As filed with the Securities and Exchange Commission on February 21, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIRIUS XM RADIO INC.
(Exact name of registrant as specified in its charter)
Delaware | 52-170027 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
1221 Avenue of the Americas, 36th Floor
New York, New York 10020
(212) 584-5100
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
SIRIUS XM RADIO 401(k) SAVINGS PLAN
(Full title of the Plan)
Patrick L. Donnelly
Executive Vice President, General Counsel and Secretary
Sirius XM Radio Inc.
1221 Avenue of the Americas
36th Floor
New York, New York 10020
(212) 584-5100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Gary L. Sellers
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if smaller reporting company) | Smaller reporting company | ¨ |
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Title of securities to be registered | Amount to be Registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price (2) |
Amount of registration fee | ||||
Common Stock, par value $0.001 per share |
2,000,000 | $2.15 | $4,300,000 | $492.78 | ||||
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(1) | This amount represents a 2,000,000 share increase in the number of shares of common stock authorized for issuance under the Sirius XM Radio 401(k) Savings Plan. In addition to the shares set forth in the table, pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement also covers an indeterminable number of shares of common stock that may be issued as a result of stock splits, stock dividends and anti-dilution provisions. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. |
(2) | Pursuant to Rule 457(c) and Rule 457(h) of the Securities Act, estimated solely for the purpose of calculating the registration fee based on the average of the high and low prices per share of the registrants common stock on February 16, 2012, as reported in the NASDAQ Global Select Market. |
INTRODUCTION
This Registration Statement on Form S-8 is filed by Sirius XM Radio Inc., a Delaware corporation (the Company), to register an additional 2,000,000 shares of the Companys common stock, par value of $0.001 per share and an indeterminate number of plan interests, issuable under the Sirius XM Radio 401(k) Savings Plan (the Plan). Pursuant to General Instruction E to Form S-8, the Company incorporates by reference into this Registration Statement the entire contents of its earlier Registration Statements on Form S-8, File Nos. 333-166699; 333-158156; 333-156441; 333-149186, 333-142726; 333-139214; 333-133277; 333-125118; 333-119479; 333-111221; 333-106020; 333-101515; 333-100083; 333-81914; 333-74752; 333-62818; 333-47954; 333-65473 and 333-169309 relating to the Plan, except that the provisions contained in Part II of such earlier registration statements are modified as set forth in this Registration Statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference |
The following documents filed by the Company and the Plan with the Securities and Exchange Commission (the Commission) are incorporated herein by reference:
1. | The Companys Annual Report on Form 10-K for the year ended December 31, 2011; |
2. | The Plans Annual Report on Form 11-K for the year ended December 31, 2010; and |
3. | The description of the Companys common stock contained in the Companys Registration Statement on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended. |
All other documents filed by the Company or the Plan with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 5. | Interests of Named Experts and Counsel |
Patrick L. Donnelly, Esq., whose legal opinion with respect to the securities registered hereunder is filed as Exhibit 5 hereto, is an employee of the Company and participates in the Plan and other benefit plans established by the Company.
Item 8. | Exhibits |
For a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference.
Concerning the compliance with the requirements of ERISA and an Internal Revenue determination letter that the plan is qualified under Section 401 of the Internal Revenue Code, the registrant has submitted the Plan and any amendment thereto to the IRS and has made or will make all changes required by the IRS to maintain the qualified status of the Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on February 21, 2012.
SIRIUS XM RADIO INC. | ||
By: | /s/ Patrick L. Donnelly | |
Patrick L. Donnelly | ||
Executive Vice President, | ||
General Counsel and Secretary |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Patrick L. Donnelly and Ruth A. Ziegler, and each of them, his or her true and lawful agent, proxy and attorney-in-fact, each acting alone with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, and (iii) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact, any of them or any of his, her or their substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
Signatures |
Title |
Date | ||
/s/ Mel Karmazin |
Chief Executive Officer | February 21, 2012 | ||
Mel Karmazin | (Principal Executive Officer) and Director | |||
/s/ David J. Frear |
Executive Vice President and | February 21, 2012 | ||
David J. Frear | Chief Financial Officer (Principal Financial Officer) |
|||
/s/ Thomas Barry |
Senior Vice President and | February 21, 2012 | ||
Thomas Barry | Corporate Controller (Principal Accounting Officer) |
Signatures |
Title |
Date | ||
/s/ Eddy W. Hartenstein |
Chairman of the Board of Directors | February 21, 2012 | ||
Eddy W. Hartenstein | ||||
/s/ Joan L. Amble |
Director | February 21, 2012 | ||
Joan L. Amble | ||||
/s/ Leon D. Black |
Director | February 21, 2012 | ||
Leon D. Black | ||||
/s/ David J. A. Flowers |
Director | February 21, 2012 | ||
David J.A. Flowers | ||||
/s/ Lawrence F. Gilberti |
Director | February 21, 2012 | ||
Lawrence F. Gilberti | ||||
/s/ James P. Holden |
Director | February 21, 2012 | ||
James P. Holden | ||||
/s/ Gregory B. Maffei |
Director | February 21, 2012 | ||
Gregory B. Maffei | ||||
/s/ John C. Malone |
Director | February 21, 2012 | ||
John C. Malone | ||||
/s/ James F. Mooney |
Director | February 21, 2012 | ||
James F. Mooney | ||||
/s/ Jack Shaw |
Director | February 21, 2012 | ||
Jack Shaw | ||||
/s/ Carl E. Vogel |
Director | February 21, 2012 | ||
Carl E. Vogel | ||||
/s/ Vanessa A. Wittman |
Director | February 21, 2012 | ||
Vanessa A. Wittman |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the trustees (or other persons who administer the employee benefits plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on February 21, 2012.
SIRIUS XM RADIO 401(K) SAVINGS PLAN | ||
By: | /s/ Patrick L. Donnelly | |
Patrick L. Donnelly | ||
Trustee |
INDEX TO EXHIBITS
Exhibit |
||
4.1 | Amended and Restated Certificate of Incorporation of the Company, dated March 4, 2003 (incorporated by reference to Exhibit 3.1 to the Companys Annual Report on Form 10-K for the year ended December 31, 2002). | |
4.2 | Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated July 28, 2008 (incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form 8-K dated August 1, 2008). | |
4.3 | Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated December 18, 2008 (incorporated by reference to Exhibit 3.3 to the Companys Registration Statement on Form S-3 dated December 30, 2008). | |
4.4 | Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated May 29, 2009 (incorporated by reference to Exhibit 4.4 to the Companys Registration Statement on Form S-8 dated July 1, 2009). | |
4.5 | Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.2 to the Companys Quarterly Report on Form 10-Q for the quarter ended September 30, 2001). | |
4.6 | Certificate of Amendment of the Amended and Restated By-laws of the Company, dated July 28, 2008 (incorporated by reference to Exhibit 3.2 to the Companys Current Report on Form 8-K dated August 1, 2008). | |
4.7 | Form of certificate for shares of Common Stock (incorporated by reference to Exhibit 4.3 to the Companys Registration Statement on Form S-1 (File No. 33-74782)). | |
4.8 | Sirius XM Radio 401(k) Savings Plan, as amended and restated effective January 1, 2009 (incorporated by reference to Exhibit 10.30 to the Companys Annual Report on Form 10-K for the year ended December 31, 2009). | |
5 | Opinion of Patrick L. Donnelly, Esq., Executive Vice President, General Counsel and Secretary of the Company.* | |
23.1 | Consent of Independent Registered Public Accounting Firm.* | |
23.2 | Consent of Patrick L. Donnelly, Esq., Executive Vice President, General Counsel and Secretary of the Company (included in Exhibit 5).* | |
24 | Power of Attorney (included as part of the signature pages to this Registration Statement).* |
* | Filed herewith. |
Exhibit 5
Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, NY 10020
February 21, 2012
Sirius XM Radio Inc.
1221 Avenue of the Americas
New York, NY 10020
Dear Sirs:
I am General Counsel of Sirius XM Radio Inc., a Delaware corporation (the Company). This letter is being delivered in connection with the Registration Statement on Form S-8 (the Registration Statement) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration by the Company of 2,000,000 shares of common stock, par value $0.001 per share (the Shares), which may be issued pursuant to the Sirius XM Radio 401(K) Savings Plan (the Plan).
I have examined the Registration Statement and the Plan. I also have examined originals or duplicates or certified or conformed copies of such records, agreements, documents and other instruments and have made such other investigations as I have deemed relevant and necessary in connection with the opinions expressed herein. In rendering the opinions below, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to the original documents of all documents submitted to me as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualification and limitations stated herein, I am of the opinion that the Shares to be issued by the Company pursuant to the Plan have been duly authorized and, upon their issuance and delivery in accordance with the Plan, will be validly issued, fully paid and non-assessable.
I do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing). I am not admitted to practice in the State of Delaware.
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours, |
/s/ Patrick L. Donnelly, Esq. |
Patrick L. Donnelly, Esq. |
Executive Vice President, |
General Counsel and Secretary |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Sirius XM Radio Inc.:
We consent to the incorporation by reference in the Registration Statement (Form S-8) of Sirius XM Radio Inc. (a) of our reports dated February 9, 2012, with respect to the consolidated balance sheets of Sirius XM Radio Inc. and subsidiaries (the Company) as of December 31, 2011 and 2010, and the related consolidated statements of operations, stockholders equity and comprehensive income (loss), and cash flows for each of the years in the three-year period ended December 31, 2011, and the related consolidated financial statement schedule, and the effectiveness of internal control over financial reporting as of December 31, 2011, which reports appear in the December 31, 2011 annual report on Form 10-K of Sirius XM Radio Inc. incorporated herein by reference and (b) of our report dated June 17, 2011, with respect to the statements of net assets available for benefits of the Sirius XM Radio 401(k) Savings Plan as of December 31, 2010 and 2009, the related statement of changes in net assets available for benefits for the year ended December 31, 2010, and the related supplemental Schedule H, line 4a schedule of delinquent participant contributions for the year ended December 31, 2010, Schedule H, line 4i schedule of assets (held at end of year) as of December 31, 2010 and Schedule H, line 4j schedule of reportable transactions for the year ended December 31, 2010, which report appears in the December 31, 2010 annual report on Form 11-K of the Sirius XM Radio 401(k) Savings Plan incorporated herein by reference.
/s/ KPMG LLP |
New York, NY |
February 21, 2012 |