Exhibit 21
January 22, 2004
XM Satellite Radio Holdings, Inc.
0000 Xxxxxxxxx Xxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Bear, Xxxxxxx & Co. Inc.
As Representatives of the
Several Underwriters named in
the Underwriting Agreement
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Dear Sirs:
The undersigned understands that Bear, Xxxxxxx & Co., Inc, and the
underwriters named in the underwriting agreement (the "Underwriters"), will
enter into an Underwriting Agreement with XM Satellite Radio Holdings Inc., a
Delaware corporation (the "Company"), providing for a public offering (the
"Offering") of the Company's Class A common stock, par value $.01 per share (the
"Common Stock") pursuant to the following Registration Statements on Form S-3:
File Nos. 333-81932; 333-102966 and 333-106824.
In order to induce you to act as Underwriters in connection with the
Offering, the undersigned hereby agrees, for the benefit of the Company and the
Underwriters, that during the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the final
prospectus supplement relating to the Offering (the "Lock-Up Period"), the
undersigned will not, directly or indirectly, without the prior written consent
of Bear, Xxxxxxx & Co. Inc., which consent shall not be unreasonably withheld,
delayed or conditioned, offer, sell, contract to sell, swap, make any short
sale, pledge, establish or increase an open "put equivalent position" or
liquidate or decrease a "call equivalent position" with respect to shares of
Common Stock within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), grant or solicit any option to purchase,
borrow or otherwise enter into any derivative or other transaction or
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of shares of Common Stock, whether or not such
transaction is to be settled by delivery of shares of Common Stock, other
securities, cash or other consideration, or otherwise dispose (or publicly
announce the undersigned's intention to do any of the foregoing) of, directly or
indirectly, any shares of Common Stock or other capital stock of the Company, or
any securities convertible into, or exercisable or exchangeable for, any shares
of Common Stock or other capital stock of the Company that the undersigned
currently beneficially owns (within the meaning of Rule 13d-3 under the Exchange
Act), directly or indirectly, or may beneficially own, directly or indirectly,
in the future; PROVIDED THAT the foregoing shall not prohibit (1) any conversion
of the Company's Series A convertible preferred stock, Series B convertible
redeemable preferred stock, Series C convertible redeemable
preferred stock, Class B common stock or 10% Senior Secured Discount
Convertible Notes due 2009 into Common Stock or (2) transfers of shares of
Common Stock or Common Stock equivalents to a trust where the beneficiaries of
the trust are drawn solely from a group consisting of the undersigned and
immediate family members of the undersigned PROVIDED FURTHER THAT (i) the trust
agrees to enter into a lock-up letter substantially in the form of this letter
and (ii) the undersigned shall not be required to, and shall not voluntarily,
file a report on Form 4 under Section 16(a) of the Exchange Act reporting a
reduction in beneficial ownership of shares of Common Stock during the
restricted period referred in the foregoing sentence. Immediate family member of
a person means the spouse, lineal descendants, father, mother, brother, sister,
family-in-law, mother-in-law, brother-in-law and sister-in-law of such person.
The undersigned hereby authorizes the Company during the Lock-Up Period to
cause any transfer agent for the Common Stock to decline to transfer, and to
note stop transfer restrictions on the stock register and other records relating
to, Common Stock for which the undersigned is the record holder and, in the case
of Common Stock for which the undersigned is the beneficial but not the record
holder, agrees during the Lock-Up Period to cause the record holder to cause the
relevant transfer agent to decline to transfer, and to note stop transfer
restrictions on the stock register and other records relating to, such Common
Stock. The undersigned hereby further agrees that, without the prior written
consent of Bear, Xxxxxxx & Co. Inc., which consent shall not be unreasonably
withheld, delayed or conditioned, during the Lock-up Period the undersigned (x)
will not file or participate in the filing with the Securities and Exchange
Commission of any registration statement, or circulate or participate in the
circulation of any preliminary or final prospectus or other disclosure document
with respect to any proposed offering or sale of Common Stock and (y) will not
exercise any rights the undersigned may have to require registration with the
Securities and Exchange Commission of any proposed offering or sale of Common
Stock.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents reasonably necessary in connection with
enforcement hereof. Any obligations of the undersigned shall be binding upon the
successors and assigns of the undersigned from the date first above written.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
This Agreement shall lapse and become null and void if the Offering shall not
have been completed on or before February 29, 2004.
Very truly yours,
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
Director
Dated: January 22, 2004
