sctovi
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or
Section 13(e)(1)
of the Securities Exchange Act of 1934
SIRIUS XM RADIO INC.
(Name of Subject Company
(Issuer)
and Name of Filing Person
(Offeror))
31/4% Convertible
Notes due 2011
(Title of Class of
Securities)
82966UAD5
(CUSIP Number of Class of
Securities)
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 and telephone
number of person authorized
to receive notices and
communications on behalf of filing person)
With copies to:
John D. Lobrano
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
Calculation
of Filing Fee
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Transaction Valuation(1)
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Amount of Filing Fee
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$98,617,724.29
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$11,443.37
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Calculated solely for purposes of determining the amount of the
filing fee. The calculation of the Transaction Value assumes
that all $97,831,000 aggregate principal amount of Sirius XM
Radio Inc.’s
31/4% Convertible
Notes due 2011 are purchased at the tender offer price of
$1,007.50 per $1,000 principal amount of such Notes, plus
accrued and unpaid interest on the Notes to, but not including
the assumed payment date of April 21, 2011. The amount of
the filing fee equals $116.10 per $1,000,000 of Transaction
Value.
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Check box if any part of the fee is offset as provided by
Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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Amount Previously Paid: Not applicable.
Form or Registration No.: Not applicable.
Filing Party: Not applicable.
Date Filed: Not applicable.
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions
to which the statement relates:
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Third-party tender offer subject to
Rule 14d-1.
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Issuer tender offer subject to
Rule 13e-4.
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Going private transaction subject to
Rule 13e-3.
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Amendment to Schedule 13D under
Rule 13d-2.
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Check the following box if the filing is a final amendment
reporting the results of the tender offer:
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TABLE OF CONTENTS
INTRODUCTION
This Tender Offer Statement on Schedule TO (this
“Schedule TO”) relates to the offer (the
“Offer”) by Sirius XM Radio Inc. (the
“Company”), a Delaware corporation, to purchase
any and all of the Company’s 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
the Notes purchased upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated March 24, 2011
(as the same may be amended or supplemented, the “Offer
to Purchase”) and the related Letter of Transmittal (as
the same may be amended or supplemented, the “Letter of
Transmittal”). The Company’s obligation to accept
for payment, and to pay for, the Notes validly tendered and not
validly withdrawn pursuant to the Offer is subject to
satisfaction of the applicable conditions described in the Offer
to Purchase. This Schedule TO is intended to satisfy the
reporting requirements of
Rule 13e-4(c)(2)
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). This Schedule TO
incorporates by reference certain sections of the Offer to
Purchase specified below in response to Items 1, 2 and 4,
Items 6 through 9 and Items 11 and 12 of this
Schedule TO, as more particularly described below.
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Item 1.
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Summary
Term Sheet.
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The information set forth in the Offer to Purchase in the
section entitled “Summary Term Sheet” is incorporated
herein by reference.
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Item 2.
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Subject
Company Information.
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(a) The name of the issuer is Sirius XM Radio Inc., a
Delaware corporation, engaged in broadcasting 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. The address of the
principal executive office of Sirius XM Radio Inc. is 1221
Avenue of the Americas, 36th Floor, New York, New York 10020.
The telephone number of its principal executive office is
(212) 584-5100.
(b) The subject class of securities are the Company’s
31/4% Convertible
Notes due 2011. As of the date of this filing, $97,831,000 in
aggregate principal amount of Notes was outstanding.
(c) The Notes are not listed on any national or regional
securities exchange or quoted on any automated quotation system.
To the Company’s knowledge, the Notes are traded
infrequently in transactions arranged through brokers, and
reliable market quotations for the Notes are not available. The
common stock of the Company, par value $0.001 per share, into
which the Notes may be converted trade on The NASDAQ Global
Select Market under the symbol “SIRI”. The information
set forth under “Market Information About the Notes and the
Common Stock” in the Offer to Purchase is incorporated
herein by reference.
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Item 3.
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Identity
and Background of Filing Person.
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(a) The Company is the filing person. The Company’s
business address and phone number are set forth in Item 2
above of Schedule TO. The names of the directors of the
board of directors of the Company and executive officers of the
Company who are persons specified in Instruction C to
Schedule TO are set forth below.
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Name
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Position
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Eddy W. Hartenstein
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Director, Chairman of the Board of Directors
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Mel Karmazin
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Director, Chief Executive Officer
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Joan L. Amble
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Director
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Leon D. Black
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Director
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David J.A. Flowers
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Director
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Lawrence F. Gilberti
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Director
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James P. Holden
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Director
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Gregory B. Maffei
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Director
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John C. Malone
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Director
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James F. Mooney
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Director
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2
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Name
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Position
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Jack Shaw
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Director
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Scott A. Greenstein
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President and Chief Content Officer
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James E. Meyer
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President, Operations and Sales
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Dara F. Altman
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Executive Vice President and Chief Administrative Officer
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Patrick L. Donnelly
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Executive Vice President, General Counsel and Secretary
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David J. Frear
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Executive Vice President and Chief Financial Officer
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The business address of each person set forth above is 1221
Avenue of the Americas, 36th Floor, New York, New York 10020.
The telephone number of each person set forth above is
(212) 584-5100.
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Item 4.
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Terms
of the Transaction.
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(a) Material Terms.
(1) Tender Offer.
(i) The information set forth in the Offer to Purchase in
the sections entitled “Summary Term Sheet” and
“Impact of the Offer on Rights of the Holders of the
Notes” is incorporated herein by reference.
(ii) — (iii) The information in the Offer to
Purchase in the sections entitled “Summary Term
Sheet”, “The Offer — Purchase Price;
Accrued Interest” and “The Offer —
Expiration Time; Extension; Amendment; Termination” is
incorporated herein by reference.
(iv) Not applicable.
(v) The information set forth in the Offer to Purchase in
the section entitled “The Offer — Expiration
Time; Extension; Amendment; Termination” is incorporated
herein by reference.
(vi) — (vii) The information set forth in
the Offer to Purchase in the sections entitled “Summary
Term Sheet” and “Procedures for Tendering and
Withdrawing Notes” is incorporated herein by reference.
(viii) The information set forth in the Offer to Purchase
in the sections entitled “Summary Term Sheet” and
“Acceptance for Payment and Payment” is incorporated
herein by reference.
(ix) Not applicable.
(x) The information set forth in the Offer to Purchase in
the section entitled “Impact of the Offer on Rights of the
Holders of the Notes” is incorporated herein by reference.
(xi) Not applicable.
(xii) The information set forth in the Offer to Purchase in
the sections entitled “Summary Term Sheet” and
“Material U.S. Federal Income Tax Consequences”
is incorporated herein by reference.
(2) Mergers and Similar Transactions.
(i) — (vii) Not applicable.
(b) The information set forth in the Offer to Purchase in
the section entitled “Miscellaneous” is incorporated
herein by reference.
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Item 5.
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Past
Contracts, Transactions, Negotiations and
Agreements.
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(e) Agreements Involving the Subject Company’s
Securities.
The Company has entered into the following agreements relating
to the Notes:
(1) Indenture, dated as of May 23, 2003, between the
Company and The Bank of New York, as trustee —
Incorporated by reference to Exhibit 99.2 to the
Company’s Current Report on
Form 8-K
filed on May 30, 2003.
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(2) Third Supplemental Indenture, dated as of
October 13, 2004, between the Company and The Bank of New
York, as trustee — Incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on
Form 8-K
filed on October 13, 2004.
The information set forth in the Offer to Purchase in the
section entitled “Impact of the Offer on Rights of the
Holders of the Notes” is incorporated herein by reference.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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(a) The information set forth in the Offer to Purchase in
the section entitled “The Offer — Purpose of the
Transaction” is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase in
the section entitled “The Offer — Purpose of the
Transaction” is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase in
the section entitled “Miscellaneous” is incorporated
herein by reference.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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(a) The information set forth in the Offer to Purchase in
the section entitled “The Offer — Source and
Amount of Funds” is incorporated herein by reference.
(b) There are no financing conditions.
(d) Not applicable.
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Item 8.
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Interest
in Securities of the Subject Company.
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(a) The information set forth in the Offer to Purchase in
the section entitled “Miscellaneous” is incorporated
herein by reference.
(b) The information set forth in the Offer to Purchase in
the section entitled “Miscellaneous” is incorporated
herein by reference.
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Item 9.
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Persons/Assets,
Retained, Employed Compensated or Used.
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(a) The information set forth in the Offer to Purchase in
the section entitled “Solicitation and Expenses” is
incorporated herein by reference.
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Item 10.
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Financial
Statements.
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Not applicable.
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Item 11.
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Additional
Information.
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(a) Not applicable.
(b) The information contained in the Offer to Purchase and
Letter of Transmittal is incorporated herein by reference.
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Exhibits filed as a part of this Schedule TO are listed
below. Exhibits incorporated by reference are so indicated.
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Exhibit
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Number
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Description
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(a)(1)(i)
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Offer to Purchase dated March 24, 2011.
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(a)(1)(ii)
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Form of Letter of Transmittal (including Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9).
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(a)(1)(iii)
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Form of Letter to Brokers, Securities Dealers,
Trust Companies and Other Nominees that are Holders of
Notes.
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(a)(1)(iv)
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Form of Letter to Clients who are Beneficial Owners of Notes.
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(a)(5)(i)
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Press Release dated March 24, 2011
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(b)
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Not applicable.
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(c)
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Not applicable.
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(d)(1)
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Indenture, dated as of May 23, 2003, between the Company
and The Bank of New York, as trustee — Incorporated by
reference to Exhibit 99.2 to the Company’s Current
Report on
Form 8-K,
filed on May 30, 2003.
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(d)(2)
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Third Supplemental Indenture, dated as of October 13, 2004,
between the Company and The Bank of New York, as
trustee — Incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on
Form 8-K
filed on October 13, 2004.
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(g)
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Not applicable.
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(h)
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Not applicable.
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Item 13.
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Information
Required by
Schedule 13E-3.
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Not applicable.
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SIGNATURE
After due 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.
SIRIUS XM RADIO INC.
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By:
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/s/ Patrick
L. Donnelly
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Name: Patrick L. Donnelly
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Title:
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Executive Vice President, General Counsel and Secretary
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Dated: March 24, 2011
6
EXHIBIT INDEX
Exhibits filed as a part of this Schedule TO are listed
below. Exhibits incorporated by reference are so indicated.
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Exhibit
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Number
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Description
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(a)(1)(i)
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Offer to Purchase dated March 24, 2011.
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(a)(1)(ii)
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Form of Letter of Transmittal (including Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9).
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(a)(1)(iii)
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Form of Letter to Brokers, Securities Dealers,
Trust Companies and Other Nominees that are Holders of
Notes.
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(a)(1)(iv)
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Form of Letter to Clients who are Beneficial Owners of Notes.
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(a)(5)(i)
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Press Release dated March 24, 2011
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(b)
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Not applicable.
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(c)
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Not applicable.
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(d)(1)
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Indenture, dated as of May 23, 2003, between the Company
and The Bank of New York, as trustee — Incorporated by
reference to Exhibit 99.2 to the Company’s Current
Report on
Form 8-K
filed on May 30, 2003.
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(d)(2)
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Third Supplemental Indenture, dated as of October 13, 2004,
between the Company and The Bank of New York, as
trustee — Incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on
Form 8-K
filed on October 13, 2004.
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(g)
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Not applicable.
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(h)
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Not applicable.
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