This excerpt taken from the SIRI 10-K filed Mar 10, 2009.
3.1 Filings; Other Actions. Each of Purchaser, on the one hand, and the Company, on the other hand, will cooperate and consult with the other and use reasonable best efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents, and to obtain all necessary permits, consents, orders, approvals and authorizations of, or any exemption by, all third parties and Governmental Entities, and the expiration or termination of any applicable waiting period, necessary or advisable to consummate the transactions contemplated by this Agreement, and to perform the covenants contemplated by this Agreement. Each party shall execute and deliver both before and after the Closing such further certificates, agreements and other documents and take such other actions as the other parties may reasonably request to consummate or implement such transactions or to evidence such events or matters. In particular, Purchaser will use its reasonable best efforts to obtain or submit, and the Company will cooperate as may reasonably be requested by Purchaser to help Purchaser obtain or submit, as the case may be, as promptly as practicable, the approvals and authorizations of, filings and registrations with, and notifications to, or expiration or termination of any applicable waiting period, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act) or applicable competition or merger control laws of other jurisdictions, prior to the conversion of any Series B-2 Preferred Stock into Common Stock or Series B-1 Preferred Stock. Without limiting the foregoing, to the extent required, Purchaser and the Company shall prepare and file a Notification and Report Form pursuant to the HSR Act in connection with the proposed acquisition of voting securities of the Company in excess of the applicable filing thresholds as promptly as practicable after the
date of this Agreement. Purchaser and the Company will have the right to review in advance, and to the extent practicable each will consult with the other, in each case subject to applicable laws relating to the exchange of information, all the information relating to such other party, and any of their respective Affiliates, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as practicable. Each party hereto agrees to keep the other party apprised of the status of matters referred to in this Section 3.1. Purchaser shall promptly furnish the Company, and the Company shall promptly furnish Purchaser, to the extent permitted by applicable law, with copies of written communications received by it or its Subsidiaries from, or delivered by any of the foregoing to, any Governmental Entity in respect of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary, (i) neither Purchaser nor any other Liberty Party shall be required to take (or commit to take) any actions pursuant to this Section 3.1, (A) if any such actions would reasonably be expected to have a material adverse effect on the Liberty Capital tracking stock group of Liberty Media Corporation or any business attributed to such tracking stock group, or (B) if any such actions would reasonably be expected to have an adverse effect on any other tracking stock group of Liberty Media Corporation, or any business attributable to any such other tracking stock group, or (C) if Purchaser determines, in good faith, that such actions would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, or any business thereof. Notwithstanding anything to the contrary, neither the Company nor any its Subsidiaries shall be required to take (or commit to take) any actions pursuant to this Section 3.1, if the Company determines, in good faith, that such actions would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, taken as a whole.
3.2 Corporate Actions.
(a) Authorized Common Stock. At any time that any Preferred Stock is outstanding, the Company shall from time to time take all lawful action within its control to cause the authorized capital stock of the Corporation to include a sufficient number of authorized but unissued shares of Common Stock to satisfy the conversion requirements of all shares of Preferred Stock then outstanding.
(b) Anti-Takeover Provisions. From and after the date hereof, the Company shall not (i) amend, modify or rescind the resolution specified in Section 2.1(f) and Exhibit C attached hereto or (ii) adopt any poison pill or shareholder rights plan, or any charter or bylaw provision, in any case that would materially adversely affect the Purchasers ability to acquire and dispose of Equity Securities from time to time to a Liberty Party or, after the third anniversary of the Closing Date, in block transactions or otherwise (subject to complying with Section 4.1 and Section 4.2 hereof) or that otherwise would impose material economic burdens on the Purchasers ability to do so (an Anti-Takeover Provision).
(c) Certificates of Designation; Conversion Rate. Prior to the Closing, the Company shall file in the office of the Secretary of State of the State of Delaware the Preferred Stock Certificates of Designations substantially in the forms attached to this Agreement as Exhibit A and Exhibit B, with such changes thereto as the parties may reasonably agree. The Conversion Rate (as defined in the Preferred Stock Certificates of Designations) will be a rate such that
assuming all shares of the Preferred Stock were converted into Common Stock on the Closing Date, the Preferred Stock would, on an as-converted basis, represent 40% of the total outstanding Common Stock (assuming for purposes of this calculation that all In The Money Securities are converted into Common Stock) on the Closing Date.
3.3 Equity Issuances. Prior to the Closing, the Company shall not issue or agree to issue options, warrants, rights or other securities convertible into, or exercisable or exchangeable for, shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, other than in connection with stock options or other equity awards issued or granted to officers, employees, consultants or directors of the Company pursuant to any compensation plan or other employee benefit plan or arrangement in effect as of the date hereof or subsequently approved by stockholders; provided, however, that the shares issuable in respect of such stock options or other equity awards so granted will not exceed, in the aggregate, 5% of the number of shares of Common Stock outstanding on the Capitalization Date.
3.4 Confidentiality. Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, Information) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
This excerpt taken from the SIRI 10-Q filed Nov 12, 2008.
SECTION 3.01. Payment of Notes. The Company shall promptly pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due.
The Company shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
SECTION 3.02. SEC Reports. So long as any Notes are outstanding, Holdings and Sirius will furnish to the Trustee:
(1) within 90 days after the end of each fiscal year, annual reports of each of Holdings and Sirius containing substantially all of the information that would have been required to be contained in an Annual Report on Form 10-K under the Exchange Act if each of Holdings and Sirius had been a reporting company under the Exchange Act (but only to the extent similar information was included in the Offering Memorandum), including (A) Managements Discussion and Analysis of Financial Condition and Results of Operations and (B) audited financial statements prepared in accordance with GAAP and (C) a presentation of EBITDA of Holdings and its Restricted Subsidiaries consistent with the presentation thereof in the Offering Memorandum and derived from such financial statements;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of each of Holdings and Sirius containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q under the Exchange Act if each of Holdings and Sirius had been a reporting company under the Exchange Act (but only to the extent similar information is provided in the Offering Memorandum), including (A) Managements Discussion and Analysis of Financial Condition and Results of Operations, (B) unaudited quarterly financial statements prepared in accordance with GAAP and reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision) and (C) a presentation of EBITDA of Holdings and its Subsidiaries consistent with the presentation thereof in the Offering Memorandum and derived from such financial statements; and
(3) within 5 Business Days after the occurrence of each event that would have been required to be reported in a Current Report on Form 8-K under the Exchange Act if each of Holdings and Sirius had been a reporting company under the Exchange Act, current reports containing substantially all of the information that would have been required to be contained in a Current Report on Form 8-K under the Exchange Act if each of Holdings and Sirius had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to be furnished if Holdings or Sirius, as the case may be, determines in its good faith judgment that such event is not material to Noteholders or the business, assets, operations, financial positions or prospects of Holdings and its Restricted Subsidiaries, taken as a whole, or Sirius and its restricted subsidiaries, taken as a whole, as the case may be;
provided, however, that such reports (A) will not be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) and (B) will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 of Regulation S-X promulgated by the SEC. The availability of the foregoing materials on the SECs EDGAR service shall be deemed to satisfy the delivery obligations of Holdings and Sirius.
In addition, Holdings shall furnish to Noteholders, prospective investors, broker-dealers and securities analysts, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
Following a Company-Holdings Merger, a Holdings-Sirius Merger or a Company-Sirius Merger, the obligations of Holdings under this covenant shall be assumed by the Company or Sirius, as the case may be. In addition, notwithstanding the foregoing, in the event that Sirius Guarantees the Notes, all of Holdings reporting obligations under this Section 3.02 shall terminate.
SECTION 3.03. Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an Affiliate Transaction) unless:
(1) the terms of the Affiliate Transaction are no less favorable to the Company or such Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in arms-length dealings with a Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of $5 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the directors of the Company who have no direct financial interest with respect to such Affiliate Transaction (other than as a stockholder of the Company, Holdings or Sirius) have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors of the Company; and
(3) if such Affiliate Transaction involves an amount in excess of $20 million, the Board of Directors of the Company shall also have received a written opinion from an Independent Qualified Party to the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arms-length transaction with a Person who was not an Affiliate or is fair from a financial point of view.
(b) The provisions of the preceding paragraph (a) shall not prohibit:
(1) any Permitted Investment or Permitted Restricted Payment; provided, that so long as the Company and the Guarantors do not have any other agreements governing indebtedness which prohibit any Restricted Payments or Investments, no Restricted Payments or Investments will be prohibited by the preceding paragraph (a);
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership or other employee benefit plans approved by the Board of Directors of the Company or Sirius or entered into in the ordinary course of business;
(3) to the extent permitted by applicable law, loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or its Restricted Subsidiaries, but in any event not to exceed $2 million in the aggregate outstanding at any one time;
(4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries;
(5) any transaction with the Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(7) any agreement as in effect on the Issue Date and described in the Offering Memorandum, as these agreements may be amended, modified, supplemented, extended or renewed from time to time (so long as any amendment, modification, supplement, extension or renewal is not less favorable in any material respect to the Company or the Restricted Subsidiaries) and the transactions evidenced thereby;
(8) any transaction by the Company or any Restricted Subsidiary with an Affiliate related to the purchase, sale or distribution of XM radios, subscription to XM services or other products or services in the ordinary course of business including any such transaction with an automotive manufacturer or similar business partner, which has been approved by a majority of the members of the Board of Directors of the Company who have no direct financial interest with respect to such Affiliate Transaction (other than as a stockholder of the Company, Holdings or Sirius);
(9) a Company-Holdings Merger or a Company-Sirius Merger; and
(10) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries.
SECTION 3.04. Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company an Officers Certificate stating that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the Officers Certificate shall describe the Default, its status and what action the Company is taking or proposes to take with respect thereto.
The Company shall deliver to the Trustee, as soon as possible and in any event within five Business Days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers Certificate setting forth the details of such Event of Default or Default and the action which the Company proposes to take with respect thereto.
SECTION 3.05. Additional Interest Notice. In the event that the Company is required to pay Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the Company will provide written notice (Additional Interest Notice) to the Trustee of its obligation to pay Additional Interest no later than fifteen days prior to the proposed payment date for the Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Additional Interest, or with respect to the nature, extent, or calculation of the amount of Additional Interest owed, or with respect to the method employed in such calculation of the Additional Interest.
SECTION 3.06. Further Instruments and Acts. Upon request of the Trustee, the Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.