As filed with the Securities and Exchange Commission on September 10, 2010 Registration No. 333-

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

SIRIUS XM RADIO INC.

(Exact name of registrant as specified in its charter)

Delaware		52-170027
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

1221 Avenue of the Americas, 36th Floor
New York, New York 10020
(212) 584-5100
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

SIRIUS XM RADIO 401(k) SAVINGS PLAN
(Full title of the Plan)

Patrick L. Donnelly
Executive Vice President, General Counsel and Secretary
Sirius XM Radio Inc.
1221 Avenue of the Americas
36th Floor
New York, New York 10020
(212) 584-5100
(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:
Gary L. Sellers
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer þ		Accelerated filer o		Non-accelerated filer o		Smaller reporting company o
				(Do not check if smaller reporting company)

Title of securities to be

Amount to be

Proposed maximum

Proposed maximum

Amount of

registered (1)

Registered (2)

offering price per share (3)

aggregate offering price (3)

registration fee

Common Stock, par value $0.001 per share

2,750,000

$1.00

$2,750,000

$196.01

 

 

INTRODUCTION

     This Registration Statement on Form S-8 is filed by Sirius XM Radio Inc., a Delaware corporation (the “Company”), to register an additional 2,750,000 shares of the Company’s common stock, par value of $0.001 per share and an indeterminate number of plan interests, issuable under the Sirius XM Radio 401(k) Savings Plan (the “Plan”). Pursuant to General Instruction E to Form S-8, the Company incorporates by reference into this Registration Statement the entire contents of its earlier Registration Statements on Form S-8, File Nos. 333-166699; 333-158156; 333-156441; 333-149186, 333-142726; 333-139214; 333-133277; 333-125118; 333-119479; 333-111221; 333-106020; 333-101515; 333-100083; 333-81914; 333-74752; 333-62818; 333-47954 and 333-65473 relating to the Plan, except that the provisions contained in Part II of such earlier registration statements are modified as set forth in this Registration Statement.

PART II

INFORMATION REQUIRED IN REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference

     The following documents filed by the Company and the Plan with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

	1.		The Company’s Annual Report on Form 10-K for the year ended December 31, 2009;
	2.		The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010 and June 30, 2010;
	3.		The Plan’s Annual Report on Form 11-K for the year ended December 31, 2009;
	4.		The Company Current Reports on Form 8-K dated January 15, 2010; March 18, 2010; March 19, 2010 and June 1, 2010; and
	5.		The description of the Company’s common stock contained in the Company’s Registration Statement on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended.

     All other documents filed by the Company or the Plan with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 5. Interests of Named Experts and Counsel

     Patrick L. Donnelly, Esq., whose legal opinion with respect to the securities registered hereunder is filed as Exhibit 5 hereto, is an employee of the Company and participates in the Plan and other benefit plans established by the Company.

Item 8. Exhibits

     For a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference.

     The Company has submitted the Plan to the Internal Revenue Service (the “IRS”). The Company hereby undertakes to submit any amendments thereto to the IRS in a timely manner and has made or will make all changes required by the IRS in order to qualify the Plan under Section 401 of the Internal Revenue Code.

SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on September 10, 2010.

POWER OF ATTORNEY

     KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Patrick L. Donnelly and Ruth A. Ziegler, and each of them, his or her true and lawful agent, proxy and attorney-in-fact, each acting alone with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, and (iii) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact, any of them or any of his, her or their substitutes may lawfully do or cause to be done by virtue thereof.

     Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated:

Signatures		Title		Date
/s/ Mel Karmazin   Mel Karmazin		Chief Executive Officer (Principal Executive Officer) and Director		September 10, 2010
/s/ David J. Frear   David J. Frear		Executive Vice President and Chief Financial Officer (Principal Financial Officer)		September 10, 2010
/s/ Thomas Barry   Thomas Barry		Senior Vice President and Corporate Controller (Principal Accounting Officer)		September 10, 2010

Signatures		Title		Date
/s/ Eddy W. Hartenstein   Eddy W. Hartenstein		Chairman of the Board of Directors		September 10, 2010
/s/ Joan L. Amble   Joan L. Amble		Director		September 10, 2010
/s/ Leon D. Black   Leon D. Black		Director		September 10, 2010
/s/ David J. A. Flowers   David J.A. Flowers		Director		September 10, 2010
/s/ Lawrence F. Gilberti   Lawrence F. Gilberti		Director		September 10, 2010
/s/ James P. Holden   James P. Holden		Director		September 10, 2010
/s/ Gregory B. Maffei   Gregory B. Maffei		Director		September 10, 2010
/s/ John C. Malone   John C. Malone		Director		September 10, 2010
/s/ James F. Mooney   James F. Mooney		Director		September 10, 2010
/s/ Jack Shaw   Jack Shaw		Director		September 10, 2010

SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, as amended, the trustees (or other persons who administer the employee benefits plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on September 10, 2010.

INDEX TO EXHIBITS

Exhibit
No.
4.1		Amended and Restated Certificate of Incorporation of the Company, dated March 4, 2003 (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2002).
4.2		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated July 28, 2008 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated August 1, 2008).
4.3		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated December 18, 2008 (incorporated by reference to Exhibit 3.3 to the Company’s Registration Statement on Form S-3 dated December 30, 2008).
4.4		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Company, dated May 29, 2009 (incorporated by reference to Exhibit 4.4 to the Company’s Registration Statement on Form S-8 dated July 1, 2009).
4.5		Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001).
4.6		Certificate of Amendment of the Amended and Restated By-laws of the Company, dated July 28, 2008 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K dated August 1, 2008).
4.7		Form of certificate for shares of Common Stock (incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-1 (File No. 33-74782)).
4.8		Rights Agreement, dated as of April 29, 2009, between the Company and The Bank of New York Mellon, as Rights Agent, (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K dated on April 29, 2009).
4.9		Sirius XM Radio 401(k) Savings Plan, as amended and restated effective January 1, 2009 (incorporated by reference to Exhibit 10.30 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2009).
5		Opinion of Patrick L. Donnelly, Esq., Executive Vice President, General Counsel and Secretary of the Company.*
23.1		Consent of Independent Registered Public Accounting Firm.*
23.2		Consent of Independent Registered Public Accounting Firm.*

Exhibit
No.
23.3		Consent of Patrick L. Donnelly, Esq., Executive Vice President, General Counsel and Secretary of the Company (included in Exhibit 5).*
24		Power of Attorney (included as part of the signature pages to this Registration Statement).*