SEC Info - XM Satellite Radio Holdings Inc - ‘8-K’ for 4/12/02

SEC Info℠

Home

Help

Please Sign In

XM Satellite Radio Holdings Inc – ‘8-K’ for 4/12/02 – EX-1.1

On: Friday, 4/12/02 · For: 4/12/02 · Accession #: 928385-2-1453 · File #: 0-27441

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/12/02  XM Satellite Radio Holdings Inc   8-K:5,7     4/12/02    4:81K                                    Donnelley R R & S… 09/FA

Current Report — Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         4     13K 
 2: EX-1.1      Underwriting Agreement                                22    106K 
 3: EX-5.1      Opinion re: Legality                                   3     16K 
 4: EX-23.1     Consent of Experts or Counsel                          1      5K

EX-1.1 — Underwriting Agreement
Exhibit Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (Word, et al.) Underwriter
1	1st Page - Filing Submission
19	Underwriter

EX-1.1 1st Page of 22 TOC ↑Top Previous Next ↓Bottom Just 1st
 
 13,387,000 shares

XM Satellite Holdings Inc.

Class A Common Stock; par value $.01 per share

UNDERWRITING AGREEMENT
----------------------

                                                                  April 11, 2002

Morgan Stanley & Co. Incorporated                                               
Merrill Lynch, Pierce, Fenner & Smith Incorporated                              
Credit Suisse First Boston Corporation                                          
Deutsche Bank Securities Inc.                                                   
As Representatives of the Several Underwriters                                  
c/o Morgan Stanley & Co. Incorporated,                                          
1585 Broadway                                                                   
New York, NY  10036                                                             

Dear Sirs:                                                                      

       1.   Introductory. XM Satellite Holdings Inc., a Delaware corporation
("Company"), proposes to issue and sell to the several Underwriters named in    
Schedule A hereto (the "Underwriters") 13,387,000 shares of its Class A common  
stock, par value $.01 per share (the "Firm Shares") and also proposes to issue  
and sell to the Underwriters, at the option of the Underwriters, up to an       
additional 2,008,050 shares of its Class A common stock (the "Additional        
Shares"). The Firm Shares and the Additional Shares are herein collectively     
called the "Shares." The Company hereby agrees with the Underwriters as follows:

 2.   Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:             

      (a) The Company has filed with the Securities and Exchange
      Commission (the "Commission") a shelf registration statement on Form
         S-3 (No. 333-47570), including a prospectus, relating to the Shares and
  the registration statement has been declared effective under the
Securities Act of 1933 ("Act"). The Company has filed with the
 Commission a registration statement on Form S-3 (No. 333-85804)
pursuant to Rule 462(b) of the Act (the "462(b) Registration  
    Statement") and the 462(b) Registration Statement became effective
      under the Act upon such filing. The shelf registration statement, at
     the time it was declared effective by the Commission, including all
        material incorporated by reference therein, and as supplemented by the
  462(b) Registration Statement, is hereinafter referred to as the
      "Registration Statement." The form of prospectus, as included in the
Registration Statement, including all material incorporated by
 reference in such prospectus, is hereinafter referred to as the
         "Prospectus." The prospectus supplement relating to the Shares as first
   filed with the Commission pursuant to and in accordance with Rule
         424(b) ("Rule 424(b)") under the Act, is hereinafter referred to as the
      "Prospectus Supplement." No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.            

EX-1.1 2nd Page of 22 TOC 1st Previous Next ↓Bottom Just 2nd
             (b) The Registration Statement, the 462(b) Registration Statement
    and the Prospectus, at the time the Registration Statement and the
         462(b) Registration Statement was declared effective by the Commission,
      (i) conformed in all respects to the requirements of the Act and the
       rules and regulations of the Commission ("Rules and Regulations") and
         (ii) did not include any untrue statement of a material fact or omit to
       state any material fact required to be stated therein or necessary to
         make the statements therein not misleading. The Registration Statement,
      the 462(b) Registration Statement and the Prospectus, on the date of
       this Agreement, conforms, and at the time of filing of the Prospectus
     Supplement pursuant to Rule 424(b), the Registration Statement, the
  462(b) Registration Statement, the Prospectus and the Prospectus
         Supplement will conform, in all respects to the requirements of the Act
        and the Rules and Regulations, and neither of such documents includes,
       or will include, any untrue statement of a material fact or omits, or
        will omit, to state any material fact required to be stated therein or
  necessary to make the statements therein not misleading. The two
         preceding sentences do not apply to statements in or omissions from the
Registration Statement, the 462(b) Registration Statement, the
        Prospectus or the Prospectus Supplement based upon written information
   furnished to the Company by the Underwriters specifically for use
        therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof.             

             (c) Each preliminary prospectus filed as part of the Registration
       Statement as originally filed or as part of any amendment thereto, or
         filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act and the applicable Rules and   
Regulations.                                                  

         (d) The Company has been duly incorporated and is an existing
       corporation in good standing under the laws of the State of Delaware,
      with power and authority (corporate and other) to own its properties
         and conduct its business as described in the Prospectus Supplement; and
       the Company is duly qualified to do business as a foreign corporation
 and is in good standing in all other jurisdictions in which its
        ownership or lease of property or the conduct of its business requires
such qualification.                                           

             (e) Each subsidiary of the Company has been duly incorporated and
   is an existing corporation in good standing under the laws of the
        jurisdiction of its incorporation, with power and authority (corporate
        and other) to own its properties and conduct its business as described
     in the Prospectus Supplement; and each subsidiary of the Company is
       duly qualified to do business as a foreign corporation and is in good
        standing in all other jurisdictions in which its ownership or lease of
      property or the conduct of its business requires such qualification;
   all of the issued and outstanding shares of capital stock of each
       subsidiary of the Company has been duly authorized and validly issued
    and is fully paid and nonassessable; and are owned by the Company,
directly or through subsidiaries, free and clear from liens,  
encumbrances, defects equities or claims.                     

              (f) The Shares have been duly authorized and reserved for issuance
     and, when issued and delivered in accordance with the terms of this
      Agreement, will be validly issued, fully paid and nonassessable, and
      the issuance of such Shares will not be subject to any preemptive or
similar rights.                                               

          (g) The authorized capital stock of the Company conforms as to
       legal matters to the description thereof contained in the Prospectus.

             (h) The shares of Class A common stock, par value $.01 per share,
       of the Company (the "Common Stock") outstanding prior to the issuance
       of the Shares have been duly authorized and are validly issued, fully
paid and non-assessable.                                      

2 

EX-1.1 3rd Page of 22 TOC 1st Previous Next ↓Bottom Just 3rd
              (i) Except as disclosed in the Prospectus Supplement, there are no
     contracts, agreements or understandings between the Company and any
         person that would give rise to a valid claim against the Company or any
    Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.                     

              (j) Except as described in the Prospectus Supplement, there are no
     contracts, agreements or understandings between the Company and any
        person granting such person the right to require the Company to file a
        registration statement under the Act with respect to any securities of
   the Company owned or to be owned by such person or to require the
 Company to include such securities in the securities registered
 pursuant to a Registration Statement or in any securities being
      registered pursuant to any other registration statement filed by the
Company under the Act.                                        

             (k) The Shares have been approved for listing on the Nasdaq Stock
Market's National Market subject to notice of issuance.       

              (l) No consent, approval, authorization, or order of, or filing or
     qualification with, any governmental agency or body or any court is
        required for the consummation of the transactions contemplated by this
         Agreement in connection with the issuance and sale of the Shares by the
         Company or the performance by the Company of its obligations under this
         Agreement, except such as have been obtained and made under the Act and
such as may be required under state securities laws.          

              (m) The execution, delivery and performance of this Agreement, and
       the issuance and sale of the Shares and compliance with the terms and
      provisions hereof will not result in a breach or violation of any of
 the terms and provisions of, or constitute a default under, any
      statute, rule or regulation, or any judgment, order or decree of any
       governmental agency or body or any court, domestic or foreign, having
       jurisdiction over the Company or any subsidiary of the Company or any
        of their properties, or any agreement or other instrument to which the
      Company or any such subsidiary is a party or by which the Company or
       any such subsidiary is bound or to which any of the properties of the
         Company or any such subsidiary is subject, or the charter or by-laws of
        the Company or any such subsidiary, and the Company has full power and
      authority to authorize, issue and sell the Shares as contemplated by
this Agreement.                                               

     (n) This Agreement has been duly authorized, executed and
delivered by the Company.                                     

             (o) Except as disclosed in the Prospectus Supplement, the Company
 and its subsidiaries have good and marketable title to all real
       properties and all other properties and assets owned by them, in each
      case free from liens, encumbrances and defects that would materially
       affect the value thereof or materially interfere with the use made or
       to be made thereof by them; and except as disclosed in the Prospectus
      Supplement, the Company and its subsidiaries hold any leased real or
         personal property under valid and enforceable leases with no exceptions
         that would materially interfere with the use made or to be made thereof
by them.                                                      

 (p) The Company and its subsidiaries possess adequate
         certificates, authorities or permits issued by appropriate governmental
      agencies or bodies necessary to conduct the business now operated by
      them and have not received any notice of proceedings relating to the
         revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its    
      subsidiaries, would individually or in the aggregate have a material
 adverse effect on the condition (financial or other), business,
         properties or results of operations of the Company and its subsidiaries
taken as a whole ("Material Adverse Effect").                 

 3

EX-1.1 4th Page of 22 TOC 1st Previous Next ↓Bottom Just 4th
         (q) No labor dispute with the employees of the Company or any
         subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.                         

            (r) The Company and its subsidiaries own, possess or can acquire
        on reasonable terms, adequate trademarks, trade names and other rights
        to inventions, know-how, patents, copyrights, confidential information
       and other intellectual property (collectively, "intellectual property
     rights") necessary to conduct the business now operated by them, or
 presently employed by them, and have not received any notice of
         infringement of or conflict with asserted rights of others with respect
      to any intellectual property rights that, if determined adversely to
      the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.                     

             (s) Except as disclosed in the Prospectus Supplement, the Company
 and its subsidiaries are not in violation of any statute, rule,
         regulation, decision or order of any governmental agency or body or any
         court, domestic or foreign, relating to the use, disposal or release of
        hazardous or toxic substances or waste, pollutants or contaminants, or
     relating to the environment or human exposure to hazardous or toxic
        substances (collectively, "environmental laws"), do not own or operate
      any real property contaminated with any substance that is subject to
    any environmental laws, are not liable for any cost or liabilities
       associated with environmental laws, including without limitation, any
        off-site disposal or contamination pursuant to any environmental laws,
     are not subject to any claim relating to any environmental laws and
         have received all permits, licenses or other approvals required of them
 under applicable environmental laws to conduct their respective
       businesses and are in compliance with the terms and conditions of any
   such permit, license or approval, which violation, contamination,
  liability or claim would individually or in the aggregate have a
      Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.               

              (t) Except as disclosed in the Prospectus Supplement, there are no
         pending actions, suits or proceedings against or affecting the Company,
        any of its subsidiaries or any of their respective properties that, if
       determined adversely to the Company or any of its subsidiaries, would
     individually or in the aggregate have a Material Adverse Effect, or
     would materially and adversely affect the ability of the Company to
      perform its obligations under this Agreement, or which are otherwise
         material in the context of the sale of the Shares or which are required
        to be described in the Registration Statement or Prospectus Supplement
         and are not so described; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.      

      (u) The financial statements included in each Registration
      Statement and the Prospectus Supplement present fairly the financial
     position of the Company and its consolidated subsidiaries as of the
    dates shown and their results of operations and cash flows for the
    periods shown, and such financial statements have been prepared in
     conformity with the generally accepted accounting principles in the
         United States applied on a consistent basis; and the schedules included
        in each Registration Statement present fairly the information required
to be stated therein.                                         

           (v) Except as disclosed in the Prospectus Supplement, since the
 date of the latest audited financial statements included in the
      Prospectus Supplement there has been no material adverse change, nor
   any development or event involving a prospective material adverse
    change, in the condition (financial or other), earnings, business,
         properties or results of operations of the Company and its subsidiaries
      taken as a whole, and, except as disclosed in or contemplated by the
      Prospectus Supplement, there has been no dividend or distribution of
    any kind declared, paid or made by the Company on any class of its
capital stock.                                                

 4

EX-1.1 5th Page of 22 TOC 1st Previous Next ↓Bottom Just 5th
           (w) The Company is not and, after giving effect to the offering
       and sale of the Shares and the application of the proceeds thereof as
    described in the Prospectus Supplement, will not be an "investment
company" as defined in the Investment Company Act of 1940.    

       (x) The statistical and market-related data included in the
      Prospectus Supplement are based on or are derived from sources which
  the Company believes to be reliable and accurate in all material
respects.                                                     

     3.   Purchase, Sale and Delivery of the Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the 
terms and conditions herein set forth, the Company agrees to sell to the        
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, the Shares at a purchase price of $10.95375 per share (the    
"Purchase Price").                                                              

         The Company will deliver against payment of the purchase price the Firm
Shares in the form of one or more permanent global Securities in definitive form
(the "Firm Global Securities") deposited with The Depository Trust Company      
("DTC") and registered in the name of Cede & Co., as nominee for DTC, with any  
transfer taxes payable in connection with the transfer of the Firm Shares to the
Underwriters duly paid. Interests in any permanent global Securities will be    
held only in book-entry form through DTC, except in the limited circumstances   
described in the Prospectus Supplement. Payment for the Firm Shares shall be    
made by the Underwriters in Federal (same day) funds by official bank check or  
checks or wire transfer to an account at a bank acceptable to Morgan Stanley &  
Co. Incorporated ("Morgan Stanley") drawn to the order of XM Satellite Radio    
Holdings, Inc. at the office of Latham & Watkins, 885 Third Avenue, New York, NY
10022 at 10:00 A.M., (New York time), on April 17, 2002, or at such other time  
not later than seven full business days thereafter as Morgan Stanley determines,
such time being herein referred to as the "Closing Date," against delivery to   
DTC of the Global Securities representing all of the Shares. The Global         
Securities will be made available for checking at the above office of Latham &  
Watkins at least 24 hours prior to the Closing Date.                            

       In addition, the Company hereby grants to the Underwriters the option
to purchase up to 2,008,050 Additional Shares at the same purchase price per    
share to be paid by the Underwriters to the Company for the Firm Shares as set  
forth in this Section 3, for the sole purpose of covering over-allotments in the
sale of Firm Shares by the Underwriters. This option may be exercised at any    
time, in whole or in part, on or before the thirtieth day following the date of 
the Prospectus Supplement, by written notice by the Underwriters to the Company.
Such notice shall set forth the aggregate number of Additional Shares as to     
which the option is being exercised and the date and time, as reasonably        
determined by the Underwriters, when the Additional Shares are to be delivered  
(such date and time being herein sometimes referred to as the "Additional       
Closing Date"); provided, however, that the Additional Closing Date shall not be
--------  -------                               
earlier than the Closing Date or earlier than the second full business day after
the date on which the option shall have been exercised nor later than the eighth
full business day after the date on which the option shall have been exercised. 
Global securities for the Additional Shares shall be registered in such name or 
names and in such authorized denominations as the Underwriters may request in   
writing at least two full business days prior to the Additional Closing Date.   
The Company will permit the Underwriters to examine and package such global     
securities for delivery at least one full business day prior to the Additional  
Closing Date.                                                                   

     Payment for the Additional Shares shall be made by wire transfer in
same day funds each payable to the order of the Company at the office of Latham 
& Watkins, 885 Third Avenue, Suite 1000, New York, New York, 10022, or such     
other location as may be mutually acceptable, upon delivery of the certificates 
for the Additional Shares to the Underwriters.                                  

       4.   Offering by Underwriters. It is understood that the Underwriters
propose to offer the Shares for sale to the public as set forth in the          
Prospectus Supplement.                                                          

 5

EX-1.1 6th Page of 22 TOC 1st Previous Next ↓Bottom Just 6th
     5.   Certain Agreements of the Company. The Company agrees with the
Underwriters that:                                                              

        (a) The Company will file the Prospectus Supplement with the
       Commission pursuant to and in accordance with subparagraph (1) or (2)
         (as consented to by the Underwriters) of Rule 424(b) not later than the
  second business day following the execution and delivery of this
        Agreement) (or, if applicable and if consented to by the Underwriters,
    subparagraph (4) or (5)). The Company will advise the Underwriters
promptly of any such filing pursuant to Rule 424(b).          

        (b) The Company will advise the Underwriters promptly of any
   proposal to amend or supplement the Registration Statement or the
  Prospectus and will not effect such amendment or supplementation
         without the Underwriters' consent; and the Company will also advise the
Underwriters promptly of the effectiveness of the Registration
       Statement and of any amendment or supplementation of the Registration
         Statement or the Prospectus and of the institution by the Commission of
         any stop order proceedings in respect of the Registration Statement and
    will use its best efforts to prevent the issuance of any such stop
 order and to obtain as soon as possible its lifting, if issued.

           (c) If, at any time when a prospectus relating to the Shares is
        required to be delivered under the Act in connection with sales by the
       Underwriters or any dealer, any event occurs or condition exists as a
      result of which the Prospectus as then amended or supplemented would
     include an untrue statement of a material fact or omit to state any
         material fact necessary to make the statements therein, in the light of
        the circumstances under which they were made, not misleading, or if it
 is necessary at any time to amend the Prospectus to comply with
      applicable law, the Company will promptly notify the Underwriters of
  such event or condition and will promptly prepare, file with the
     Commission and furnish, at its own expense, to the Underwriters and
     dealers to which Shares may have been sold and to any other dealers
 upon request an amendment or supplement which will correct such
statement or omission or an amendment which will effect such  
      compliance. The Underwriters' consent to, and their delivery of, any
      such amendment or supplement shall not constitute a waiver of any of
the conditions set forth in Section 6.                        

           (d) As soon as practicable, but not later than the Availability
       Date (as defined below), the Company will make generally available to
         its securityholders an earnings statement covering a period of at least
  12 months beginning after the Effective Date of the Registration
       Statement (or, if later, the date of any prospectus supplement) which
  will satisfy the provisions of Section 11(a) of the Act. For the
       purpose of the preceding sentence, "Availability Date" means the 45th
     day after the end of the fourth fiscal quarter following the fiscal
        quarter that includes such Effective Date, except that, if such fourth
  fiscal quarter is the last quarter of the Company's fiscal year,
     "Availability Date" means the 90th day after the end of such fourth
fiscal quarter.                                               

             (e) The Company will furnish to the Underwriters, without charge,
         copies of the Registration Statement (three (3) copies of which will be
 signed and will include all exhibits), each related preliminary
     prospectus supplement, and, so long as a prospectus relating to the
     Shares is required to be delivered under the Act in connection with
        sales by the Underwriters or any dealer, the Prospectus Supplement and
        all amendments and supplements to such documents, in each case in such
         quantities as the Underwriters request. The Prospectus Supplement shall
 be so furnished on or prior to 3:00 P.M., New York time, on the
        business day following the later of the execution and delivery of this
    Agreement or the Effective Time of the Registration Statement. All
         other documents shall be so furnished as soon as available. The Company
        will pay the expenses of printing and distributing to the Underwriters
all such documents.                                           

            (f) The Company will arrange for the qualification of the Shares
    for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the                   

 6

EX-1.1 7th Page of 22 TOC 1st Previous Next ↓Bottom Just 7th
        Underwriters designate and will continue such qualifications in effect
so long as required for the distribution.                     

           (g) During the period of five years hereafter, the Company will
      furnish to the Underwriters, as soon as practicable after the end of
        each fiscal year, a copy of its annual report to stockholders for such
       year; and the Company will furnish to the Underwriters (i) as soon as
        available, a copy of each report and any definitive proxy statement of
         the Company filed with the Commission under the Securities Exchange Act
     of 1934 or mailed to stockholders, and (ii) from time to time, such
  other information concerning the Company as the Underwriters may
reasonably request.                                           

              (h) Whether or not the transactions contemplated in this Agreement
    are consummated, the Company will pay all expenses incident to the
        performance of its obligations under this Agreement, including (i) the
   fees, disbursements and expenses of the Company's counsel and the
        Company's accountants in connection with the registration and delivery
of the Shares under the Act and all other fees or expenses in 
connection with the preparation and filing of the Registration
  Statement, any preliminary prospectus supplement, the Prospectus
    Supplement and amendments and supplements to any of the foregoing,
       including all printing costs associated therewith, (ii) all costs and
    expenses related to the transfer and delivery of the Shares to the
      Underwriters, including any transfer or other taxes payable thereon,
  (iii) for any filing fees and other expenses (including fees and
        disbursements of counsel) incurred in connection with qualification of
 the Shares for sale under the laws of such jurisdictions as the
        Underwriters designate and the printing of memoranda relating thereto,
 (iv) all filing fees incurred in connection with the review and
         qualification of the offering of the Shares by the National Association
     of Securities Dealers, Inc., (v) all costs and expenses incident to
    listing the Shares on the Nasdaq National Market, (vi) the cost of
    printing certificates representing the Shares, (vii) the costs and
         charges of any trustee, transfer agent, registrar or depositary, (viii)
     any expenses of the Company in connection with attending or hosting
     meetings with prospective purchasers of the Shares and for expenses
     incurred in distributing preliminary prospectus supplements and the
 Prospectus Supplement (including any amendments and supplements
   thereto) to the Underwriters, (ix) for any travel expenses of the
       Company's officers and employees and (x) all other costs and expenses
         incident to the performance of the obligations of the Company hereunder
 for which provision is not otherwise made in this Section 5(i).

            (i) For a period of 90 days after the date of the initial public
       offering of the Shares, the Company will not offer, sell, contract to
       sell, pledge or otherwise dispose of, directly or indirectly, or file
         with the Commission a registration statement under the Act relating to,
any shares of Common Stock or securities convertible into or  
         exchangeable or exercisable for any shares of Common Stock, or publicly
disclose the intention to make any such offer, sale, pledge,  
    disposition or filing, without the prior written consent of Morgan
     Stanley, except issuances of shares of Common Stock pursuant to the
         conversion or exchange of convertible or exchangeable securities or the
       exercise of warrants or options, in each case outstanding on the date
       hereof, grants of employee stock options pursuant to the terms of the
       employee stock option plan or talent stock plan in effect on the date
        hereof, grants of options or warrants to outside vendors from the pool
authorized by the Board of Directors as of the date hereof, or
      issuances of shares of Common Stock pursuant to the exercise of such
options.                                                      

     6.   Conditions of the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase and pay for the Shares on the       
Closing Date will be subject to the accuracy of the representations and         
warranties on the part of the Company herein, to the accuracy of the statements 
of Company officers made pursuant to the provisions hereof, to the performance  
by the Company of its obligations hereunder and to the following additional     
conditions precedent:                                                           

 7

EX-1.1 8th Page of 22 TOC 1st Previous Next ↓Bottom Just 8th
             (a) The Underwriters shall have received a letter, dated the date
      of delivery thereof (which, shall be on or prior to the date of this
     Agreement), of KPMG LLP confirming that they are independent public
        accountants within the meaning of the Act and the applicable published
  Rules and Regulations thereunder and stating to the effect that:

                (i)  in their opinion the financial statements and schedules
               examined by them and included in the Registration Statement
                  comply as to form in all material respects with the applicable
                accounting requirements of the Act and the related published
Rules and Regulations;                      

          (ii) on the basis of a reading of the latest available
             interim financial statements of the Company, inquiries of
                  officials of the Company who have responsibility for financial
                  and accounting matters and other specified procedures, nothing
             came to their attention that caused them to believe that:

                               (A) at the date of the latest available
                     balance sheet read by such accountants, or at a
                   subsequent specified date not more than three
                        business days prior to the date of this Agreement,
                      there was any change in the capital stock or any
                           increase in short-term indebtedness or long-term debt
                          of the Company and its consolidated subsidiaries or,
                       at the date of the latest available balance sheet
                         read by such accountants, there was any decrease in
                       consolidated net current assets or net assets, as
                       compared with amounts shown on the latest balance
                     sheet included in the Prospectus Supplement; or

                                   (B) for the period from the closing date of
                 the latest income statement included in the
                      Prospectus Supplement to the closing date of the
                    latest available income statement read by such
                       accountants there were any decreases, as compared
                        with the corresponding period of the previous year
                           and with the period of corresponding length ended the
                         date of the latest income statement included in the
                           Prospectus Supplement, in consolidated net sales, net
                         operating income, in the total or per share amounts
                        of consolidated income before extraordinary items,
                     net income or in the ratio of earnings to fixed
charges;                  

                  except in all cases set forth in clauses (A) and (B) above for
        changes, increases or decreases which the Prospectus
                Supplement discloses have occurred or may occur or which are
described in such letter; and               

         (iii) they have compared specified dollar amounts (or
           percentages derived from such dollar amounts) and other
                 financial information contained in the Registration Statement
         (in each case to the extent that such dollar amounts,
                percentages and other financial information are derived from
         the general accounting records of the Company and its
                  subsidiaries subject to the internal controls of the Company's
                  accounting system or are derived directly from such records by
           analysis or computation) with the results obtained from
               inquiries, a reading of such general accounting records and
                 other procedures specified in such letter and have found such
                  dollar amounts, percentages and other financial information to
          be in agreement with such results, except as otherwise
specified in such letter.                   

All financial statements and schedules included in material   
   incorporated by reference into the Prospectus Supplement shall be
    deemed included in the Registration Statement for purposes of this
subsection.                                                   

 8

EX-1.1 9th Page of 22 TOC 1st Previous Next ↓Bottom Just 9th
               (b)  The Registration Statement and the 462(b) Registration
     Statement shall have become effective and the Prospectus Supplement
        shall have been filed with the Commission in accordance with the Rules
   and Regulations and Section 5(a) of this Agreement. Prior to such
 Closing Date, no stop order suspending the effectiveness of the
      Registration Statement shall have been issued and no proceedings for
     that purpose shall have been instituted or, to the knowledge of the
       Company or the Underwriters, shall be contemplated by the Commission.

         (c)  Subsequent to the execution and delivery of this
 Agreement, there shall not have occurred (i) any change, or any
       development or event involving a prospective change, in the condition
    (financial or other), earnings, business, properties or results of
        operations of the Company and its subsidiaries taken as a whole which,
       in your judgment, is material and adverse and makes it impractical or
      inadvisable to proceed with completion of the public offering or the
   sale of and payment for the Shares or (ii) any downgrading in the
 rating of any debt securities of the Company by any "nationally
         recognized statistical rating organization" (as defined for purposes of
      Rule 436(g) under the Act), or any public announcement that any such
      organization has under surveillance or review its rating of any debt
     securities of the Company (other than an announcement with positive
        implications of a possible upgrading, and no implication of a possible
downgrading, of such rating).                                 

               (d)  The Underwriters shall have received an opinion, dated
        such Closing Date, of Hogan & Hartson, counsel for the Company, to the
effect that:                                                  

                 (i)    Each of the Company, XM Satellite Radio Inc., XM Radio
                Inc. ("XM Radio") and XM Innovations Inc. ("XM
                         Innovations") was incorporated, and is validly existing
                      and in good standing, under the laws of the State of
                    Delaware. Each of XM Equipment Leasing L.L.C. ("XM
               Equipment") and XM 1500 Eckington L.L.C. ("XM
                        Eckington") was organized, and is validly existing and
                         in good standing. Each of the Company, XM Satellite, XM
                      Radio and XM Innovations has the corporate power and
                      corporate authority under the Company Certificate of
                Incorporation, the XM Satellite Certificate of
            Incorporation, the XM Radio Certificate of
                     Incorporation and the XM Innovations Certificate of
                       Incorporation, respectively, and the Delaware General
                       Corporation Law to own, lease and operate its current
                        properties and to conduct its business as described in
                        the Prospectus Supplement. Each of XM Equipment and XM
                        Eckington have the limited liability company power and
                  limited liability company authority under the XM
                         Equipment Certificate of Formation and the XM Equipment
                       Operating Agreement, and the XM Eckington Certificate
                        of Formation and the XM Eckington Operating Agreement,
                      respectively, and the Delaware LLC Act to own, lease
                       and operate its current properties and to conduct its
                         business as described in the Prospectus Supplement. The
                      Company, XM Radio and XM Eckington are authorized to
                  transact business as foreign corporations in the
                     District of Columbia. XM Satellite is authorized to
                   transact business as a foreign corporation in the
                       District of Columbia, the State of Florida, the State
               of Michigan and the Commonwealth of Virginia.

              (ii)   All shares of capital stock of the Company shown as
                     issued and outstanding on an actual basis under the
                       caption "Capitalization" in the Prospectus Supplement
                  are duly authorized and, assuming the receipt of
                      consideration therefor as provided in resolutions of
                       the Company's Board of Directors authorizing issuance
             thereof, are validly issued, fully paid and
                       nonassessable and were not issued in violation of any
                        statutory preemptive rights under the Delaware General
                       Corporation Law or, to our knowledge, any contractual
                       right to subscribe for any of the Shares. The capital

 9

EX-1.1 10th Page of 22 TOC 1st Previous Next ↓Bottom Just 10th
                stock conforms in all material respects to the
                       description thereof set forth in the Prospectus under
             the caption "Description of Capital Stock."

              (iii)  All of the issued and outstanding shares of capital
                      stock of XM Satellite have been duly authorized and,
                   assuming the receipt of consideration therefor as
                    provided in resolutions of XM Satellite's Board of
                     Directors authorizing issuance thereof, are validly
                       issued, fully paid and nonassessable, were not issued
                       in violation of any statutory preemptive rights under
                 the Delaware General Corporation Law or, to our
                       knowledge, any contractual right to subscribe for any
                         of such shares, and are owned of record by the Company.

              (iv)   All of the issued and outstanding shares of capital
                  stock of XM Radio have been duly authorized and,
                   assuming the receipt of consideration therefor as
                     provided in the organizational actions taken by the
                    sole incorporator of XM Radio authorizing issuance
             thereof, are validly issued, fully paid and
                    nonassessable, were not issued in violation of any
                        statutory preemptive rights under the Delaware General
                       Corporation Law or, to our knowledge, any contractual
                    right to subscribe for any of such shares, and are
  owned of record by XM Satellite.

              (v)    All of the issued and outstanding shares of capital
                        stock of XM Innovations have been duly authorized and,
                   assuming the receipt of consideration therefor as
                     provided in the organizational actions taken by the
                 sole incorporator of XM Innovations authorizing
                      issuance thereof, are validly issued, fully paid and
                    nonassessable, were not issued in violation of any
                        statutory preemptive rights under the Delaware General
                       Corporation Law or, to our knowledge, any contractual
                    right to subscribe for any of such shares, and are
  owned of record by XM Satellite.

              (vi)   All of the issued and outstanding limited liability
                     interests of XM Equipment have been duly authorized
                        and, assuming the receipt of consideration therefor as
                     provided in the organizational actions taken by the
                  sole member of XM Equipment authorizing issuance
                 thereof, are validly issued, were not issued in
                        violation of any statutory preemptive rights under the
                        Delaware LLC Act or, to our knowledge, any contractual
                      right to subscribe for any of such limited liability
                     interests, and are owned of record by XM Satellite.

              (vii)  All of the issued and outstanding limited liability
                     interests of XM Eckington have been duly authorized
                        and, assuming the receipt of consideration therefor as
                     provided in the organizational actions taken by the
                  sole member of XM Eckington authorizing issuance
                 thereof, are validly issued, were not issued in
                        violation of any statutory preemptive rights under the
                        Delaware LLC Act or, to our knowledge, any contractual
                      right to subscribe for any of such limited liability
                    interests, and are owned of record by the Company.

                 (viii) To our knowledge, none of the Company or any of the XM
                     Subsidiaries have issued any outstanding securities
                      convertible into or exchangeable for, or outstanding
                     options, warrants or other rights to purchase or to
                        subscribe for, any shares of stock or other securities
               of the Company or any of the XM Subsidiaries,
                     respectively, except as described in the Prospectus
                       Supplement (other than options issued pursuant to the
                  Company's 1998 Shares Award Plan, Employee Stock
        Purchase Plan and Talent Option Plan).

10

EX-1.1 11th Page of 22 TOC 1st Previous Next ↓Bottom Just 11th
            (ix)   The Company has the corporate power and corporate
            authority under the Company Certificate of
                        Incorporation and the Delaware General Corporation Law
                       to execute, deliver and perform as of the date hereof
                        its obligations under this Agreement and to consummate
                  the transactions contemplated by this Agreement,
                   including, without limitation, to issue, sell and
                        deliver the Shares as provided therein. When issued in
                       accordance with the provisions of this Agreement, the
               Shares will be validly issued, fully paid and
                      nonassessable under the Delaware General Corporation
                       Law, will not be issued in violation of any statutory
              preemptive rights under the Delaware General
                       Corporation Law or, to our knowledge, any contractual
                         right to subscribe for such shares and will be free and
                  clear of any liens or encumbrances and statutory
restrictions.                 

                (x)    This Agreement has been duly authorized, executed and
     delivered on behalf of the Company.

                 (xi)   The Registration Statement and the 462(b) Registration
                      Statement have become effective under the Securities
                        Act, the required filings of the Prospectus Supplement
                     pursuant to Rule 424(b) promulgated pursuant to the
                        Securities Act have been made in the manner and within
                     the time period required by Rule 424(b) and, to our
                       knowledge, no stop order suspending the effectiveness
                of the Registration Statement or suspending or
                     preventing the use of the Prospectus Supplement has
                      been issued and no proceedings for that purpose have
                      been instituted or are threatened by the Commission.

              (xii)  The Registration Statement, the 462(b) Registration
                     Statement, Prospectus and the Prospectus Supplement
                     (except for the financial statements and supporting
                       schedules included therein, as to which we express no
                     opinion) comply as to form in all material respects
                     with the requirements of the Securities Act and the
              applicable rules and regulations thereunder.

              (xiii) The execution, delivery and performance on the date
                hereof by the Company of the Agreement and the
                         consummation by the Company of the transactions therein
                      contemplated (including the issuance and sale of the
                       Shares) do not (a) violate the Company Certificate of
                Incorporation or Company Bylaws, (b) breach or
                      constitute a default under any agreement or contract
                        filed as an exhibit to the Registration Statement, (c)
                      to our knowledge, violate any Applicable Law, or any
                      order, judgment or decree applying Applicable Law of
                        any federal or State of Delaware court or governmental
                      or regulatory authority having jurisdiction over the
                     Company, any of the XM Subsidiaries or any of their
                respective properties or assets, or (d) to our
                  knowledge, result in the imposition of a lien or
                         encumbrance on any property or assets of the Company or
                         any of the XM Subsidiaries, except for such violations,
                  breaches, defaults or impositions referred to in
                        clauses (b), (c) and (d) of this Paragraph (xiii) that
                   (X) would not, singly or in the aggregate, have a
                     Material Adverse Effect or (Y) are disclosed in the
Prospectus Supplement.        

               (xiv)  No approval or consent of, or registration or filing
                     with, any federal or State of Delaware governmental
                        agency, court, or regulatory authority (other than the
                         Federal Communications Commission or any state or local
                     communications authority, as to which we express no
                         opinion) having jurisdiction over the Company under any
                      Applicable Law is required to be obtained or made by
                        the Company in connection with the execution, delivery
         and performance (including the issuance

11

EX-1.1 12th Page of 22 TOC 1st Previous Next ↓Bottom Just 12th
                      and sale of the Shares) as of the date hereof by the
                     Company of the Agreement, except (a) such as may be
                required under federal securities statutes and
                        regulations (certain matters with respect to which are
               addressed elsewhere in this opinion) or state
                        securities or blue sky statutes and regulations (as to
                     which we express no opinion), (b) such as have been
                obtained or made or have been disclosed in the
                   Prospectus Supplement or (c) where the failure to
                         obtain such consents or waivers would not, singly or in
                the aggregate, have a Material Adverse Effect.

           (xv)   None of the Company or the XM Subsidiaries is an
                      "investment company," as such term is defined in the
             Investment Company Act of 1940, as amended.

         (xvi)  Except as set forth in the Agreement or in the
                       Prospectus Supplement, to our knowledge, there are no
                         holders of any securities of the Company who, by reason
                     of the execution, delivery or performance as of the
                       date hereof by the Company of the Agreement, have the
                      right to request or demand that the Company register
                   under the Securities Act securities held by them.

                 (xvii) The information in the Prospectus Supplement under the
                         following captions (or, as applicable, certain portions
                        of such information as indicated below), to the extent
                     that such information constitutes matters of law or
                    legal conclusions, or purports to describe certain
                         provisions of specified documents, has been reviewed by
                    us, and is correct in all material respects: "Risk
              Factors--Large payment obligations under our
                        distribution agreement with General Motors may prevent
                       us from becoming profitable" and the second paragraph
                       of "Shareholders' Agreement" contained under "Certain
             Capital Stock and Stockholder Information."

             During the course of the preparation of the
                        Registration Statement, we participated in conferences
                         with officers and other representatives of the Company,
                   with representatives of the independent certified
                         public accountants of the Company and with you and your
                  representatives. While we have not undertaken to
                   determine independently, and we do not assume any
                    responsibility for, the accuracy, completeness, or
                fairness of the statements in the Registration
                         Statement or Prospectus Supplement, we may state on the
                  basis of these conferences and our activities as
               counsel to the Company in connection with the
                       Registration Statement that no facts have come to our
                   attention which cause us to believe that: (i) the
                         Registration Statement, at the time it became effective
                   and at the time the 462(b) Registration Statement
                      became effective, contained an untrue statement of a
                   material fact or omitted to state a material fact
                        required to be stated therein or necessary to make the
                statements therein not misleading, or that the
                     Prospectus Supplement, as of its date and as of the
                         date hereof, contains an untrue statement of a material
                     fact or omits to state a material fact necessary in
                      order to make the statement therein, in the light of
                   the circumstances under which they were made, not
                      misleading, (ii) there are any legal or governmental
                       proceedings pending or threatened against the Company
                       or any of the XM Subsidiaries that are required to be
                disclosed in the Registration Statement or the
                   Prospectus Supplement, other than those disclosed
                         therein, or (iii) there are any contracts, or documents
                of a character required to be described in the
                        Registration Statement or the Prospectus Supplement or
                       to be filed as exhibits to the Registration Statement
                     that are not described or referred to therein or so
                         filed; provided that in making the foregoing statements
                        -------- ---- (which shall not constitute an opinion),
                     we are not expressing any views as to the financial
                         statements and supporting schedules and other financial
information                   

12

EX-1.1 13th Page of 22 TOC 1st Previous Next ↓Bottom Just 13th
                        included in or omitted from the Registration Statement
or the Prospectus Supplement. 

                   (e)  The Underwriters shall have received from ShawPittman,
         counsel for the Company, such opinion or opinions, dated such Closing
    Date, in form and substance satisfactory to the Underwriters and
     counsel to the Underwriters, to the effect set forth in Exhibit A
hereto.                                                     

               (f)  The Underwriters shall have received from Latham &
          Watkins, counsel for the Underwriters, such opinion or opinions, dated
        such Closing Date, with respect to the incorporation of the Company,
  the validity of the Shares delivered on such Closing Date, the
  Registration Statement, the 462(b) Registration Statement, the
         Prospectus and other related matters as the Underwriters may require,
          and the Company shall have furnished to such counsel such documents as
   they request for the purpose of enabling them to pass upon such
matters.                                                    

                (g)  The Underwriters shall have received a certificate,
         dated such Closing Date, of the President or any Vice President and a
          principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable   
          investigation, shall state that: the representations and warranties of
       the Company in this Agreement are true and correct; the Company has
         complied with all agreements and satisfied all conditions on its part
      to be performed or satisfied hereunder at or prior to such Closing
        Date; no stop order suspending the effectiveness of any Registration
      Statement has been issued and no proceedings for that purpose have
          been instituted or are contemplated by the Commission; and, subsequent
          to the dates of the most recent financial statements in the Prospectus
  Supplement, there has been no material adverse change, nor any
         development or event involving a prospective material adverse change,
         in the condition (financial or other), earnings, business, properties
         or results of operations of the Company and its subsidiaries taken as
    a whole except as set forth in or contemplated by the Prospectus
Supplement or as described in such certificate.             

                 (h)  The Underwriters shall have received a letter, dated
  such Closing Date, of KPMG LLP which meets the requirements of
  subsection (a) of this Section, except that the specified date
          referred to in such subsection will be a date not more than three days
   prior to such Closing Date for the purposes of this subsection.

           (i)  On or prior to the date of this Agreement, the
    Underwriters shall have received lockup letters from each of the
  executive officers and directors of the Company of the Company
          identified on Schedule I attached hereto and from certain stockholders
identified on Schedule II attached hereto.                  

The Company will furnish the Underwriters with such conformed copies of such    
opinions, certificates, letters and documents as the Underwriters reasonably    
request.                                                                        

        7.  Indemnification and Contribution. (a) The Company will indemnify
and hold harmless the Underwriters, its partners, directors and officers and    
each person, if any, who controls the Underwriters within the meaning of Section
15 of the Act or Section 20 of the Securities and Exchange Act of 1934, as      
amended, against any losses, claims, damages or liabilities, joint or several,  
to which the Underwriters may become subject, under the Act or otherwise,       
insofar as such losses, claims, damages or liabilities (or actions in respect   
thereof) arise out of or are based upon any untrue statement or alleged untrue  
statement of any material fact contained in any Registration Statement, the     
Prospectus Supplement, or any amendment or supplement thereto, or any related   
preliminary prospectus supplement, or arise out of or are based upon the        
omission or alleged omission to state therein a material fact required to be    
stated therein or necessary to make the statements therein not misleading, and  
will reimburse the Underwriters for any legal or other expenses reasonably      
incurred by the Underwriters in connection with investigating or defending any  
such                                                                            

13

EX-1.1 14th Page of 22 TOC 1st Previous Next ↓Bottom Just 14th
loss, claim, damage, liability or action as such expenses are incurred;         
provided, however, that the Company will not be liable in any such case to the  
extent that any such loss, claim, damage or liability arises out of or is based 
upon an untrue statement or alleged untrue statement in or omission or alleged  
omission from any of such documents in reliance upon and in conformity with     
written information furnished to the Company by the Underwriters specifically   
for use therein, it being understood and agreed that the only such information  
furnished by the Underwriters consists of the information described as such in  
subsection (b) below.                                                           

     (b) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company, its directors and officers and each person, if any   
who controls the Company within the meaning of Section 15 of the Act or Section 
20 of the Securities and Exchange Act of 1934, as amended, against any losses,  
claims, damages or liabilities to which the Company may become subject, under   
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement 
or alleged untrue statement of any material fact contained in any Registration  
Statement, the Prospectus Supplement, or any amendment or supplement thereto, or
any related preliminary prospectus supplement, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required  
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement  
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the 
Underwriters specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or 
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information         
furnished by the Underwriters consists of the following information in the      
Prospectus Supplement furnished on behalf of the Underwriters: the concession   
and reallowance figures appearing in the third paragraph under the caption      
"Underwriting" and the information contained in the sixth paragraph under the   
caption "Underwriting."                                                         

       (c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a  
claim in respect thereof is to be made against the indemnifying party under     
subsection (a) or (b) above, notify the indemnifying party of the commencement  
thereof; but the omission so to notify the indemnifying party will not relieve  
it from any liability which it may have to any indemnified party otherwise than 
under subsection (a) or (b) above. In case any such action is brought against   
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to 
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such      
indemnified party (who shall not, except with the consent of the indemnified    
party, be counsel to the indemnifying party), and after notice from the         
indemnifying party to such indemnified party of its election so to assume the   
defense thereof, the indemnifying party will not be liable to such indemnified  
party under this Section for any legal or other expenses subsequently incurred  
by such indemnified party in connection with the defense thereof other than     
reasonable costs of investigation, unless (i) the indemnifying party and the    
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties) 
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or     
potential differing interests between them. It is understood that the           
indemnifying party shall not, in respect of the legal expenses of any           
indemnified party in connection with any proceeding or related proceedings in   
the same jurisdiction, be liable for the fees and expenses of more than one     
separate firm (in addition to any local counsel) for all such indemnified       
parties and that all such fees and expenses shall be reimbursed as they are     
incurred. No indemnifying party shall, without the prior written consent of the 
indemnified party, effect any settlement of any pending or threatened action in 
respect of which any indemnified party is or could have been a party and        
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from 
all liability on any claims that are the subject matter of such action and (ii) 
does not                                                                        

14

EX-1.1 15th Page of 22 TOC 1st Previous Next ↓Bottom Just 15th
include a statement as to, or an admission of, fault, culpability or a failure  
to act by or on behalf of an indemnified party.                                 

        (d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or   
(b) above, then each indemnifying party, in lieu of indemnifying such           
indemnified party, shall contribute to the amount paid or payable by such       
indemnified party as a result of the losses, claims, damages or liabilities     
referred to in subsection (a) or (b) above (i) in such proportion as is         
appropriate to reflect the relative benefits received by the Company on the one 
hand and the Underwriters on the other from the offering of the Shares or (ii)  
if the allocation provided by clause (i) above is not permitted by applicable   
law, in such proportion as is appropriate to reflect not only the relative      
benefits referred to in clause (i) above but also the relative fault of the     
Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or       
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the    
other shall be deemed to be in the same proportion as the total net proceeds    
from the offering of the Shares (before deducting expenses) received by the     
Company and the total underwriting discounts and commissions received by the    
Underwriters bear to the aggregate public offering price of the Shares. The     
relative fault shall be determined by reference to, among other things, whether 
the untrue or alleged untrue statement of a material fact or the omission or    
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge, access 
to information and opportunity to correct or prevent such untrue statement or   
omission. The Company and the Underwriters agree that it would not be just or   
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of   
the equitable considerations referred to in this Section 7(d). The amount paid  
by an indemnified party as a result of the losses, claims, damages or           
liabilities referred to in the first sentence of this subsection (d) shall be   
deemed to include any legal or other expenses reasonably incurred by such       
indemnified party in connection with investigating or defending any action or   
claim which is the subject of this subsection (d). Notwithstanding the          
provisions of this subsection (d), no Underwriter shall be required to          
contribute any amount in excess of the amount by which the total discounts, fees
and commissions received by such Underwriter exceeds the amount of any damages  
which such Underwriter has otherwise been required to pay by reason of such     
untrue or alleged untrue statement or omission or alleged omission. No person   
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of  
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this        
subsection (d) to contribute are several in proportion to their respective      
purchase obligations and not joint.                                             

         (e) The obligations of the Company under this Section are not exclusive
and shall not limit any rights or remedies which may otherwise be available to  
any indemnified party at law or in equity and shall be in addition to any       
liability which the Company may otherwise have and shall extend, upon the same  
terms and conditions, to each person, if any, who controls the Underwriters     
within the meaning of the Act; and the obligations of the Underwriters under    
this Section shall be in addition to any liability which the Underwriters may   
otherwise have and shall extend, upon the same terms and conditions, to each    
director of the Company, to each officer of the Company who has signed a        
Registration Statement and to each person, if any, who controls the Company     
within the meaning of the Act.                                                  

       8.  Default of Initial Purchasers. If any Underwriter or Underwriters
default in their obligations to purchase Shares hereunder and the number of     
Shares that such defaulting Underwriter or Underwriters agreed but failed to    
purchase does not exceed 10% of the total number of Shares, Morgan Stanley may  
make arrangements satisfactory to the Company for the purchase of such Shares by
other persons, including any of the Underwriters, but if no such arrangements   
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase 
the Shares that such defaulting Underwriters agreed but failed to purchase. If  
any Underwriter or Underwriters so default and the aggregate number of Shares   
with respect to which such                                                      

15

EX-1.1 16th Page of 22 TOC 1st Previous Next ↓Bottom Just 16th
default or defaults occur exceeds 10% of the total number of Shares and         
arrangements satisfactory to Morgan Stanley and the Company for the purchase of 
such Shares by other persons are not made within 36 hours after such default,   
this Agreement will terminate without liability on the part of any              
non-defaulting Underwriter or the Company, except as provided in Section 9. As  
used in this Agreement, the term "Underwriter" includes any person substituted  
for an Underwriter under this Section. Nothing herein will relieve a defaulting 
Underwriter from liability for its default.                                     

         9.  Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any          
investigation, or statement as to the results thereof, made by or on behalf of  
the Underwriters, the Company or any of their respective representatives,       
officers or directors or any controlling person, and will survive delivery of   
and payment for the Shares. If this Agreement is terminated pursuant to Section 
8 or if for any reason the purchase of the Shares by the Underwriters is not    
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the    
Company and the Underwriters pursuant to Section 7 shall remain in effect, and  
if any Shares have been purchased hereunder the representations and warranties  
in Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Shares by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to      
Section 8 or the occurrence of any event specified in clause (iii), (iv) or (v) 
of Section 6(c), the Company will reimburse the Underwriters for all            
out-of-pocket expenses (including fees and disbursements of counsel) reasonably 
incurred by them in connection with the offering of the Shares.                 

    10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company at any time at or prior to the Closing Date, 
if (a) after the execution and delivery of this Agreement and prior to each     
Closing Date (i) there shall have occurred any change, or any development or    
event involving a prospective change, in the condition (financial or other),    
earnings, business, properties or results of operations of the Company and its  
subsidiaries taken as a whole which, in your judgment, is material and adverse, 
(ii) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock      
Exchange, the National Association of Securities Dealers, Inc., the Chicago     
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board 
of Trade, (iii) trading of any securities of the Company shall have been        
suspended or materially limited on any exchange or in any over-the-counter      
market, (iv) a material disruption in securities settlement, payment or         
clearance services in the United States shall have occurred, (v) a general      
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (vi) there shall have        
occurred any change in financial markets in the United States or in the         
international financial markets, any outbreak of hostilities or escalation      
thereof or any other calamity or crisis that, in your judgment, is material and 
adverse and (b) in the case of any of the events specified in clauses 10(a)(i)  
through 10(a)(vi), such event, singly or together with any other such event,    
makes it, in your judgment, impracticable or inadvisable to market the Shares or
to enforce contracts for the sale of the Shares on the terms and in the manner  
contemplated in the Prospectus Supplement.                                      

      11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Underwriters, c/o Morgan Stanley & Co. Incorporated at Morgan Stanley &  
Co. Incorporated, 1585 Broadway, New York, NY 10036, Attention: Equity Capital  
Markets Syndicate Desk, telecopy number: (212) 761-0538, or, if sent to the     
Company, will be mailed, delivered or telegraphed and confirmed to it at 1500   
Eckington Place N.E., Washington DC 20002, Attention: Chief Financial Officer,  
telecopy number: (202) 380-4500; provided, however, that any notice to the      
Underwriters pursuant to Section 7 will be mailed, delivered or telegraphed and 
confirmed to the Underwriters.                                                  

16

EX-1.1 17th Page of 22 TOC 1st Previous Next ↓Bottom Just 17th
    12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other    
person will have any right or obligation hereunder.                             

   13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such     
counterparts shall together constitute one and the same Agreement.              

        14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to        
principles of conflicts of laws.                                                

        15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of    
this Agreement.                                                                 

     The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in 
any suit or proceeding arising out of or relating to this Agreement or the      
transactions contemplated hereby.                                               

17

EX-1.1 18th Page of 22 TOC 1st Previous Next ↓Bottom Just 18th
        If the foregoing is in accordance with the Underwriters' understanding
of our agreement, kindly sign and return to the Company one of the counterparts 
hereof, whereupon it will become a binding agreement between the Company and the
Underwriters in accordance with its terms.                                      

                   Very truly yours,

                                           XM SATELLITE RADIO HOLDINGS, INC.

                                                  By:___________________________
                               Name:
                                Title:

The foregoing Underwriting Agreement is hereby                                  
confirmed and accepted as of the date first                                   
above written.                                                                

Morgan Stanley & Co. Incorporated,                                    

By:_______________________________                                    
Name:                                                           
Title:                                                          

Acting on behalf of itself and as the                                 
Representative of the several Underwriters                            

EX-1.1 19th Page of 22 TOC 1st Previous Next ↓Bottom Just 19th
SCHEDULE A

                                                                Number of Shares

                                                               -----------

Underwriter                                         
-----------                                         

Morgan Stanley & Co. Incorporated ........................                      

Merrill Lynch, Pierce, Fenner & Smith Incorporated .......                      

Credit Suisse First Boston Corporation ...................                      

Deutsche Bank Securities Inc. ............................                      

                                                                 -----------
              Total ...................................         13,387,000

 2

EX-1.1 20th Page of 22 TOC 1st Previous Next ↓Bottom Just 20th
 EXHIBIT A

Form of Opinion of ShawPittman

              1.   Except as set forth in the Prospectus Supplement, (i) the FCC
has granted XM Satellite Radio Holdings Inc. (the "Company") all material       
                             -------
authorizations needed to construct, launch, and operate a satellite radio       
service and offer a subscription service on a non-common carrier basis, and (ii)
the FCC has assigned XM two orbital locations at 85 degrees W.L. and 105 degrees
W.L. for XM Radio's two satellites and the frequency band 2332.5-2345 MHz to    
provide such satellite radio service.                                           

           2.   Except for such FCC consents, approvals, authorizations or
orders that have already been obtained, no material consent, approval,          
authorization or order of the FCC is required to be obtained by the Company or  
its subsidiaries under the Communications Laws for the consummation of the      
transactions contemplated under the Underwriting Agreement, except that, from   
time to time, the Company and its subsidiaries may be required to obtain certain
authorizations that would be required in the ordinary course of business.       

              3.   The execution and delivery of the Underwriting Agreement, and
the consummation of the transactions contemplated thereunder, by the Company do 
not and will not violate any material provision of the Communications Laws.     

            4.   The statements set forth in the Prospectus Supplement under
the captions "Risk Factors --Failure to comply with FCC requirements could      
damage our business," "Risk Factors--If the challenge to our FCC license is     
successful, our business could be harmed" and "Business--Regulatory Matters,"   
insofar as such statements constitute a summary of material (a) legal matters,  
(b) documents, or (c) proceedings under the Communications laws, fairly present 
the information contained under such captions in light of the circumstances in  
which they were made.                                                           

         5.   Except as set forth in the Prospectus Supplement, to our
knowledge, there is no investigation or complaint before the FCC pending or     
threatened in writing that is specifically directed against or in respect of the
Company or its subsidiaries, or any of the FCC licenses held by the Company or  
its subsidiaries that would reasonably be expected to result in the revocation  
of any material FCC authorizations or otherwise to materially impair the        
operations of the Company or its subsidiaries.                                  

 3

EX-1.1 21st Page of 22 TOC 1st Previous Next ↓Bottom Just 21st
SCHEDULE I

Officers and Directors

Stephen Cook                                                                    

Nathaniel Davis                                                                 

Thomas R. Donohue                                                               

Steven P. Gavenas                                                               

Chet Huber                                                                      

Randall T. Mays                                                                 

Gary M. Parsons                                                                 

Hugh Panero                                                                     

Dr. Stelios Patsiokas                                                           

Pierce J. Roberts, Jr.                                                          

Jack Shaw                                                                       

Dr. Rajendra Singh                                                              

Joseph M. Titlebaum                                                             

 4

EX-1.1 Last Page of 22 TOC 1st Previous Next ↓Bottom Just 22nd
 SCHEDULE II

Stockholders

AEA XM Investor I LLC                                                           

AEA XM Investors II LLC                                                         

Clear Channel Investments, Inc.                                                 

Columbia XM Radio Partners L.L.C.                                               

DIRECTV Enterprises, Inc.                                                       

General Motors Corporation                                                      

Madison Dearborn Capital Partners III, L.P.                                     

Madison Dearborn Special Equity III, L.P.                                       

Special Advisors Fund I, LLC                                                    

Telecom-XM Investors, L.L.C.                                                    

 5

EX-1.1	1st Page of 22	TOC	↑Top	Previous	Next	↓Bottom	Just 1st

EX-1.1	2nd Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 2nd

EX-1.1	3rd Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 3rd

EX-1.1	4th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 4th

EX-1.1	5th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 5th

EX-1.1	6th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 6th

EX-1.1	7th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 7th

EX-1.1	8th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 8th

EX-1.1	9th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 9th

EX-1.1	10th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 10th

EX-1.1	11th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 11th

EX-1.1	12th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 12th

EX-1.1	13th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 13th

EX-1.1	14th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 14th

EX-1.1	15th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 15th

EX-1.1	16th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 16th

EX-1.1	17th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 17th

EX-1.1	18th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 18th

EX-1.1	19th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 19th

EX-1.1	20th Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 20th

EX-1.1	21st Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 21st

EX-1.1	Last Page of 22	TOC	1st	Previous	Next	↓Bottom	Just 22nd

Dates Referenced Herein and Documents Incorporated by Reference

		Referenced-On Page
This ‘8-K’ Filing	Date	First	Last	Other Filings

	4/17/02	5
Filed on / For Period End:	4/12/02			424B5
	4/11/02	1
				List all Filings

↑Top

Filing Submission 0000928385-02-001453 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

XM Satellite Radio Holdings Inc – ‘8-K’ for 4/12/02 – EX-1.1

On: Friday, 4/12/02 · For: 4/12/02 · Accession #: 928385-2-1453 · File #: 0-27441

Previous ‘8-K’: ‘8-K’ on 4/8/02 for 4/5/02 · Next: ‘8-K’ on / for 8/2/02 · Latest: ‘8-K’ on 1/6/10 for 12/31/09

Current Report — Form 8-KFiling Table of Contents

EX-1.1 — Underwriting AgreementExhibit Table of Contents

Dates Referenced Herein and Documents Incorporated by Reference

Current Report — Form 8-K
Filing Table of Contents

EX-1.1 — Underwriting Agreement
Exhibit Table of Contents