Exhibit 4.20
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS WARRANT NOR
SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT AND SUCH LAWS.
SIRIUS SATELLITE RADIO INC.
COMMON STOCK PURCHASE WARRANT
This certifies that, for good and valuable consideration, Sirius Satellite
Radio Inc., a Delaware corporation (the "Company"), grants to DaimlerChrysler
AG, a German corporation ("DCAG"), or registered assigns (together with DCAG,
the "Warrantholder"), the right to subscribe for and purchase from the Company
an aggregate of 4,000,000 validly issued, fully paid and nonassessable shares
(the "Warrant Shares") of the Company's common stock, par value $0.001 per share
(the "Common Stock"), at the purchase price per share of $3.00 (the "Exercise
Price"), at any time and from time to time, during the period from and including
9:00 AM, New York City time, on the date hereof until 5:00 PM, New York City
time, on the date of the termination or expiration (the "Expiration Date") of
the Amended and Restated Agreement among the Company, DaimlerChrysler
Corporation ("DCC"), Freightliner LLC ("Freightliner") and Mercedes-Benz USA,
LLC ("Mercedes" and, together with DCC, Freightliner and their respective
subsidiaries and designated affiliates, "DaimlerChrysler"), all subject to the
terms, conditions and adjustments herein set forth.
Certain capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in Section 10.
Certificate No. DCX-4
Number of Shares: 4,000,000
Name of Warrantholder: DaimlerChrysler AG, a German corporation
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1. Duration and Exercise of Warrant; Limitations on Exercise; Payment of
Taxes.
1.1 Excercisability of Warrant. Subject to the terms and conditions set
forth herein, the right to exercise this Warrant shall vest, and this Warrant
shall become exercisable, as follows:
(a) with respect to 1,000,000 shares of Common Stock, on the date that
there are 250,000 Eligible Vehicles;
(b) with respect to an additional 500,000 shares of Common Stock, on
the date there are 800,000 Eligible Vehicles;
(c) with respect to an additional 500,000 shares of Common Stock, on
the date there are 1,600,000 Eligible Vehicles;
(d) with respect to an additional 1,000,000 shares of Common Stock, on
the date there are 2,400,000 Eligible Vehicles; and
(e) with respect to an additional 1,000,000 shares of Common Stock, on
the date there are 3,200,000 Eligible Vehicles.
The Warrantholder shall have no right to exercise this Warrant with respect to
shares of Common Stock which are not vested and exercisable as described in this
Section 1.1.
1.2 Duration and Exercise of Warrant. Subject to the terms and conditions
set forth herein, including Section 1.1, the Warrant may be exercised, in whole
or in part, by the Warrantholder by:
(a) the surrender of this Warrant to the Company, with a duly executed
Exercise Form specifying the number of Warrant Shares to be purchased,
during normal business hours on any Business Day prior to the Expiration
Date; and
(b) the delivery of payment to the Company, for the account of the
Company, by cash, by certified or bank cashier's check or by wire transfer
of immediately available funds in accordance with wire instructions that
shall be provided by the Company upon request, of the Exercise Price for
the number of Warrant Shares specified in the Exercise Form in lawful money
of the United States of America.
The Company agrees that such Warrant Shares shall be deemed to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for the Warrant Shares as aforesaid.
1.3 Limitations on Exercise. Notwithstanding anything to the contrary
herein, this Warrant may be exercised only upon (i) the delivery to the Company
of any certificates, legal opinions, and other documents reasonably requested by
the Company to satisfy the Company that the proposed exercise of this Warrant
may be effected without registration under the Securities Act, (ii) receipt by
the Company of FCC approval of the proposed exercise, if such approval is
required (as determined by a written opinion of the Company's special FCC
counsel,
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delivered to the Warrantholder) to maintain any license granted to the Company
by the FCC, or to maintain the Company's eligibility for any FCC license for
which it has applied, or reasonably expects to apply, for, (iii) in the event
that the acquisition of the Warrant Shares is subject to the provisions of the
HSR Act, any person or entity required to file a notification and report in
compliance with the HSR Act shall have filed such form and the applicable
waiting period with respect to such form (including any extension thereof by
reason of a request for additional information) shall have expired or been
terminated, and (iv) receipt by the Company of approval of any other applicable
Governmental Authority of the proposed exercise. The Warrantholder shall not be
entitled to exercise this Warrant, or any part thereof, unless and until such
approvals, certificates, legal opinions or other documents are reasonably
acceptable to the Company. The cost of such approvals, certificates, legal
opinions and other documents, if required, shall be borne by the Warrantholder.
1.4 Warrant Shares Certificate. A stock certificate or certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder within five Business Days after receipt of the Exercise Form and
receipt of payment of the purchase price. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant.
1.5 Payment of Taxes. The issuance of certificates for Warrant Shares shall
be made without charge to the Warrantholder for any documentary, stamp or
similar stock transfer or other issuance tax in respect thereto; provided that
the Warrantholder shall be required to pay any and all taxes which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the then Warrantholder as reflected
upon the books of the Company.
1.6 Divisibility of Warrant; Transfer of Warrant. (a) This Warrant may only
be transferred by the Warrantholder with the prior written consent of the
Company; provided that the Warrantholder shall have the right to transfer this
Warrant to any wholly-owned subsidiary of the original Warrantholder. Except as
set forth above, any transfer of this Warrant without the prior written consent
of the Company shall be void and of no force and effect. Except as set forth
above, the Warrantholder expressly agrees not to sell, transfer, assign or
otherwise dispose of any of the Warrant Shares until the first anniversary of
the acquisition of such Warrant Shares pursuant to this Warrant without the
prior written consent of the Company.
(b) Subject to the provisions of this Section, this Warrant may be divided
into warrants of one thousand shares or multiples thereof, upon surrender at the
office of the Company located at 1221 Avenue of the Americas, 36th Floor, New
York, New York 10020, without charge to any Warrantholder. Subject to the
provisions of this Section, upon such division, the Warrants may be transferred
of record as the then Warrantholder may specify without charge to such
Warrantholder (other than any applicable transfer taxes).
(c) Subject to the provisions of this Section 1.6, upon surrender of this
Warrant to the Company with a duly executed Assignment Form and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant or Warrants of like tenor in the name of the assignee named in
such Assignment Form, and this Warrant shall promptly be
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canceled. Prior to any proposed transfer (whether as the result of a division or
otherwise) of this Warrant, the Warrantholder shall give written notice to the
Company of the Warrantholder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and, if requested by the Company, shall be accompanied by a
written opinion of legal counsel, which opinion shall be addressed to the
Company and be reasonably satisfactory in form and substance to the Company, to
the effect that the proposed transfer of this Warrant may be effected without
registration under the Securities Act. In addition to the restrictions contained
in this Section, the Warrantholder shall not be entitled to transfer this
Warrant, or any part thereof, if such legal opinion is not reasonably acceptable
to the Company. The term "Warrant" as used in this Agreement shall be deemed to
include any Warrants issued in substitution or exchange for this Warrant.
2. Restrictions on Transfer; Restrictive Legends.
Except as otherwise permitted by this Section 2, each Warrant shall (and
each Warrant issued upon direct or indirect transfer or in substitution for any
Warrant pursuant to Section 1.6 or Section 4 shall) be stamped or otherwise
imprinted with a legend in substantially the following form:
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THIS WARRANT NOR SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
Except as otherwise permitted by this Section 2, each stock certificate for
Warrant Shares issued upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS
OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a Warrant or a stock certificate for Warrant Shares, in each case without
a legend, if either (i) such Warrant or such Warrant Shares, as the case may be,
have been registered for resale under the Securities Act or (ii) the
Warrantholder has delivered to the Company an opinion of legal counsel, which
opinion shall be addressed to the Company and be reasonably satisfactory in form
and substance to the Company, to the effect that such registration is not
required with respect to such Warrant or such Warrant Shares, as the case may
be.
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By acceptance of this Warrant, the Warrantholder expressly agrees that it
will at all times comply with the restrictions contained in Rule 144(e) under
the Securities Act (as in effect on the date hereof) when selling, transferring
or otherwise disposing Warrant Shares, even if such restrictions would not then
be applicable to the Warrantholder.
3. Reservation and Registration of Shares, Etc. The Company covenants and
agrees as follows:
(a) all Warrant Shares which are issued upon the exercise of this
Warrant will, upon issuance, be validly issued, fully paid, and
nonassessable, not subject to any preemptive rights, and free from all
taxes, liens, security interests, charges, and other encumbrances with
respect to the issue thereof, other than taxes with respect to any transfer
occurring contemporaneously with such issue;
(b) during the period within which this Warrant may be exercised, the
Company will at all times have authorized and reserved, and keep available
free from preemptive rights and any liens and encumbrances, a sufficient
number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant; and
(c) the Company will, from time to time, take all such action as may
be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
4. Loss or Destruction of Warrant. Subject to the terms and conditions
hereof, upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor.
5. Ownership of Warrant. The Company may deem and treat the Person in whose
name this Warrant is registered as the holder and owner hereof (notwithstanding
any notations of ownership or writing hereon made by anyone other than the
Company) for all purposes and shall not be affected by any notice to the
contrary, until presentation of this Warrant for registration of transfer.
6. Certain Adjustments.
6.1 The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) Stock Dividends. If at any time after the date of the issuance of
this Warrant (i) the Company shall fix a record date for the issuance of
any stock dividend payable in shares of Common Stock; or (ii) the number of
shares of Common Stock shall have been increased by a subdivision or
split-up of shares of Common Stock, then, on the record date fixed for the
determination of holders of Common Stock entitled to receive such dividend
or immediately after the effective date of such subdivision or split-up, as
the
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case may be, the number of shares to be delivered upon exercise of this
Warrant shall be increased so that the Warrantholder shall be entitled to
receive the number of shares of Common Stock that such Warrantholder would
have owned immediately following such action had this Warrant been
exercised immediately prior thereto, and the Exercise Price shall be
adjusted as provided below in paragraph (g).
(b) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of the issuance of this Warrant
shall have been decreased by a combination of the outstanding shares of
Common Stock, then, immediately after the effective date of such
combination, the number of shares of Common Stock to be delivered upon
exercise of this Warrant shall be decreased so that the Warrantholder
thereafter shall be entitled to receive the number of shares of Common
Stock that such Warrantholder would have owned immediately following such
action had this Warrant been exercised immediately prior thereto, and the
Exercise Price shall be adjusted as provided below in paragraph (g).
(c) Reorganization, etc. If any capital reorganization of the Company,
any reclassification of the Common Stock, any consolidation of the Company
with or merger of the Company with or into any other Person, or any sale or
lease or other transfer of all or substantially all of the assets of the
Company to any other Person, shall be effected in such a way that the
holders of Common Stock shall be entitled to receive stock, other
securities or assets (whether such stock, other securities or assets are
issued or distributed by the Company or another Person) with respect to or
in exchange for Common Stock, then, upon exercise of this Warrant, the
Warrantholder shall have the right to receive the kind and amount of stock,
other securities or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale, lease or other transfer by
a holder of the number of shares of Common Stock that such Warrantholder
would have been entitled to receive upon exercise of this Warrant had this
Warrant been exercised immediately before such reorganization,
reclassification, consolidation, merger or sale, lease or other transfer,
subject to adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6. The Company
shall not effect any such consolidation, merger or sale, lease or other
transfer, unless prior to, or simultaneously with, the consummation
thereof, the successor Person (if other than the Company) resulting from
such consolidation or merger, or such Person purchasing, leasing or
otherwise acquiring such assets, shall assume, by written instrument, the
obligation to deliver to the Warrantholder the shares of stock, securities
or assets to which, in accordance with the foregoing provisions, the
Warrantholder may be entitled and all other obligations of the Company
under this Warrant. The provisions of this paragraph (c) shall apply to
successive reorganizations, reclassifications, consolidations, mergers,
sales, leasing transactions and other transfers.
(d) Distributions to all Holders of Common Stock. If the Company
shall, at any time after the date of issuance of this Warrant, fix a record
date to distribute to all holders of its Common Stock any shares of capital
stock of the Company (other than Common Stock) or evidences of its
indebtedness or assets (not including regular quarterly cash dividends and
distributions paid from retained earnings of the Company) or rights or
warrants to subscribe for or purchase any of its securities, then the
Warrantholder shall be entitled to receive, upon exercise of this Warrant,
that portion of such distribution to
7
which it would have been entitled had the Warrantholder exercised its
Warrant immediately prior to the date of such distribution. At the time it
fixes the record date for such distribution, the Company shall allocate
sufficient reserves to ensure the timely and full performance of the
provisions of this Subsection. The Company shall promptly (but in any case
no later than five Business Days prior to the record date of such
distribution) give notice to the Warrantholder that such distribution will
take place.
(e) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued to any Warrantholder in connection with the exercise of
this Warrant. Instead of any fractional shares of Common Stock that would
otherwise be issuable to such Warrantholder, the Company shall pay to such
Warrantholder a cash adjustment in respect of such fractional interest in
an amount equal to that fractional interest of the then current Fair Market
Value per share of Common Stock.
(f) Carryover. Notwithstanding any other provision of this Section 6,
no adjustment shall be made to the number of shares of Common Stock to be
delivered to the Warrantholder (or to the Exercise Price) if such
adjustment represents less than 1% of the number of shares to be so
delivered, but any lesser adjustment shall be carried forward and shall be
made at the time and together with the next subsequent adjustment which
together with any adjustments so carried forward shall amount to 1% or more
of the number of shares to be so delivered.
(g) Exercise Price Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of this Warrant is adjusted, as herein
provided, the Exercise Price payable upon the exercise of this Warrant
shall be adjusted by multiplying such Exercise Price immediately prior to
such adjustment by a fraction, of which the numerator shall be the number
of Warrant Shares purchasable upon the exercise of the Warrant immediately
prior to such adjustment, and of which the denominator shall be the number
of Warrant Shares purchasable immediately thereafter.
6.2 Rights Offering. In the event the Company shall effect an offering of
Common Stock or preferred stock among its stockholders, the Warrantholder shall
be entitled to elect to participate in each and every such offering as if this
Warrant had been exercised immediately prior to each such offering. The Company
shall promptly (but in any case no later than five Business Days prior to such
rights offering) give notice to the Warrantholder that such rights offering will
take place. The Company shall not be required to make any adjustment pursuant to
Section 6.1 with respect to the issuance of shares of Common Stock or preferred
stock pursuant to a rights offering in which the holder hereof is offered the
right to participate under the provisions of this Section 6.2, assuming this
Warrant was fully exercisable in accordance with Section 1.1.
6.3 Notice of Adjustments. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly give to the Warrantholder notice of such adjustment or
adjustments and a certificate of a firm of independent public accountants of
recognized national standing (which shall be appointed at the Company's expense
and may be the independent public accountants regularly employed by the Company)
setting forth the number of Warrant Shares and the Exercise Price of such
Warrant
8
Shares after such adjustment, a brief statement of the facts requiring such
adjustment, and the computation by which such adjustment was made.
6.4 Notice of Extraordinary Corporate Events. In case the Company after the
date hereof shall propose to (i) distribute any dividend (whether stock or cash
or otherwise) to the holders of shares of Common Stock or to make any other
distribution to the holders of shares of Common Stock, (ii) offer to the holders
of shares of Common Stock rights to subscribe for or purchase any additional
shares of any class of stock or any other rights or options, or (iii) effect any
reclassification of the Common Stock (other than a reclassification involving
merely the subdivision or combination of outstanding shares of Common Stock),
any capital reorganization, any consolidation or merger (other than a merger in
which no distribution of securities or other property is to be made to holders
of shares of Common Stock), any sale or lease or transfer or other disposition
of all or substantially all of its property, assets and business, or the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to the Warrantholder notice of such proposed action,
which notice shall specify the date on which (a) the books of the Company shall
close, or (b) a record shall be taken for determining the holders of Common
Stock entitled to receive such stock dividends or other distribution or such
rights or options, or (c) such reclassification, reorganization, consolidation,
merger, sale, transfer, other disposition, liquidation, dissolution or winding
up shall take place or commence, as the case may be, and the date, if any, as of
which it is expected that holders of record of Common Stock shall be entitled to
receive securities or other property deliverable upon such action. Such notice
shall be given in the case of any action covered by clause (i) or (ii) above at
least ten days prior to the record date for determining holders of Common Stock
for purposes of receiving such payment or offer, or in the case of any action
covered by clause (iii) above at least 30 days prior to the date upon which such
action takes place and 20 days prior to any record date to determine holders of
Common Stock entitled to receive such securities or other property.
6.5 Effect of Failure to Notify. Failure to file any certificate or notice
or to give any notice, or any defect in any certificate or notice, pursuant to
Sections 6.3 and 6.4 shall not affect the legality or validity of the adjustment
to the Exercise Price, the number of shares purchasable upon exercise of this
Warrant, or any transaction giving rise thereto.
7. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act or any other similar rule or regulation of the SEC that may at
any time permit the Holders to sell securities of the Company to the public
without registration ("Rule 144"), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(c) furnish to each Holder so long as such Holder owns Warrants,
promptly upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and
9
documents so filed by the Company, and (iii) such other information as may
be reasonably requested to permit the Holders to sell such securities
without registration.
8. Amendments. Any provision of this Warrant may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent or
approval of the Company and the Holders who hold a majority in interest of the
Warrants; provided that it is not necessary that the exact form of the amendment
be approved by the holders of a majority in interest of the Warrants if such
holders have approved the substance of such amendment. Any amendment or waiver
effected in accordance with this Section 8 shall be binding upon each Holder and
the Company.
9. Expiration of the Warrant. The obligations of the Company pursuant to
this Warrant shall terminate on the Expiration Date.
10. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Aftermarket Freightliner Receiver" shall mean each Sirius Receiver
equipped to receive the Sirius Service, and not any Competing Service,
which is sold by a Freightliner dealer, Travel Center of America location
or other heavy truck dealer or service center owned, controlled by or
affiliated with Freightliner from time to time.
"Assignment Form" shall mean an instrument of transfer of a warrant in
the form annexed hereto as Exhibit B.
"Board" shall mean the Board of Directors of the Company or any duly
authorized committee thereof.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banks are required or authorized by law to close in The City
of New York, State of New York.
"By-laws" shall mean the Amended and Restated By-laws of the Company,
as the same may be amended and in effect from time to time.
"Certificate of Incorporation" shall mean the Amended and Restated
Certificate of Incorporation of the Company, as the same may be amended and
in effect from time to time.
"Common Stock" shall have the meaning specified on the cover of this
Warrant.
"Company" shall have the meaning specified on the cover of this
Warrant.
"Competing Service" shall mean any satellite digital audio radio
service offered in the continental United States within the frequency range
from 2310 to 2360 megahertz.
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"Contractual Obligation" shall mean as to any Person, any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument to which such Person is a party or by which it or any of its
property is bound.
"DaimlerChrysler" shall have the meaning specified on the cover of
this Warrant.
"DaimlerChrysler Enabled Vehicle" shall mean any vehicle which
contains a Sirius Receiver capable of receiving the Sirius Service, and not
any Competing Service, that was installed in (a) a factory owned or
operated by DaimlerChrysler, any present or future subsidiary of
DaimlerChrysler, or (b) the factory from which DaimlerChrysler or any
present or future subsidiary of DaimlerChrysler acquired such vehicle for
distribution in the United States, or (c) any other service facility
designated in writing by DaimlerChrysler (which may include dealerships as
long as such installation principally results from a program authorized by
DaimlerChrysler).
"DCAG" shall have the meaning specified on the cover of this Warrant.
"DCC" shall have the meaning specified on the cover of this Warrant.
"Eligible Vehicle" means a DaimlerChrysler Enabled Vehicle or any
vehicle containing an Aftermarket Freightliner Receiver.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
similar Federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include a reference to a
comparable section, if any, of any such similar Federal statute.
"Exercise Form" shall mean a request to exercise this Warrant in the
form annexed hereto as Exhibit A.
"Exercise Price" shall have the meaning specified on the cover of this
Warrant.
"Expiration Date" shall have the meaning specified on the cover of
this Warrant.
"Fair Market Value" shall mean, with respect to a share of Common
Stock as of a particular date (the "Determination Date"):
(i) if the Common Stock is registered under the Exchange Act, (a) the
average of the daily closing sales prices of the Common Stock for the 20
consecutive trading days immediately preceding such date, or (b) if the
securities have been registered under the Exchange Act for less than 20
consecutive trading days before such date, then the average of the daily
closing sales prices for all of trading days before such date for which
closing sales prices are available, in the case of each of (a) and (b), as
certified by any Vice President or the Chief Financial Officer of the
Company; or
(ii) if the Common Stock is not registered under the Exchange Act,
then the Fair Market Value shall be as reasonably determined in good faith
by the Board or a duly
11
appointed committee of the Board (which determination shall be reasonably
described in the written notice given to the Warrantholder).
For the purposes of clause (i) of this definition, the closing sales price
for each such trading day shall be: (1) in the case of a security listed or
admitted to trading on any United States national securities exchange or
quotation system, the closing sales price, regular way, on such day, or if
no sale takes place on such day, the average of the closing bid and asked
prices on such day; (2) in the case of a security not then listed or
admitted to trading on any national securities exchange or quotation
system, the last reported sale price on such day, or if no sale takes place
on such day, the average of the closing bid and asked prices on such day,
as reported by a reputable quotation source designated by the Company; (3)
in the case of a security not then listed or admitted to trading on any
national securities exchange or quotation system and as to which no such
reported sale price or bid and asked prices are available, the average of
the reported high bid and low asked prices on such day, as reported by a
reputable quotation service, or a newspaper of general circulation in the
Borough of Manhattan, City and State of New York, customarily published on
each Business Day, designated by the Company, or if there shall be no bid
and asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than 30 days prior
to the date in question) for which prices have been so reported; and (4) if
there are no bid and asked prices reported during the 30 days prior to the
date in question, the Fair Market Value shall be determined as if the
securities were not registered under the Exchange Act
"FCC" shall mean the Federal Communications Commission.
"Freightliner" shall have the meaning specified on the cover of this
Warrant.
"Governmental Authority" shall mean the government of any nation,
state, city, locality or other political subdivision of any thereof, and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government or any
international regulatory body having or asserting jurisdiction over a
Person, its business or its properties.
"Head Unit" shall mean a device, which is integrated in the dashboard
of a vehicle, which provides the user interface for the reception of radio
signals and, in some cases, the playback of recorded media, such as
cassette tapes, compact discs, minidiscs and DVDs.
"Holder(s)" shall mean holder(s) of Warrants.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations of the Federal Trade
Commission thereunder.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), restriction or other
security interest of any kind or nature whatsoever.
12
"Mercedes" shall have the meaning specified on the cover of this
Warrant.
"Nasdaq" shall mean the National Association of Securities Dealers
Automated Quotations System.
"Person" shall mean any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, Governmental Authority or
other entity of any kind.
"Requirement of Law" shall mean, as to any Person, the Certificate of
Incorporation and Bylaws, or other organizational or governing documents,
of such Person, and any law, treaty, rule, regulation, qualification,
license or franchise or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable or binding upon such Person
or any of its property or to which such Person or any of its property is
subject or pertaining to any or all of the transactions contemplated
hereby.
"Rule 144" shall have the meaning specified in Section 7.
"SEC" shall mean the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act or the Exchange
Act, whichever is the relevant statute for the particular purpose.
"Securities Act" shall have the meaning specified on the cover of this
Warrant, or any similar Federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Act, shall include a
reference to the comparable section, if any, of any such similar Federal
statute.
"Sirius Receiver" shall mean (a) a Head Unit which is capable of
receiving and outputting the Sirius signal, either as a result of circuitry
included in the Head Unit itself or as a result of another device and (b)
an antenna capable of receiving the Sirius signal.
"Sirius Service" shall mean the digital audio radio service that the
Company will offer to Sirius Subscribers which will permit such Sirius
Subscribers to receive a multichannel audio service broadcast from
satellites and, in certain instances, terrestrial repeaters.
"Sirius Subscriber" shall mean any person or entity that has agreed to
pay the Company for the right to receive the Sirius Service.
"Subsidiary" shall mean, in respect of any Person, any other Person of
which, at the time as of which any determination is made, such Person or
one or more of its subsidiaries has, directly or indirectly, voting
control.
"Warrantholder" shall have the meaning specified on the cover of this
Warrant.
"Warrant Shares" shall have the meaning specified on the cover of this
Warrant.
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11. No Impairment. The Company shall not by any action, including, without
limitation, amending the Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but shall at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such reasonable actions as may be necessary or appropriate to
protect the rights of the Warrantholder against impairment. Without limiting the
generality of the foregoing, the Company shall (a) take all such actions as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassesable shares of Common Stock upon the exercise of
this Warrant, and (b) provide reasonable assistance to the Warrantholder in
obtaining all authorizations, exemptions or consents from any Governmental
Authority which may be necessary in connection with the exercise of this
Warrant.
12. Miscellaneous.
12.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to the Warrants.
12.2 Binding Effects; Benefits. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the Warrantholders and
their respective heirs, legal representatives, successors and assigns. Nothing
in this Warrant, expressed or implied, is intended to or shall confer on any
Person other than the Company and the Warrantholders, or their respective heirs,
legal representatives, successors or assigns, any rights, remedies, obligations
or liabilities under or by reason of this Warrant.
12.3 Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
12.4 Pronouns. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
12.5 Further Assurances. Each of the Company and the Warrantholder
shall do and perform all such further acts and things and execute and deliver
all such other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Warrant.
12.6 Notices. All notices and other communications required or
permitted to be given under this Warrant shall be in writing and shall be deemed
to have been duly given if (i) delivered personally or (ii) sent by facsimile or
recognized overnight courier or by United States first class certified mail,
postage prepaid, to the parties hereto at the following addresses or to such
other address as any party hereto shall hereafter specify by notice to the other
party hereto:
14
if to the Company, addressed to:
Sirius Satellite Radio Inc.
1221 Avenue of the Americas
36th Floor
New York, New York 10020
Attention: Chief Financial Officer
Telecopy: (212) 584-5353
if to the Warrantholder, addressed to:
DaimlerChrysler AG
c/o DaimlerChrysler Corporation
1000 Chrysler Drive
CIMS 485-14-78
Auburn Hills, Michigan 48326-2766
Attention: Assistant Secretary
Telecopy: (248) 512-1771
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received (a) on the date of delivery thereof, if
delivered personally or sent by facsimile, (b) on the second Business Day
following delivery into the custody of an overnight courier service, if sent by
overnight courier, provided that such delivery is made before such courier's
deadline for next-day delivery, or (c) on the third Business Day after the
mailing thereof.
12.7 Separability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
12.8 Governing Law. This Warrant shall be deemed to be a contract made
under the laws of New York and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to such
agreements made and to be performed entirely within such State.
12.9 No Rights or Liabilities as Stockholder. Nothing contained in
this Warrant shall be deemed to confer upon the Warrantholder any rights as a
stockholder of the Company or as imposing any liabilities on the Warrantholder
to purchase any securities whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
12.10 Representations of the Company. The Company hereby represents
and warrants, as of the date hereof, to the Warrantholder as follows:
15
(a) Corporate Existence and Power. The Company (i) is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware; (ii) has all requisite corporate power
and authority to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is engaged; and
(iii) has the corporate power and authority to execute, deliver and perform
its obligations under this Warrant. The Company is duly qualified to do
business as a foreign corporation in, and is in good standing under the
laws of, each jurisdiction in which the conduct of its business or the
nature of the property owned requires such qualification.
(b) Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company of this Warrant and the
transactions contemplated hereby, including, without limitation, the sale,
issuance and delivery of the Warrant Shares, (i) have been duly authorized
by all necessary corporate action of the Company; (ii) do not contravene
the terms of the Certificate of Incorporation or Bylaws; and (iii) do not
violate, conflict with or result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation of the Company or
any Requirement of Law applicable to the Company. No event has occurred
and no condition exists which, upon notice or the passage of time (or
both), would constitute a default under any indenture, mortgage, deed of
trust, credit agreement, note or other evidence of indebtedness or other
material agreement of the Company or the Certificate of Incorporation or
Bylaws.
(c) Issuance of Warrant Shares. The Warrant Shares have been duly
authorized and reserved for issuance. When issued, such shares will be
validly issued, fully paid and non-assessable, and free and clear of all
Liens and preemptive rights, and the holders thereof shall be entitled to
all rights and preferences accorded to a holder of Common Stock.
(d) Binding Effect. This Warrant has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance or transfer, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity.
16
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
SIRIUS SATELLITE RADIO INC.
By: /s/ Patrick L. Donnelly
------------------------------------
Patrick L. Donnelly
Executive Vice President and
General Counsel
Dated: October 25, 2002
Attest:
By: /s/ Douglas Kaplan
--------------------------
Douglas Kaplan
Assistant Secretary
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Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase __________ shares of Common Stock and
herewith tenders payment for such Common Stock to the order of Sirius Satellite
Radio Inc. in the amount of $__________, which amount includes payment of the
par value for _________ of the Common Stock, in accordance with the terms of
this Warrant. The undersigned requests that a certificate for such shares of
Common Stock be registered in the name of __________________ and that such
certificates be delivered to __________________ whose address is
_____________________________________________________________________.
Dated:
--------------
Signature
-----------------------------
-----------------------------
(Print Name)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
- -----------------------------
1
Exhibit B
FORM OF ASSIGNMENT
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within Warrant
hereby sells, assigns and transfers unto ______________________ the right
represented by such Warrant to purchase ________________ shares of Common Stock
of Sirius Satellite Radio Inc. to which such Warrant relates and all other
rights of the Warrantholder under the within Warrant, and appoints
______________________ Attorney to make such transfer on the books of Sirius
Satellite Radio Inc. maintained for such purpose, with full power of
substitution in the premises. This sale, assignment and transfer has been
previously approved in writing by Sirius Satellite Radio Inc.
Dated:
--------------
Signature
-----------------------------
-----------------------------
(Print Name)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
- -----------------------------