EXHIBIT 17
AMENDMENT NO. 1 to
AMENDED AND RESTATED DIRECTOR DESIGNATION AGREEMENT
This Amendment No. 1 dated as of September 9, 2003 (this "Amendment") to
the Amended and Restated Director Designation Agreement dated as of January 28,
2003 (the "Current Agreement", and as amended by this Amendment, the
"Agreement"), is hereby entered into by and among XM Satellite Radio Holdings
Inc., a corporation duly organized under the laws of the State of Delaware (the
"Company"); Clear Channel Investments, Inc., a corporation duly organized under
the laws of the State of Nevada ("Clear Channel"); Xxxxxx Electronics
Corporation, corporation duly organized under the laws of Delaware ("Xxxxxx");
American Honda Motor Co., Inc., a corporation duly organized under the laws of
the State of California ("Honda"); and Madison Dearborn Capital Partners III,
L.P. ("Madison Capital"), Madison Dearborn Special Equity III, L.P. ("Madison
Equity"), and Special Advisors Fund I, LLC ("Madison Advisors" and, collectively
with Madison Capital and Madison Equity, each an entity duly organized under the
laws of the State of Delaware, "Madison"). Clear Channel, Honda, Xxxxxx and
Madison are collectively referred to herein as the "Investors." The Company and
the Investors are collectively referred to herein as the "Parties." AEA XM
Investors I LLC, AEA XM Investors II LLC, AEA XM Investors IA LLC and AEA XM
Investors IIA LLC, each a limited liability company organized under the laws of
the State of Delaware (individually or collectively "AEA XM") are becoming
parties hereto solely for the purposes of agreeing to the amendment of the
Current Agreement by this Amendment and terminating their respective rights and
obligations thereunder. Upon effectiveness of this Amendment, each of AEA XM
Investors I LLC, AEA XM Investors II LLC, AEA XM Investors IA LLC and AEA XM
Investors IIA LLC shall cease to be a party to the Agreement and all of their
respective rights and obligations thereunder shall be terminated.
WITNESSETH
WHEREAS, the Company, the Investors, and AEA XM are parties to the Current
Agreement, dated as of January 28, 2003, that relates to the designation of the
Company's directors; and
WHEREAS, AEA XM desires to cease to be party to the Current Agreement and
to cease to have any right that its designee be elected to the Company's Board
of Directors; and
WHEREAS, the Company and each of the Investors believe it to be in the
best interests of the Company and the mutual best interests of each of the
Investors to continue to have certain agreements with respect to the designation
of directors of the Company.
NOW, THEREFORE, in consideration for the mutual covenants contained
herein, the adequacy, receipt, and sufficiency of which are hereby acknowledged,
the undersigned hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Capitalized terms used but not otherwise defined herein shall
have the receptive meanings as set forth in the Current Agreement. All
references to the "Agreement" in the Current Agreement, as amended, shall be
deemed to refer to the Current Agreement, as amended, supplemented or otherwise
modified from time to time.
ARTICLE II.
AMENDMENT of Article II
Section 2.1 (a) Section 2.1 (a) of the Current Agreement is hereby amended
by deleting Section 2.1(a)(v) thereof and substituting therefor the phrase
"[Intentionally Deleted]"
(b) Section 2.1(b) of the Current Agreement is hereby amended by deleting
the third sentence thereof relating to the rights of AEA XM.
(c) Section 2.4 of the Current Agreement is hereby deleted in its entirety
and the following substituted therefor:
Section 2.4 Partial Termination. If the Investors at any time
beneficially own in excess of 50% of the voting securities of the
Company, then this Agreement shall terminate automatically as to the
following, in all respects, first, Clear Channel, and second (if
necessary), Madison, until the remaining Investors beneficially own
50% or less of the voting securities of the Company. The Parties
shall take all actions to reflect any such partial termination as
may be reasonably requested by the Company or any other Party.
Thirty (30) days prior to a date for payment of interest (an
"Interest Payment") under any of (i) the New Notes, (ii) the 10%
Senior Secured Convertible Note due 2009 of the Company and XM
Satellite Radio Inc. in favor of General Motors Corporation, and
(iii) the Credit Agreement among the Company, XM Satellite Radio
Inc. and General Motors Corporation, the Company shall calculate the
Investors' beneficial ownership of voting securities of the Company
(with a copy of such calculation to be furnished to each of the
Investors). Each Investor shall provide the Company with at least
ten (10) days prior written notice of its intent to purchase any
voting securities of the Company. If any proposed purchase of voting
securities or Interest Payment would cause the beneficial ownership
of the Investors to be in excess of 50%, then the Parties shall take
such actions as necessary to remove Investors as Parties to this
Agreement in the order set forth above.
(d) Schedule I of the Current Agreement is hereby amended by deleting the
name, address and facsimile number of AEA XM.
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ARTICLE III.
MISCELLANEOUS
Section 3.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO ANY CONFLICT OF LAW PROVISIONS THEREOF.
EACH OF THE PARTIES ACKNOWLEDGES THAT (i) IT IS A KNOWLEDGEABLE, INFORMED,
SOPHISTICATED BUSINESS ENTITY CAPABLE OF UNDERSTANDING AND EVALUATING THE
PROVISIONS SET FORTH IN THIS AGREEMENT, AND (ii) IT HAS BEEN REPRESENTED BY SUCH
COUNSEL AND OTHER ADVISORS OF ITS CHOOSING AS IT HAS DEEMED APPROPRIATE IN
CONNECTION WITH ITS DECISION TO ENTER INTO THIS AGREEMENT.
Section 3.2 Parties In Interest. This Agreement shall be binding upon and
shall inure to the benefit of each Party and their respective successors and
permitted assigns as provided for herein, and by their signatures hereto, and
each Party intends to and does hereby become bound. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any Person
other than the Parties hereto and their respective successors and assigns any
legal or equitable right, remedy or claim under or in or in respect of this
Agreement or any provision herein contained.
Section 3.3 Severability of Provisions. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 3.4 Plural; Singular. When used herein, the singular of each term
includes the plural and the plural of each term includes the singular.
Section 3.5 Counterparts. This Agreement may be executed in any number of
counterparts all of which taken together shall constitute one agreement and any
Party hereto may execute this Agreement by signing any such counterpart.
Section 3.6 Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
Section 3.7 Future Assurances. Each Party shall execute and deliver all
such future instruments and take such other and further action as may be
reasonably necessary or appropriate to carry out the provisions of this
Agreement and the intention of the Parties as expressed herein.
Section 3.8 Continued Validity of Agreement. The Current Agreement, as
amended by this Amendment, shall continue in full force and effect among the
Parties.
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Section 3.9 Fees and Expenses. The Company shall pay the reasonable legal
fees and expenses of the Investors incurred in connection herewith.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
signed as of the date first above written.
XM SATELLITE RADIO HOLDINGS INC.
By:
---------------------------
Name:
Title:
CLEAR CHANNEL INVESTMENTS, INC.
By:
---------------------------
Name:
Title:
XXXXXX ELECTRONICS CORPORATION
By:
---------------------------
Name:
Title:
AMERICAN HONDA MOTOR CO., INC.
By:
---------------------------
Name:
Title:
MADISON DEARBORN CAPITAL PARTNERS III, MADISON DEARBORN SPECIAL EQUITY III,
L.P. L.P.
By Madison Dearborn Partners III, L.P., By Madison Dearborn Partners III, L.P.
its general partner its general partner
By Madison Dearborn Partners LLC, its By Madison Dearborn Partners LLC, its
general partner general partner
By: By:
--------------------------------- Name:
Name:
Title: Title:
SPECIAL ADVISORS FUND I, LLC
By Madison Dearborn Partners III, L.P.,
its manager
By Madison Dearborn Partners LLC, its
general partner
By:
--------------------------------
Name:
Title:
AEA XM INVESTORS I LLC AEA XM INVESTORS II LLC
By AEA XM Investors I LP, its Sole By AEA XM Investors II LP, its Sole
Member Member
By AEA XM Investors Inc., its General By AEA XM Investors Inc., its General
Partner Partner
By: By:
--------------------------------- -----------------------------
Name: Name:
Title: Title:
AEA XM INVESTORS IA LLC AEA XM INVESTORS IIA LLC
By AEA XM Investors IA LP, its Sole By AEA XM Investors IIA LP, its Sole
Member Member
By AEA XM Investors Inc., its General By AEA XM Investors Inc., its General
Partner Partner
By: By:
--------------------------------- ---------------------------------
Name: Name:
Title: Title:
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