Exhibit 10.1
PURCHASE AGREEMENT
This purchase agreement (this "Agreement"), dated as of September
5, 2003, is between X. XXXX PRICE ASSOCIATES, INC. (the "Purchaser") and XM
Satellite Radio Holdings Inc. (the "Seller").
WHEREAS, the Purchaser, on behalf of certain of its clients over
whose accounts the Purchaser has investment discretion (each such client a
"Participating Client"), desires to purchase from Seller, and Seller desires to
issue and sell to Purchaser, 4,000,000 shares of its common stock, par value
$0.01 per share (the "Shares").
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions
hereof, the Purchaser hereby agrees to purchase from Seller, and Seller agrees
to issue and to sell to Purchaser, the Shares at a price per share of $13.25 for
an aggregate purchase amount of Fifty Three Million Dollars ($53,000,000) (the
"Purchase Price").
2. Representations and Warranties of Purchaser. The Purchaser
represents and warrants that:
(a) Due Authorization. The Purchaser is duly authorized to
purchase the Shares on behalf of each Participating Client. This
Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a legal, valid and binding agreement of the
Purchaser, enforceable against the Purchaser in accordance with its terms
except as may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights or remedies of creditors, (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law and the discretion of the court before which any
proceeding therefore may be brought and a requirement that an effective
prospectus be delivered prior to closing.
3. Representations and Warranties of Seller. Seller
represents, warrants and agrees that:
(a) Due Authorization. This Agreement has been duly authorized,
executed and delivered by Seller and constitutes a legal, valid and
binding agreement of Seller, enforceable against Seller in accordance
with its terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting the rights or remedies of creditors or (ii) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law and the discretion of the court before
which any proceeding therefore may be brought. No approvals or other
authorizations are required in connection with the Agreement and the
issuance of the Shares, other than approvals which have been obtained.
(b) Organization and Authority. Seller has been duly organized
and is validly existing in good standing under the laws of the State of
Delaware, with full power and authority to own or lease and occupy its
properties and conduct its business as described in the Prospectus
(including the documents incorporated therein by reference).
(c) Issuance of the Shares. The Shares have been duly and
validly authorized, and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable, free of restrictions
upon transferability under federal and state securities laws, and will be
listed, subject to notice of issuance, on the Nasdaq National Market
effective as of the Closing (as defined in Paragraph 5 of this
Agreement).
(d) Absence of Conflicts. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein do not and will not result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Seller.
(e) Effective Registration Statement. There is an effective
registration statement (File No. 333-89132) filed under the Securities
Act of 1933 relating to the Shares and seller will deliver a prospectus
prior to closing and such documents will be filed with the Securities and
Exchange Commission as required under federal securities laws.
4. Conditions to Obligations of the Parties. The obligations
of the parties hereto to effect the transactions contemplated by this Agreement
shall be subject to each of the representations and warranties of the parties
hereto, which shall be true and correct in all respects.
5. Closing. The transactions contemplated hereby shall be
consummated on Wednesday, September 10, 2003 (such time and date of payment and
delivery being herein called the "Closing") and the Shares will be issued in
electronic book entry form on a delivery versus payment basis via the DTC DWAC
System.
6. Governing Law. This Agreement shall be construed in
accordance with and governed by the substantive laws of the State of New York.
7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and may be amended only in a writing that is executed by each of the parties
hereto.
8. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
XM SATELLITE RADIO HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
X. XXXX PRICE ASSOCIATES, INC., on behalf
of the Participating Clients
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PURCHASE AGREEMENT
This purchase agreement (this "Agreement"), dated as of September
5, 2003, is between Xxxx Xxxxx Capital Management, Inc. (the "Purchaser") and XM
Satellite Radio Holdings Inc. (the "Seller").
WHEREAS, the Purchaser, on behalf of certain of its clients over
whose accounts the Purchaser has investment discretion (each such client a
"Participating Client"), desires to purchase from Seller, and Seller desires to
issue and sell to Purchaser, 355,000 shares of its common stock, par value $0.01
per share (the "Shares").
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions
hereof, the Purchaser hereby agrees to purchase from Seller, and Seller agrees
to issue and to sell to Purchaser, the Shares at a price per share of $13.25 for
an aggregate purchase amount of four million seven hundred three thousand seven
hundred fifty dollars ($4,703,750) (the "Purchase Price").
2. Representations and Warranties of Purchaser. The Purchaser
represents and warrants that:
(a) Due Authorization. The Purchaser is duly authorized to
purchase the Shares on behalf of each Participating Client. This
Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a legal, valid and binding agreement of the
Purchaser, enforceable against the Purchaser in accordance with its terms
except as may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights or remedies of creditors, (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law and the discretion of the court before which any
proceeding therefore may be brought and a requirement that an effective
prospectus be delivered prior to closing.
3. Representations and Warranties of Seller. Seller
represents, warrants and agrees that:
(a) Due Authorization. This Agreement has been duly authorized,
executed and delivered by Seller and constitutes a legal, valid and
binding agreement of Seller, enforceable against Seller in accordance
with its terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting the rights or remedies of creditors or (ii) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law and the discretion of the court before
which any proceeding therefore may be brought. No approvals or other
authorizations are required in connection with the Agreement and the
issuance of the Shares, other than approvals which have been obtained.
(b) Organization and Authority. Seller has been duly organized
and is validly existing in good standing under the laws of the State of
Delaware, with full power and authority to own or lease and occupy its
properties and conduct its business as described in the Prospectus
(including the documents incorporated therein by reference).
(c) Issuance of the Shares. The Shares have been duly and
validly authorized, and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable free of restrictions upon
transferability under federal and state securities laws, and will be
listed, subject to notice of issuance, on the Nasdaq National Market
effective as of the Closing (as defined in Paragraph 5 of this
Agreement).
(d) Absence of Conflicts. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein do not and will not result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Seller.
(e) Effective Registration Statement. There is an effective
registration statement (File No. 333-89132) filed under the Securities
Act of 1933 relating to the Shares and seller will deliver a prospectus
prior to closing and such documents will be filed with the Securities and
Exchange Commission as required under federal securities laws.
4. Conditions to Obligations of the Parties. The obligations
of the parties hereto to effect the transactions contemplated by this Agreement
shall be subject to each of the representations and warranties of the parties
hereto, which shall be true and correct in all respects.
5. Closing. The transactions contemplated hereby shall be
consummated on Wednesday, September 10, 2003 (such time and date of payment and
delivery being herein called the "Closing") and the Shares will be issued in
electronic book entry form on a delivery versus payment basis via the DTC DWAC
System.
6. Governing Law. This Agreement shall be construed in
accordance with and governed by the substantive laws of the State of New York.
7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and may be amended only in a writing that is executed by each of the parties
hereto.
8. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
XM SATELLITE RADIO HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior VP and COO
Company: Xxxx Xxxxx Funds Management, Inc.
---------------------------------
PURCHASE AGREEMENT
This purchase agreement (this "Agreement"), dated as of
September 5, 2003, is between Xxxx Xxxxx Funds Management, Inc. (the
"Purchaser") and XM Satellite Radio Holdings Inc. (the "Seller").
WHEREAS, the Purchaser, on behalf of certain of its clients
over whose accounts the Purchaser has investment discretion (each such client a
"Participating Client"), desires to purchase from Seller, and Seller desires to
issue and sell to Purchaser, 6,965,755 shares of its common stock, par value
$0.01 per share (the "Shares").
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions
hereof, the Purchaser hereby agrees to purchase from Seller, and Seller agrees
to issue and to sell to Purchaser, the Shares at a price per share of $13.25 for
an aggregate purchase amount of ninety two million, two hundred ninety six
thousand eight hundred fifty dollars ($92,296,250) (the "Purchase Price").
2. Representations and Warranties of Purchaser. The Purchaser
represents and warrants that:
(a) Due Authorization. The Purchaser is duly authorized to
purchase the Shares on behalf of each Participating Client. This
Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a legal, valid and binding agreement of the
Purchaser, enforceable against the Purchaser in accordance with its
terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights or remedies of creditors, (ii) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law and the discretion of the court before
which any proceeding therefore may be brought and a requirement that an
effective prospectus be delivered prior to closing.
3. Representations and Warranties of Seller. Seller
represents, warrants and agrees that:
(a) Due Authorization. This Agreement has been duly
authorized, executed and delivered by Seller and constitutes a legal,
valid and binding agreement of Seller, enforceable against Seller in
accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefore may be brought. No
approvals or other authorizations are required in connection with the
Agreement and the issuance of the Shares, other than approvals which
have been obtained.
(b) Organization and Authority. Seller has been duly organized
and is validly existing in good standing under the laws of the State of
Delaware, with full power and authority to own or lease and occupy its
properties and conduct its business as described in the Prospectus
(including the documents incorporated therein by reference).
(c) Issuance of the Shares. The Shares have been duly and
validly authorized, and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable, free of restrictions
upon transferability under federal and state securities laws, and will
be listed, subject to notice of issuance, on the Nasdaq National Market
effective as of the Closing (as defined in Paragraph 5 of this
Agreement).
(d) Absence of Conflicts. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein do not and will not result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Seller.
(e) Effective Registration Statement. There is an effective
registration statement (File No. 333-89132) filed under the Securities
Act of 1933 relating to the Shares and seller will deliver a prospectus
prior to closing and such documents will be filed with the Securities
and Exchange Commission as required under federal securities laws.
4. Conditions to Obligations of the Parties. The obligations
of the parties hereto to effect the transactions contemplated by this Agreement
shall be subject to each of the representations and warranties of the parties
hereto, which shall be true and correct in all respects.
5. Closing. The transactions contemplated hereby shall be
consummated on Wednesday, September 10, 2003 (such time and date of payment and
delivery being herein called the "Closing") and the Shares will be issued in
electronic book entry form on a delivery versus payment basis via the DTC DWAC
System.
6. Governing Law. This Agreement shall be construed in
accordance with and governed by the substantive laws of the State of New York.
7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and may be amended only in a writing that is executed by each of the parties
hereto.
8. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
XM SATELLITE RADIO HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
General Councel and Secretary
By: /s/ Xxxxxxx X. Xxxxxx, III
----------------------------------------
Name: Xxxxxxx X. Xxxxxx, III
Title: CEO
Company: Xxxx Xxxxx Capital Management, Inc.
