-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CsE6wAOo32KLFLNtQNHBrWn7vFIFiP7VXBPVgQhMREhd08cQb9dySCnma2JQ0hav H4coJUEeLmjpe1CaBFCB7A== 0001193125-06-197302.txt : 20060926 0001193125-06-197302.hdr.sgml : 20060926 20060926171322 ACCESSION NUMBER: 0001193125-06-197302 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060926 DATE AS OF CHANGE: 20060926 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: XM SATELLITE RADIO HOLDINGS INC CENTRAL INDEX KEY: 0001091530 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 541878819 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-57011 FILM NUMBER: 061109380 BUSINESS ADDRESS: STREET 1: 1500 ECKINGTON PL NE CITY: WASHINGTON STATE: DC ZIP: 20002 BUSINESS PHONE: 2023804000 MAIL ADDRESS: STREET 1: 1500 ECKINGTON PL NE CITY: WASHINGTON STATE: DC ZIP: 20002 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN HONDA MOTOR CO INC CENTRAL INDEX KEY: 0001122185 IRS NUMBER: 952041006 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1919 TORRANCE BLVD. CITY: TORRANCE STATE: CA ZIP: 90501-2746 BUSINESS PHONE: 3107832275 SC 13D/A 1 dsc13da.htm SCHEDULE 13D AMENDMENT NO. 10 Schedule 13D Amendment No. 10

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D/A

 

Under the Securities Exchange Act of 1934

(Amendment No. 10)

 

 

 

XM Satellite Radio Holdings Inc.

(Name of Issuer)

 

Class A Common Stock, par value $.01 per share

(Title of Class of Securities)

 

983759-10-1

(CUSIP Number)

 

John D. Hardy, Jr., Esq.

O’Melveny & Myers LLP

400 South Hope Street

Los Angeles, California 90071

(213) 430-6000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

September 22, 2006

(Date of Event which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box  ¨.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

CUSIP NO. 983759-10-1    Schedule 13D    Page 2 of 8 Pages

 

  1  

NAME OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

    
   

            American Honda Motor Co., Inc. (“American Honda”)

 

    
  2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP  
  (a)  ¨  
    (b)  x    
  3   SEC USE ONLY  
         
  4   SOURCE OF FUNDS  
                WC    
  5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  
   

Item 2(d)  ¨

Item 2(e)  ¨

    
  6   CITIZENSHIP OR PLACE OF ORGANIZATION  
                California    
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH		     7  SOLE VOTING POWER
 
                  30,854,747
    8  SHARED VOTING POWER
 
                  0
    9  SOLE DISPOSITIVE POWER
 
                  30,854,747
  10  SHARED DISPOSITIVE POWER
 
                  0
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON    
                30,854,747    
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x
         
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)  
                10.7% (1)    
14   TYPE OF REPORTING PERSON  
                CO    
1. Calculated based on total outstanding shares of 288,827,848.

CUSIP NO. 983759-10-1    Schedule 13D    Page 3 of 8 Pages

This Amendment No. 10 to Schedule 13D amends or amends and restates, where indicated, the statement on Schedule 13D relating to the Class A Common Stock of the Issuer filed by American Honda with the Securities and Exchange Commission on August 22, 2000, as amended prior hereto (as so amended, the “Initial Schedule 13D”). Capitalized terms used in this Amendment No. 10 but not otherwise defined herein have the meanings given to them in the Initial Schedule 13D.

This Amendment No. 10 is being made to reflect that, as of September 22, 2006, American Honda entered into certain agreements with respect to securities of the Issuer. Except as otherwise set forth herein, this Amendment No. 10 does not modify any of the information previously reported by American Honda in the Initial Schedule 13D.

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 is hereby amended and restated in its entirety as follows:

Set forth below are descriptions of certain material provisions of agreements American Honda has entered into with respect to securities of the Issuer. These summary descriptions are qualified in their entirety by reference to the full text of the agreements, which are incorporated herein by reference and are filed as exhibits hereto.

Note Purchase Agreement

American Honda and certain other investors entered into a Note Purchase Agreement dated December 21, 2002 with the Issuer and XM Satellite Radio Inc. (“XM” and together with the Issuer, the “Obligors”) pursuant to which the investors purchased $210 million aggregate initial value of the 10% Convertible Notes of the Obligors. The holders may opt to convert the accreted value of their 10% Convertible Notes, in whole or in part, at any time or from time to time, into Class A Common Stock at $3.18 per share of Class A Common Stock. However, no holder may opt to convert its notes without obtaining any required prior approval of the Federal Communications Commission.

The Obligors may opt to convert all, but not less than all, of the 10% Convertible Notes into shares of Class A Common Stock at the conversion price at any time on or after January 28, 2007 if (i) shares of Class A Common Stock have traded at a price in excess of 200% of the conversion price then in effect for 30 trading days, (ii) the Issuer achieves break-even in earnings before interest, taxes, depreciation and amortization for the preceding quarter, (iii) following conversion, the aggregate indebtedness of the Issuer and its subsidiaries is less than $250 million and (iv) no shares of Series C Preferred Stock remain outstanding.

In the case of a merger, sale of all assets or recapitalization of the Class A Common Stock, holders of the 10% Convertible Notes will have the right to exchange their notes for the kind and proportionate amount of shares and other securities and property or cash receivable by holders of the Class A Common Stock in connection with the event.

Under the Note Purchase Agreement, American Honda and each other investor agreed that, so long as the investor owned at least $10 million in principal amount at maturity of

CUSIP NO. 983759-10-1    Schedule 13D    Page 4 of 8 Pages

the 10% Convertible Notes, it would not sell, contract to sell, grant any option to purchase, or make any short sale of Class A Common Stock, establish a “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act), or engage in any transaction the result of which would involve any of the foregoing, at a time when the investor has no equivalent offsetting long position in Class A Common Stock or preferred stock or indebtedness convertible into Class A Common Stock.

The parties amended the Note Purchase Agreement on January 16, 2003 to provide for additional investors. On June 16, 2003, the parties entered into an Amended and Restated Note Purchase Agreement, which removed certain restrictive covenants and required instead that XM comply with certain other restrictive covenants contained in the Indenture dated as of January 28, 2003 between XM, each of the guarantors named therein and The Bank of New York, as trustee, for the benefit of the holders of XM’s 14% Senior Secured Discount Notes due 2009.

Noteholders Agreement

American Honda entered into a Third Amended and Restated Shareholders and Noteholders Agreement dated June 16, 2003 among the Issuer and certain shareholders and noteholders (the “Noteholders Agreement”). The Noteholders Agreement provides for observation rights for American Honda (as well as for certain other investors) on the Issuer’s board, in the event that American Honda does not already have a director on the board. This observation right is conditioned on American Honda retaining at least 25% of its investment in the Issuer as of January 28, 2003. The Noteholders Agreement also provides for approval rights for the holders of the 10% Convertible Notes for certain fundamental actions of the Issuer and its subsidiaries, including, among other things, charter amendments, stock issuances, debt incurrences, asset sales, dissolution and affiliate transactions. We have been advised by the Issuer that, under the terms of the Noteholders Agreement, the foregoing restriction is no longer applicable. The Noteholders Agreement grants a right of first offer for certain parties, including American Honda, if the Issuer engages in a private sale of its capital stock in an amount of $25 million or more, to the extent necessary to maintain their pro rata fully-diluted ownership percentage.

The Noteholders Agreement imposes certain financial and operational restrictions on the Issuer, including prohibitions on: restricted payments, dividend and other payment restrictions affecting material subsidiaries, incurrence of indebtedness and issuance of preferred stock, asset sales, affiliate transactions, liens, sale and leaseback transactions, issuances and sales of equity in material subsidiaries, and mergers. We have been advised by the Issuer that, under the terms of the Noteholders Agreement, the foregoing restrictions are no longer applicable. The agreement also requires that, upon the occurrence of a change of control, the Obligors make an offer to the holders of the 10% Convertible Notes to repurchase all or any part of the notes at a purchase price of 101% of their accreted value, plus accrued and unpaid interest.

Registration Rights Agreement

American Honda entered into a Second Amended and Restated Registration Rights Agreement dated January 28, 2003 among the Issuer and certain shareholders and noteholders (the “Registration Rights Agreement”). The agreement provides for the following demand registrations for shares of Class A Common Stock, in each case provided that the request is made for at least $10 million of registerable shares:

 

  a. two (2) demand registrations, exercisable by holders of the Series C Preferred Stock claiming 20% of the Class A Common Stock issuable upon conversion of the entire aggregate outstanding principal amount of Series C Preferred Stock;

CUSIP NO. 983759-10-1    Schedule 13D    Page 5 of 8 Pages

 

  b. two (2) demand registrations, exercisable by holders of the 10% Convertible Notes claiming 25% of the Class A Common Stock issuable upon conversion of the entire aggregate outstanding principal amount of the notes; and

 

  c. one (1) demand registration within 90 days of a change of control, exercisable by holders of the Series C Preferred Stock claiming 20% of the Class A Common Stock issuable upon conversion of the entire aggregate outstanding principal amount of Series C Preferred Stock.

Parties to the agreement holding $10 million worth of shares of Class A Common Stock on an as-converted basis may also request up to five shelf registrations, only two of which may be underwritten without the Issuer’s consent. The agreement further provided for the Issuer to file a single shelf registration for shares of Class A Common Stock issuable upon conversion of the 10% Convertible Notes. The Issuer filed this shelf registration on Form S-3 on February 4, 2003.

Finally, the Registration Rights Agreement provides unlimited incidental registration rights for all parties, other than in the case of certain high yield debt offerings and in other limited circumstances. On July 3, 2003, the Issuer filed another shelf registration statement on Form S-3 for a secondary offering of Class A Common Stock, pursuant to contractual rights held by General Motors and certain other investors. American Honda joined this registration pursuant to its incidental registration rights, including all shares of Class A Common Stock issuable to it upon conversion of its Series C Preferred Stock.

Director Designation Agreement

American Honda and the Reporting Persons entered into an Amended and Restated Director Designation Agreement dated February 1, 2003 with the Issuer, as amended on September 9, 2003 and March 7, 2005, pursuant to which the number of directors of the Issuer was set at seven and (i) the Issuer granted American Honda a designee to the board for such time as American Honda retains at least 50% of its investment in the Issuer as of the date of the agreement, (ii) subject to certain limitations, the Issuer granted Clear Channel a designee to the board and (iii) the Issuer granted American Honda and the Reporting Persons approval rights with respect to two independent directors. Two other directors must be the President and the Chairman of the Issuer.

If elected to the board, the American Honda designee will be on any executive committee. Each party to the agreement agreed to vote its shares in favor of the other parties’ designees. The agreement terminates as to certain parties if the combined voting power of the parties exceeds 50%. The parties with the smallest number of shares as of the date of the original agreement are dropped from the agreement first, until the voting power of the remaining parties

CUSIP NO. 983759-10-1    Schedule 13D    Page 6 of 8 Pages

falls to 50% or less. Pursuant to this agreement, Thomas G. Elliott, the Executive Vice President, Automobile Operations of American Honda, joined the Issuer’s board of directors on January 28, 2003.

Forward Sale Agreement

and Pledge Agreement

American Honda entered into a forward sale agreement (the “Forward Sale Agreement”) dated May 9, 2005 with Bank of America, N.A. (“Bank of America”) relating to $33,249,084 in principal amount as of December 31, 2005 and through maturity of the 10% Convertible Notes (the “Hedged Notes”). The Hedged Notes are convertible into 10,455,687 shares of the Issuer’s Class A Common Stock, subject to adjustment. Upon settlement, American Honda will deliver the Hedged Notes to Bank of America against cash payment therefor at a price equal to the conversion value thereof at the time of settlement, provided that such price may not be lower than $27.00 nor higher than $29.97, all as subject to adjustment as set forth in the Forward Sale Agreement. American Honda may elect to retain ownership of the Hedged Notes and settle amounts owing under the Forward Sale Agreement in cash. The Forward Sale Agreement is subject to early settlement and termination under some circumstances.

Pursuant to a related Pledge Agreement dated May 9, 2005 between American Honda and Bank of America, American Honda has delivered and pledged the Hedged Notes to Bank of America as security for its obligations under the Forward Sale Agreement.

Conversion Agreement

American Honda entered into a conversion agreement (the “Conversion Agreement”) dated September 22, 2006, with the Obligors pursuant to which American Honda has agreed to convert, effective on or before October 23, 2006, into shares of the Class A Common Stock the following securities held by American Honda: (i) 50,000 shares of the Series C Preferred Stock and (ii) $33,249,084 aggregate principal amount at September 22, 2006, of the 10% Convertible Notes. In consideration of the agreement of American Honda to so convert such 10% Convertible Notes and Series C Preferred Stock, the Issuer has agreed, concurrently with the closing of the conversion, to issue to, and cause to be registered in the name of, American Honda, a premium consisting of 1,221,247 shares of the Class A Common Stock. The total number of shares of Class A Common Stock issued in the conversion will be 20,399,060.

* * * * *

Other than the foregoing agreements and others described in filings made with the SEC by the Reporting Persons, there are no contracts, arrangements, understandings or relationships among American Honda, Honda Motor, or, to their best knowledge, any of the Reporting Persons, or any of their respective executive officers or directors, or between such persons and any person, with respect to any securities of the Issuer.

CUSIP NO. 983759-10-1    Schedule 13D    Page 7 of 8 Pages

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS

Item 7 is hereby amended to add the following:

 

Exhibit 99.30   Conversion Agreement dated September 22, 2006, by and among American Honda Motor Co., Inc., XM Satellite Radio Holdings Inc., and XM Satellite Radio, Inc.

CUSIP NO. 983759-10-1    Schedule 13D    Page 8 of 8 Pages

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: September 22, 2006

 

AMERICAN HONDA MOTOR CO., INC.
By:  

/s/    KOHEI TAKEUCHI

 

Kohei Takeuchi

Vice President Finance

EXHIBIT INDEX

 

Exhibit No.   

Description

Exhibit 99.30    Conversion Agreement dated September 22, 2006, by and among American Honda Motor Co., Inc., XM Satellite Radio Holdings Inc., and XM Satellite Radio, Inc.
 EX-99.30 2 dex9930.htm CONVERSION AGREEMENT Conversion Agreement

Exhibit 99.30

EXECUTION VERSION

American Honda Motor Co., Inc.

1919 Torrance Blvd.

Torrance, CA 90501

September 22, 2006

XM Satellite Radio Holdings Inc.

XM Satellite Radio Inc.

1500 Eckington Place, NE

Washington, DC 20002

Ladies and Gentlemen:

1. Conversion. American Honda Motor Co., Inc. (“American Honda”) is the registered holder of (i) 50,000 shares (the “Holder Series C Preferred Stock”) of 8.25% Series C Convertible Redeemable Preferred Stock due 2012 (the “Series C Preferred Stock”) of XM Satellite Radio Holdings Inc. (“Holdings”) and (ii) $33,249,084 aggregate principal amount at maturity (the “Holder Notes”) of 10% Senior Secured Discount Convertible Notes due 2009 (the “Notes”) jointly issued by Holdings and XM Satellite Radio Inc. (together with Holdings, “XM”). Effective as of the Closing Date (as defined below), American Honda hereby elects to convert all of the Holder Series C Preferred Stock and Holder Notes into shares (“Shares”) of Holdings’ Class A Common Stock (“Class A Common Stock”) pursuant to Section 4.1 of the Certificate of Designation governing the Series C Preferred Stock and Section 9.1 of the Amended and Restated Note Purchase Agreement, dated as of June 16, 2003, relating to the purchase of the Notes (the “Note Purchase Agreement”). The conversion of the Holder Notes and the Holder Series C Preferred Stock is hereinafter called the “Conversion”.

2. Conversion Premium. In consideration of the agreement of American Honda to elect the Conversion and in respect of the conversion of the Holder Notes and the Holder Series C Preferred Stock, Holdings agrees that, concurrently with the Closing, Holdings will issue to, and cause to be registered in the name of, American Honda, a premium (the “Conversion Premium”) consisting of the number of Shares set forth in the attached schedule (the “Schedule”). The parties expressly disclaim that the Conversion Premium is a fee and agree that the Conversion Premium is an additional amount paid to retire the Holder Notes and the Holder Series C Preferred Stock. The Conversion is intended to qualify as a “reorganization” as described in Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”), and this Agreement is intended to constitute a “plan of reorganization” within the meaning of the regulations promulgated under Section 368 of the Code and neither the Company nor any other

party to this Agreement shall take a position on any tax returns or other statement or report to any government or taxing authority inconsistent with such intention unless required to do so by applicable tax law. In addition, the Company and each “significant holder” as defined in Treasury Regulation Section 1.368-3T(c)(1) shall file the appropriate statement required under Treasury Regulation Section 1.368-3T on or with its tax return for the taxable year of the Conversion.

3. The Schedule. The Schedule specifies the following information: (a) American Honda’s tax identification number, (b) the Conversion Premium for the Holder Notes and Holder Series C Preferred Stock, and (c) the total number of Shares to be issued to American Honda upon conversion of the Holder Notes and Holder Series C Preferred Stock, including Shares issued as the Conversion Premium.

4. Closing; Delivery for Conversion; Delivery of Shares.

(i) The closing of the transaction contemplated hereby (the “Closing”), including the issuance of Shares in connection with the Conversion, shall occur on the day (the “Closing Date”) that is the first day other than a Saturday or Sunday that is a day on which banks are required to be open for business in the State of New York (“Business Day”) after the earlier of (i) the expiration of the tender offer of Holdings for the Notes (the “Tender Offer”) not held by American Honda or Banc of America Securities, LLC, and (ii) October 23, 2006.

(ii) On the Closing Date, American Honda shall surrender to Holdings the original Holder Notes and the certificates representing the Holder Series C Preferred Stock.

(iii) Holdings shall deliver the Shares, through DTC, for credit to the account specified in the Instructions attached hereto on the third Business Day after the Closing Date.

5. Representations of American Honda. American Honda represents and warrants to Holdings and XM, as of the date hereof and as of the Closing Date, as follows:

(i) American Honda has good title to the Holder Notes free and clear of any liens, claims, encumbrances, security interests, options, charges and restrictions of any kind (“Encumbrances”).

 

- 2 -

(ii) There is no adverse claim to the Holder Series C Preferred Stock and the surrender of the same in connection with the Conversion is effective and rightful.

(iii) American Honda has reviewed Holdings’ filings (“Holdings Filings”) with the Securities and Exchange Commission (the “SEC”) and had an opportunity to ask questions and receive answers from officers of Holdings and XM regarding Holdings, XM, the status of matters described in the Holdings Filings and risks relating to an investment in the Shares.

(iv) American Honda understands that the rights and privileges of holders of Class A Common Stock (described in the description of the Class A Common Stock contained in the Holdings Filings) may be substantially different from, and less favorable than, the rights of holders of the Notes or Series C Preferred Stock.

(v) American Honda understands that the transactions contemplated by this Agreement may constitute purchases and sales for purposes of Section 16 of the Securities Exchange Act of 1934, and that if that is the case American Honda may not be able to effect other purchases or sales of Class A Common Stock within the next six months without becoming subject to certain recapture provisions of Section 16.

6. Holdings Representations. Holdings represents and warrants to American Honda, as of the date hereof and as of the Closing Date, as follows:

(i) The Shares to be issued in the Conversion, when issued, will be duly authorized, validly issued, fully paid and nonassessable and free from all Encumbrances, other than those arising from acts of American Honda or its affiliates.

(ii) There is nothing contained in Holdings Filings or otherwise that would conflict with or otherwise prevent or delay the consummation of the conversion of the Holder Notes or the Holder Series C Preferred Stock being converted hereunder.

(iii) Holdings will be launching the Tender Offer within five Business Days after the date hereof.

 

- 3 -

7. Registration. Holdings and American Honda acknowledge that the Amended and Restated Registration Rights Agreement, dated as of January 28, 2003, among Holdings, American Honda and the other investors named therein (the “Registration Rights Agreement”) applies to the resale of Shares received by American Honda in the Conversion (other than the Conversion Premium).

8. Registration Statement with respect to the Shares Representing the Conversion Premium. Holdings agrees that the Shares representing the Conversion Premium shall be deemed shares issuable in respect of the Holder Notes and the Holder Series C Preferred Stock and that the Registration Rights Agreement shall be deemed to apply to the resale of Shares received by American Honda in respect of the Conversion Premium. Holdings shall, pursuant to the Registration Rights Agreement, file with the SEC a registration statement or a post-effective amendment or Rule 424 prospectus to a currently effective registration statement (the “Premium Registration Statement”) covering the resale of the Shares representing the Conversion Premium no later than the third Business Day after the Closing Date; provided, however, that if Holdings reasonably determines that the filing of the Premium Registration Statement would require additional disclosures with regard to the business of Holdings or any of the matters described in the Current Reports on Form 8-K and in the legal proceedings sections of the Quarterly Reports on Form 10-Q filed with the SEC since the date of the Holdings Annual Reports on Form 10-K for 2005, Holdings shall have the right to postpone the filing of the Premium Registration Statement for a reasonable period, such period to end not later than the date of filing by Holdings of its next Quarterly Report on Form 10-Q. Holdings is not aware of any fact that would prevent such Premium Registration Statement from becoming effective immediately upon filing or that would be a Suspension Event (as defined in the Registration Rights Agreement). Holdings shall promptly notify American Honda of any such postponement and of the end of any period of postponement.

9. Prospectus Delivery. American Honda hereby commits to XM that it will (i) to the extent that it effects a sale of any Shares pursuant to a shelf registration statement of Holdings, comply with prospectus delivery requirements in connection with such sale to the extent it is required to do so under applicable law, rule or regulation; (ii) effect sales of Class A Common Stock pursuant to Rule 144 of the Securities Act of 1933, as amended (the “Securities Act”) or (iii) to the extent that it effects a sale of any Class A Common Stock pursuant to another exemption from the registration requirements of the Securities Act, provide to Holdings an opinion of counsel to the effect that such sale is exempt from registration thereunder.

 

- 4 -

10. Further Actions. Holdings, XM and American Honda agree to execute and deliver all such further documents, agreements and instruments and take such other and further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement. Each of Holdings, XM and American Honda represents and warrants to the others that entering into this Agreement has been duly authorized by such party and that this Agreement constitutes the legal, valid and binding agreement of such party enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

11. Counterparts; Governing Law; Third Party Beneficiaries.

(i) This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

(ii) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to conflict of laws principles other than New York General Obligations Law Sections 5-1401 and 5-1402.

(iii) It is the intent of Holdings, XM and American Honda that no person or entity other than the parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against any of the parties hereto, and the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto or their respective successors, heirs, executors, administrators, legal representatives and permitted assigns.

 

- 5 -

Very truly yours,
AMERICAN HONDA MOTOR CO., INC.
By:  

/s/    KOHEI TAKEUCHI

Name:   Kohei Takeuchi
Title:   Vice President Finance

Acknowledged and Agreed:

 

XM SATELLITE RADIO HOLDINGS INC.
By:  

/s/    JOSEPH J. EUTENEUER

Name:   Joseph J. Euteneuer
Title:   EVP, CFO
XM SATELLITE RADIO INC.
By:  

/s/    JOSEPH J. EUTENEUER

Name:   Joseph J. Euteneuer
Title:   EVP, CFO

 

- 6 -

SCHEDULE

 

Holder

    Aggregate
Principal
Amount at
Maturity of
Notes		    Number of
Shares of Series
C Preferred Stock		    Shares of Class A
Common Stock
Issuable in respect
of Conversion		    Conversion
Premium		    Number of
Premium
Shares

American Honda Motor Co., Inc.

    $ 33,249,084       10,455,687    $ 10,666,306.20    789,502

American Honda Motor Co., Inc.

       50,000    8,722,126    $ 3,743,231    431,745

Total Number of Shares Issuable upon Conversions: 20,399,060

EIN of American Honda: 95-2041006

Instructions

Securities Account:

DTC Number: 5198

Reference: 21C-03032

For benefit of American Honda Motor Co., Inc.

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