are
urged to evaluate carefully all information in this Offer to
Purchase, consult their own investment and tax advisors and make
their own decisions whether to tender Notes, and, if so, the
principal amount of Notes to tender.
Tax
Treatment of Notes Purchased in the Offer
The receipt of the Purchase Price in exchange for the Notes will
be a taxable transaction to U.S. Holders (as defined
below). A U.S. Holder generally will recognize gain or loss
in an amount equal to the difference between (i) the gross
amount of the Purchase Price, other than Accrued Interest, paid
to the U.S. Holder in respect of its tendered Notes and
(ii) the U.S. Holders adjusted tax basis in its
tendered Notes. Accrued Interest generally will be treated as
ordinary income to the extent not previously included in income.
Gain realized by a
Non-U.S. Holder
on the receipt of cash for Notes generally will not be subject
to U.S. federal income or withholding tax, except in
certain circumstances as discussed in more detail below. Please
see Material U.S. Federal Income Tax
Consequences for a more detailed discussion.
Limited
Trading Market for Notes Not Purchased in the Offer
The Notes are not listed on any national or regional securities
exchange or quoted on any automated quotation system. To our
knowledge, the Notes are traded infrequently in transactions
arranged through brokers, and reliable market quotations for the
Notes are not available. To the extent that Notes are tendered
and accepted for payment pursuant to the Offer, the trading
market for Notes that remain outstanding is likely to be more
limited. In addition, a debt security with a smaller outstanding
principal amount available for trading (a smaller
float) may command a lower price than would a
comparable debt security with a larger float. Thus, the market
price for Notes that are not tendered and accepted for payment
pursuant to the Offer
14
may be affected adversely to the extent that the Offer reduce
the float for such Notes. There is no assurance that an active
market in the Notes will exist or as to the prices at which the
Notes may trade after consummation of the Offer.
Substantial
Existing Indebtedness
The Company has substantial existing indebtedness. As of
December 31, 2010, the Company had an aggregate of
approximately $3.3 billion of total indebtedness. While the
Company will continue to have substantial indebtedness following
the consummation of the Offer, the aggregate amount of its
outstanding indebtedness with maturities in 2011 will be reduced
as a result of consummation of the Offer. The amount of the
Companys indebtedness and restrictions contained in its
other outstanding indebtedness may limit its ability to effect
future financings in the event the Company should deem it
necessary or desirable to raise additional capital. For
additional information about the Companys indebtedness,
capitalization and financial condition, see its Annual Report on
Form 10-K
for the year ended December 31, 2010 and the other
information incorporated by reference herein. See
Incorporation of Documents by Reference.
Treatment
of Notes Not Purchased in the Offer
Notes not tendered
and/or
accepted for payment in the Offer will remain outstanding
immediately following the completion of the Offer. The terms and
conditions governing the Notes, including the covenants and
other protective provisions contained in the Indenture and the
Supplemental Indenture, which govern the Notes, will remain
unchanged immediately following the completion of the Offer. No
amendment to the Indenture or the Supplemental Indenture is
being sought. From time to time after the tenth business day
following the Expiration Time or other date of termination of
the Offer, we or our affiliates may acquire Notes that remain
outstanding through open market purchases, privately negotiated
transactions, tender offers, exchange offers or otherwise, upon
such terms and at such prices as they may determine, which may
be more or less than the price to be paid pursuant to the Offer
and could be for cash or other consideration. There can be no
assurance as to which, if any, of these alternatives (or
combinations thereof) we or our subsidiaries will choose to
pursue in the future.
MARKET
INFORMATION ABOUT THE NOTES AND THE COMMON STOCK
There is no established reporting system or trading market for
trading in the Notes. To the extent that the Notes are traded,
prices of the Notes may fluctuate greatly depending on the
trading volume and the balance between buy and sell orders. To
our knowledge, the Notes are traded infrequently in transactions
arranged through brokers, and reliable market quotations for the
Notes are not available.
The Companys Common Stock is listed on The NASDAQ Global
Select Market under the symbol SIRI. The following
table sets forth, for the periods indicated, the high and low
sales prices per share of our Common Stock and closing sales
price on the final trading day of the relevant period, as
reported by The NASDAQ Global Select Market.
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Year Ended December 31, 2009
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High
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Low
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Closing
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First Quarter
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$
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0.42
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$
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0.05
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$
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0.35
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Second Quarter
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0.63
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0.30
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0.43
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Third Quarter
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0.78
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0.35
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0.64
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Fourth Quarter
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0.69
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0.51
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0.60
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Year Ended December 31, 2010
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High
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Low
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Closing
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First Quarter
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$
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1.18
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$
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0.61
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$
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0.87
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Second Quarter
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1.25
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0.84
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0.95
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Third Quarter
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1.20
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0.90
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1.20
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Fourth Quarter
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1.69
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1.18
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1.63
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Year Ended December 31, 2011
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High
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Low
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Closing
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First Quarter (through March 23, 2011)
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$
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1.88
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$
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1.49
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$
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1.67
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On March 23, 2011, the last reported sale price per share
of our Common Stock on The NASDAQ Global Select Market was $1.67
per share. There were 3,942,790,380 shares of our Common
Stock outstanding as of March 23, 2011.
HOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR OUR
COMMON STOCK AND, TO THE EXTENT AVAILABLE, THE NOTES, PRIOR TO
MAKING ANY DECISION WITH RESPECT TO THE OFFER.
MATERIAL
U.S. FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of the material United
States federal income tax consequences to a beneficial owner of
the Notes with respect to the Offer. This discussion is general
in nature and does not discuss all aspects of United States
federal income taxation that may be relevant to a particular
Holder in light of the Holders particular circumstances,
or to certain types of Holders subject to special treatment
under United States federal income tax laws (such as insurance
companies, tax-exempt organizations, regulated investment
companies, real estate investment trusts, U.S. Holders (as
defined below) that have a functional currency other
than the U.S. dollar, persons holding Notes as part of a
hedging, integrated, conversion or constructive sale transaction
or a straddle, financial institutions, brokers, dealers in
securities, commodities or currencies, traders that elect to
mark-to-market
their securities, United States expatriates or former long-term
residents of the United States, controlled foreign
corporations, passive foreign investment
companies, corporations that accumulate earnings to avoid
United States federal income tax or tax-qualified retirement
plans). In addition, the discussion does not consider the effect
of any alternative minimum taxes or foreign, state, local or
other tax laws, or any U.S. tax considerations (e.g.,
estate or gift tax) other than United States federal income tax
considerations that may be applicable to particular Holders.
Further, this summary assumes that Holders are beneficial owners
of the Notes and hold Notes as capital assets within
the meaning of Section 1221 of the Internal Revenue Code of
1986, as amended (the Code) (generally, property
held for investment).
This discussion does not consider the United States federal
income tax consequences of a sale of a Note held by a
partnership or an entity that is treated as a partnership for
United States federal income tax purposes. If a partnership
holds Notes, the tax treatment of a partner generally will
depend upon the status of the partner and the activities of the
partnership. A person or entity that is a partner of a
partnership tendering Notes is urged to consult its tax advisor.
This summary is based on the Code and applicable
U.S. Treasury regulations, rulings, administrative
pronouncements and judicial decisions thereunder as of the date
hereof, all of which are subject to change or differing
interpretations at any time with possible retroactive effect. As
used in this Offer to Purchase, a U.S. Holder
of a Note means a beneficial owner of a Note that is for United
States federal income tax purposes: (a) an individual who
is a citizen or resident of the United States, (b) a
corporation (or other entity treated as a corporation for United
States federal income tax purposes) created or organized in or
under the laws of the United States, any state of the United
States or the District of Columbia, (c) an estate the
income of which is subject to United States federal income
taxation regardless of its source, or (d) a trust that
either (i) is subject to the primary supervision of a court
within the United States and has one or more U.S. persons
with the authority to control all substantial decisions of the
trust or (ii) has a valid election in effect under
applicable U.S. Treasury regulations to be treated as a
U.S. person.
As used in this Offer to Purchase, a
Non-U.S. Holder
means a beneficial owner of a Note that is not a
U.S. Holder and not a partnership or entity treated as a
partnership for United States federal income tax purposes.
This summary does not discuss all aspects of United States
federal income taxation that may be relevant to particular
Holders in light of their particular circumstances. Holders are
urged to consult their tax advisors as to the particular tax
consequences to them of the sale of Notes to us pursuant to the
Offer, including the effect of any federal, state, local,
foreign and other tax laws.
16
Tax
Considerations for U.S. Holders
Sale
of a Note
A sale of Notes by a U.S. Holder pursuant to the Offer will
be a taxable transaction to such U.S. Holder for United
States federal income tax purposes. A U.S. Holder generally
will recognize capital gain (subject to the market discount
rules discussed below) or loss on the sale of a Note in an
amount equal to the difference between (a) the amount of
cash received for such Note (other than the portion of such cash
that is properly allocable to accrued but unpaid interest, which
will be taxable as described below), and (b) the
U.S. Holders adjusted tax basis in such
Note at the time of sale. Generally, a U.S. Holders
adjusted tax basis in a Note will be equal to the amount paid
for the Note by such U.S. Holder increased by any market
discount previously included in income if such U.S. Holder
has elected to include market discount in gross income currently
as it accrues and decreased by any amortizable bond premium (as
described below) which the U.S. Holder has previously
elected to use to offset stated interest. Certain non-corporate
U.S. Holders (including individuals) generally are eligible
for preferential rates of United States federal income taxation
in respect of long-term capital gains (i.e., gain on a Note held
for more than one year). The deductibility of capital losses is
subject to limitations.
An exception to the capital gain treatment described above may
apply to a U.S. Holder that purchased a Note at a
market discount. Subject to a statutory de minimis
exception, in general, market discount is the excess of a
Notes stated redemption price at maturity over the
U.S. Holders tax basis in the Note immediately after
its acquisition by such U.S. Holder. In general, unless the
U.S. Holder has elected to include market discount in
income currently as it accrues, any gain realized by a
U.S. Holder on the sale of a Note having market discount in
excess of a de minimis amount will be treated as ordinary income
to the extent of the market discount that has accrued (on a
straight line basis or, at the election of the U.S. Holder,
on a constant yield basis) but has not yet been included in
income while such Note was held by the U.S. Holder. Gain in
excess of such accrued market discount will be subject to the
capital gains provisions described above.
In general, a U.S. Holder that purchased a Note for an
amount in excess of the Notes principal amount is
considered to have purchased such Note with amortizable
bond premium equal to such excess. A U.S. Holder that
elected to amortize such premium as an offset to its interest
income must reduce its tax basis in the Note by the amount of
premium used to offset income.
The amount of cash received in the Offer that is attributable to
accrued but unpaid interest on a Note will be taxable as
ordinary interest income to the extent not previously included
in gross income by the U.S. Holder.
U.S.
Holders That Do Not Tender Their Notes Pursuant to the
Offer
A U.S. Holder that does not tender its Notes in the Offer
or does not have its tender of Notes accepted for purchase
pursuant to the Offer generally will not recognize any gain or
loss as a result of the Offer.
Information
Reporting and Backup Withholding
In general, information reporting requirements apply to any
consideration (including accrued but unpaid interest) paid
pursuant to the Offer to U.S. Holders other than certain
exempt recipients. U.S. Holders may be subject to backup
withholding (currently at a rate of 28%) on payments received
with respect to the Notes unless such U.S. Holder
(a) falls within certain exempt categories and demonstrates
this fact when required, or (b) provides a correct
U.S. taxpayer identification number, certifies that such
U.S. Holder is exempt from backup withholding and otherwise
complies with applicable requirements of the backup withholding
rules. Each U.S. Holder may provide such Holders
correct taxpayer identification number and certify that such
U.S. Holder is not subject to backup withholding by
completing the Substitute
Form W-9
included in the Letter of Transmittal.
Backup withholding is not an additional tax. A U.S. Holder
subject to the backup withholding rules will be allowed a credit
equal to the amount withheld against such
U.S. Holders United States federal income tax
17
liability and, if withholding results in an overpayment of tax,
such U.S. Holder may be entitled to a refund, provided that
the requisite information is timely furnished to the IRS.
Tax
Considerations for
Non-U.S.
Holders
For purposes of the discussion below, any income or gain on the
sale of a Note pursuant to the Offer will be considered to be
U.S. trade or business income if such income or
gain is:
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effectively connected with the conduct of a
Non-U.S. Holders
U.S. trade or business; and
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if required by an applicable tax treaty with the United States,
attributable to a U.S. permanent establishment (or a fixed
base) maintained by the
Non-U.S. Holder
in the United States.
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Sale
of a Note
Any gain realized by a
Non-U.S. Holder
on the sale of a Note pursuant to the Offer will not be subject
to United States federal income tax, unless (i) such gain
is U.S. trade or business income, (ii) the
Non-U.S. Holder
is an individual who is present in the United States for
183 days or more in the taxable year in which the Offer is
closed and certain other conditions are met or (iii) the
Company is or has been a U.S. real property holding
company for United States federal income tax purposes. A
Non-U.S. Holder
who realizes U.S. trade or business income with respect to
the sale of a Note pursuant to the Offer generally will be taxed
in the same manner as a U.S. Holder (see
Tax Considerations for U.S. Holders
above), unless an applicable tax treaty provides otherwise. In
addition, a
Non-U.S. Holder
that is a foreign corporation may be subject to a branch profit
tax equal to 30% (or lower applicable tax treaty rate) of the
Non-U.S. Holders
effectively connected earnings and profits attributable to such
U.S. trade or business income, subject to adjustments. A
Non-U.S. Holder
who is an individual and is present (or anticipates being
present) in the United States for 183 days or more in the
taxable year in which such holder disposes of a Note pursuant to
the Offer is urged to consult its tax advisor. The Company
believes that it is not and has not been a U.S. real
property holding company for United States federal income
tax purposes.
Interest
The portion of the amount paid by us to a
Non-U.S. Holder
pursuant to the Offer that is properly allocable to accrued
interest will not be subject to the United States federal
withholding tax provided that:
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the accrued interest is not effectively connected with the
Non-U.S. Holders
conduct of a U.S. trade or business;
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the
Non-U.S. Holder
does not actually or constructively own 10% or more of the total
combined voting power of all classes of voting stock of the
Company within the meaning of Section 871(h)(3) of the Code
and applicable Treasury regulations;
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the
Non-U.S. Holder
is not a controlled foreign corporation that is related,
directly or indirectly, to the Company through stock ownership;
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the
Non-U.S. Holder
is not a bank whose receipt of interest on the Notes is
described in Section 881(c)(3)(A) of the Code; and
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either (a) the
Non-U.S. Holder
provides its name and address on an IRS
Form W-8BEN
(or other applicable form), and certifies under penalties of
perjury that it is not a United States person as defined under
the Code, or (b) the
Non-U.S. Holder
holds its Notes through certain foreign intermediaries and
certifies the certification requirements of applicable United
States Treasury regulations.
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If the
Non-U.S. Holder
cannot satisfy the requirements described above, the portion of
the amount paid by us pursuant to the Offer that is properly
allocable to accrued interest will be subject to the 30% United
States federal withholding tax, unless the
Non-U.S. Holder
provides us with a properly executed:
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IRS
Form W-8BEN
(or other applicable form) claiming an exemption from or
reduction in withholding under the benefit of an applicable
income tax treaty; or
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18
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IRS
Form W-8ECI
(or other applicable form) certifying that interest paid on the
Notes is not subject to withholding tax because it is
U.S. trade or business income (as discussed in further
detail below).
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If the portion of the proceeds received by a
Non-U.S. Holder
that is properly allocable to accrued interest is
U.S. trade or business income, the
Non-U.S. Holder
will not be subject to the 30% United States federal withholding
tax on such interest if it provides us with a properly executed
IRS
Form W-8ECI,
as discussed above. Instead, the
Non-U.S. Holder
will generally be taxed in the same manner as a U.S. Holder
(see Tax Considerations for
U.S. Holders above). In addition, a
Non-U.S. Holder
that is a corporation may be subject to an additional branch
profits tax at a rate of 30% (or lower applicable treaty rate)
of such holders effectively connected earnings and profits
attributable to such interest income.
Non-U.S.
Holders That Do Not Tender Their Notes Pursuant to the
Offer
A
Non-U.S. Holder
that does not tender its Notes in the Offer or does not have its
tender of Notes accepted for purchase pursuant to the Offer
generally will not recognize any gain or loss as a result of the
Offer.
Information
Reporting and Backup Withholding
Information returns will be filed with the IRS in connection
with the payment of accrued interest on the Notes. The payment
of the gross proceeds from the sale of a Note pursuant to the
Offer will be subject to information reporting and possibly to
backup withholding (currently at a rate of 28%) unless the Non-
U.S. Holder certifies as to its
non-U.S. person
status under penalties of perjury on IRS
Form W-8BEN
(which the Depositary will provide upon request) or otherwise
establishes an exemption, provided that neither we nor our
paying agent has actual knowledge or reason to know that the
Non-U.S. Holder
is a U.S. person or that the conditions of any other
exemption are not, in fact, satisfied.
Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules may be refunded or
credited against the
Non-U.S. Holders
United States federal income tax liability, provided that the
required information is timely provided to the IRS.
DEALER
MANAGER, INFORMATION AGENT AND DEPOSITARY
We have retained Morgan Stanley & Co. Incorporated
(Morgan Stanley) to act as the Dealer Manager
in connection with the Offer. In its role as Dealer Manager,
Morgan Stanley may contact brokers, dealers and similar entities
and may provide information regarding the Offer to those that it
contacts or persons that contact Morgan Stanley & Co.
Incorporated Morgan Stanley will receive customary compensation
for its services. We also have agreed to reimburse Morgan
Stanley for reasonable
out-of-pocket
expenses incurred in connection with the Offer, including
reasonable fees and expenses of counsel, and to indemnify it
against certain liabilities in connection with the Offer,
including certain liabilities under the federal securities laws.
Morgan Stanley and its affiliates have provided investment
banking and commercial services to the Company in the past for
which it has received customary compensation. Morgan Stanley or
its affiliates may, from time to time, engage in transactions
with and perform services for the Company in the ordinary course
of business.
Morgan Stanley and its affiliates may continue to provide
various investment and commercial banking services to the
Company in the future, for which we would expect it would
receive customary compensation from the Company. In the ordinary
course of its business, including in its trading and brokerage
operations and in a fiduciary capacity, the Dealer Manager and
its affiliates may hold positions, both long and short, for its
own account and for those of its customers, in our securities.
Morgan Stanley and its affiliates may from time to time hold
Notes and our Common Stock in its proprietary accounts, and, to
the extent it owns Notes in these accounts at the time of the
Offer, it may tender these Notes.
Global Bondholder Services Corporation has been appointed the
Information Agent for the Offer. We will pay the Information
Agent customary fees for its services and reimburse the
Information Agent for its
19
reasonable
out-of-pocket
expenses in connection therewith. We have also agreed to
indemnify the Information Agent for certain liabilities under
U.S. federal or state law or otherwise caused by, relating
to or arising out of the Offer. Requests for additional copies
of documentation may be directed to the Information Agent at the
address and telephone numbers set forth on the back cover of
this Offer to Purchase.
Global Bondholder Services Corporation has also been appointed
the Depositary for the Offer. We will pay the Depositary
customary fees for its services and reimburse the Depositary for
its reasonable
out-of-pocket
expenses in connection therewith. We have also agreed to
indemnify the Depositary for certain liabilities under
U.S. federal or state law or otherwise caused by, relating
to or arising out of any Offer. All deliveries and
correspondence sent to the Depositary should be directed to the
address set forth on the back cover of this Offer to Purchase.
SOLICITATION
AND EXPENSES
In connection with the Offer, the Companys directors and
officers and its respective affiliates may solicit tenders by
use of the mails, personally or by telephone, facsimile,
telegram, electronic communication or other similar methods. The
Company may, if requested, pay brokerage houses and other
custodians, nominees and fiduciaries the customary handling and
mailing expenses incurred by them in forwarding copies of this
Offer to Purchase and related documents to the beneficial owners
of the Notes and in handling or forwarding tenders of Notes by
their customers.
We will not pay any fees or commissions to brokers, dealers or
other persons (other than fees to the Dealer Manager and the
Information Agent as described above) for soliciting tenders of
Notes pursuant to the Offer. Holders and owners holding Notes
through banks, brokers, dealers, trust companies or other
nominees are urged to consult them to determine whether
transaction costs may apply if they tender the Notes through
banks, brokers, dealers, trust companies or other nominees and
not directly to the Depositary. We will, however, upon request,
reimburse banks, brokers, dealers, trust companies or other
nominees for customary mailing and handling expenses incurred by
them in forwarding the Offer to Purchase and related materials
to the beneficial owners of the Notes held by them as a nominee
or in a fiduciary capacity. No bank, broker, dealer, trust
company or other nominees has been authorized to act as our
agent or the agent of the Dealer Manager, the Information Agent
or the Depositary for purposes of the Offer. None of the Dealer
Manager, the Information Agent or the Depositary assumes any
responsibility for the accuracy or completeness of the
information concerning the Company, or incorporated by reference
in this Offer to Purchase or for any failure by the Company to
disclose events that may have occurred which may affect the
significance or accuracy of such information.
Tendering Holders will not be obligated to pay brokerage fees or
commissions to or the fees and expenses of the Dealer Manager,
the Information Agent or the Depositary.
MISCELLANEOUS
Securities
Ownership
Neither the Company nor any of its subsidiaries beneficially own
any Notes. In addition, based on the Companys records and
on information provided to it by the Companys directors
and executive officers, to the Companys knowledge, none of
the directors or executive officers beneficially owns any Notes.
Recent
Securities Transactions
Except as set forth below, neither the Company nor any of its
subsidiaries have effected any transactions involving the Notes
during the 60 days prior to the date of this Offer to
Purchase. In addition, based on the Companys records and
on information provided to it by the Companys directors
and executive officers, to the Companys knowledge, none of
the directors or executive officers has effected any
transactions involving the Notes during the 60 days prior
to the date of this Offer to Purchase.
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On January 31, 2011, the Company made a privately
negotiated purchase of $5,000,000 aggregate principal amount of
the Notes, at a purchase price of $5,085,798, including accrued
interest. On February 4, 2011, the Company made a privately
negotiated purchase of $30,075,000 aggregate principal amount of
the Notes, at a purchase price of $30,634,102, including accrued
interest. On February 7, 2011, the Company made a privately
negotiated purchase of $6,185,000 aggregate principal amount of
the Notes, at a purchase price of $6,303,330, including accrued
interest. On February 8, 2011, the Company made a privately
negotiated purchase of $52,888,000 aggregate principal amount of
the Notes, at a purchase price of $53,937,679, including accrued
interest.
Company
Board of Directors
Liberty Radio LLC as the holder of our convertible perpetual
preferred stock,
series B-1,
is entitled to designate and elect a number of members of our
board directors proportional to its interest in the Company.
Liberty Radio LLC previously appointed John C. Malone, Greg B.
Maffei and David Flowers to our board of directors. We expect
that Liberty Radio LLC may appoint up to two additional
independent directors.
Other
Material Information
We are not aware of any jurisdiction where the making of the
Offer is not in compliance with applicable law. If we become
aware of any jurisdiction where the making of the Offer or the
acceptance of Notes pursuant thereto is not in compliance with
applicable law, we will make a good faith effort to comply with
the applicable law. If, after such good faith effort, we cannot
comply with the applicable law, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) the Holders
of Notes in such jurisdiction. In any jurisdiction where the
securities, blue sky or other laws require the Offer to be made
by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of us by the Dealer Manager or one or more
registered brokers or dealers licensed under the laws of that
jurisdiction.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We are required to file annual, quarterly and current reports,
proxy statements and other information with the Commission. You
may read and copy any documents filed by us at the
Commissions public reference room at
100 F Street, N.E., Washington, D.C. 20549.
Please call the Commission at
1-800-SEC-0330
for further information on the public reference room. Our
filings with the Commission are also available to the public
through the Commissions Internet site at
http://www.sec.gov
and through The NASDAQ Global Select Market, on which the
Companys Common Stock is listed.
The Company has filed with the Commission a Tender Offer
Statement on Schedule TO (the
Schedule TO), pursuant to
Section 13(e) of the Exchange Act and
Rule 13e-4
promulgated thereunder, furnishing certain information with
respect to the Offer. The Schedule TO, together with any
exhibits or amendments thereto, may be examined and copies may
be obtained at the same places and in the same manner as set
forth above.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Offer to
Purchase the following documents that we have filed with the
Commission (together with any other documents that may be
incorporated herein by reference as provided herein, the
Incorporated Documents):
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Annual Report on
Form 10-K
for the year ended December 31, 2010; and
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Current Reports on
Form 8-K
filed on January 12, 2011 and February 15, 2011.
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We are not, however, incorporating any documents or information
that we are deemed to furnish and not file in accordance with
Commission rules. The information incorporated by reference into
this Offer to Purchase is considered to be a part of this Offer
to Purchase and should be read with the same care as the Offer
to Purchase. Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for the purpose of
this Offer to Purchase to the extent that a statement contained
herein modifies
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or supersedes such statement. Any such statement or statements
so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Offer to
Purchase. All information appearing in this Offer to Purchase is
qualified in its entirety by the information and financial
statements (including notes thereto) appearing in the
Incorporated Documents, except to the extent set forth in the
immediately preceding sentence. Statements contained in this
Offer to Purchase as to the contents of any contract or other
document referred to in this Offer to Purchase do not purport to
be complete and, where reference is made to the particular
provisions of such contract or other document, such provisions
are qualified in all respects by reference to all of the
provisions of such contract or other document. References herein
to the Offer to Purchase includes all Incorporated Documents as
incorporated herein, unless the context otherwise requires.
Certain sections of this Offer to Purchase are incorporated by
reference in, and constitute part of, the Schedule TO filed
by the Company with the Commission on March 24, 2011
pursuant to Section 13(e) of the Exchange Act and
Rule 13e-4
promulgated thereunder. The sections so incorporated are
identified in the Schedule TO.
The Company will provide without charge to each person to whom
this Offer to Purchase is delivered, upon written or oral
request, copies of any or all documents and reports described
above and incorporated by reference into this Offer to Purchase
(other than exhibits to such documents, unless such documents
are specifically incorporated by reference). Written or
telephone requests for such copies should be directed to the
Information Agent at the address and telephone numbers set forth
on the back cover of this Offer to Purchase.
FORWARD-LOOKING
STATEMENTS
Certain statements contained in this Offer to Purchase and the
Incorporated Documents constitute forward-looking statements.
Forward-looking statements are not guarantees of performance.
They represent our intentions, plans, expectations and beliefs
and are subject to numerous assumptions, risks and
uncertainties. Our future results, financial condition and
business may differ materially from those expressed in these
forward-looking statements. You can find many of these
statements by looking for words such as
approximates, believes,
expects, anticipates,
estimates, intends, plans,
would, may or other similar expressions
in this Offer to Purchase or the Incorporated Documents. Many of
the factors that will determine the outcome of these and our
other forward-looking statements are beyond our ability to
control or predict. For further discussion of factors that could
materially affect the outcome of our forward-looking statements
and our future results and financial condition, see
Item 1A. Risk Factors of our Annual Report on
Form 10-K
for the year ended December 31, 2010.
You are cautioned not to place undue reliance on our
forward-looking statements, which speak only as of the date of
this Offer to Purchase or the Incorporated Documents, as
applicable. All subsequent written and oral forward-looking
statements attributable to us or any person acting on our behalf
are expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. You should
review the factors and risks we describe in the reports we file
from time to time with the Commission. See Where You Can
Find Additional Information and Incorporation of
Certain Documents by Reference.
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The Depositary for the Offer is:
Global Bondholder Services
Corporation
By Regular, Registered or Certified Mail,
By Overnight Courier or By Hand
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By Facsimile
(For Eligible Institutions only)
(212) 430-3775
Attention: Corporate Actions
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65 Broadway, Suite 404
New York, New York 10006
Attention: Corporate Actions
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Banks and Brokers Call:
(212) 430-3774
All Others Call Toll Free:
(866) 470-3900
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Any questions or requests for assistance may be directed to the
Dealer Manager or the Information Agent at the addresses and
telephone numbers set forth below. Requests for additional
copies of this Offer to Purchase and the Letter of Transmittal
may be directed to the Information Agent. Requests for copies of
the Incorporated Documents may also be directed to the
Information Agent. Beneficial owners may also contact their
broker, dealer, commercial bank, trust company or other nominee
for assistance concerning the Offer.
The Information Agent for the Offer is:
Global Bondholder Services
Corporation
65 Broadway, Suite 404
New York, New York 10006
Banks and Brokers Call Collect:
(212) 430-3774
All Others Call Toll Free:
(866) 924-2200
The Dealer Manager for the Offer is:
Morgan Stanley
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Toll Free: (800) 624-1808
Collect: (212) 761-8663
Attention: Liability Management Group