Exhibit 4.21
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 up to 21,500,000 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 $1.04 (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, dated
as of May 13, 2002, 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"), as amended, 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-5
Number of Shares: 21,500,000
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, and so long as DaimlerChrysler is in compliance in all material
respects with the terms and conditions of the Amended and Restated Agreement,
dated as of May 13, 2002, among the Company, DCC, Mercedes and Freightliner, as
amended, supplemented or otherwise modified from time to time (including
pursuant to that certain letter agreement, dated as of April 5, 2004, between
the Company and DCC), the right to exercise this Warrant shall vest, and this
Warrant shall become exercisable as follows:
(a) with respect to 750,000 shares of Common Stock, on the
earlier of (i) June 30, 2004, if DCC has included a one-year
subscription to the Sirius Service as part of the sales price or
leasing cost of every 2005 model year DCC Factory Enabled Vehicle or
(ii) the date on which 250,000 Eligible Vehicles have been produced;
(b) with respect to 750,000 shares of Common Stock, on the earlier
of (i) June 30, 2005, if DCC has included a one-year subscription to
the Sirius Service as part of the sales price or leasing cost of every
2006 model year DCC Factory Enabled Vehicle or (ii) the date on which
250,000 Eligible Vehicles have been produced;
(c) with respect to 2,000,000 shares of Common Stock, on the
earlier of (i) December 31, 2004, if on or before such date DCC has
certified to the Company in writing (which certification shall include
reasonable supporting documentation) that it has commenced factory
installation of Sirius Receivers in production models of 12 of the
following 13 vehicle lines: PT Cruiser, Durango, Ram, Dakota, 300
Series, Sebring/Stratus, Magnum, Grand Cherokee, Liberty, Wrangler,
Caravan, Town & Country and Pacifica or (ii) the date on which 250,000
Eligible Vehicles have been produced;
(d) with respect to 2,500,000 shares of Common Stock, on the
earlier of (i) August 31, 2005, if on or before such date DCC has
delivered, or caused a supplier reasonably acceptable to the Company to
deliver, to the Company an Integrated Head Unit suitable for
commencement of DCC's design verification, and such Integrated Head
Unit has passed the Company's reasonable type acceptance requirements;
provided that if DCC fails to deliver, or fails to cause a supplier
reasonably acceptable to the Company to deliver, such Integrated Head
Unit on or prior to August 31, 2005 solely as a result of the failure
of the Company (or a supplier to the Company) to deliver to DCC, on or
prior to December 31, 2004, a Sirius Standard Module suitable for
commencement of DCC's design verification, then such August 31, 2005
date shall be extended by the number of days such delivery to DCC has
been delayed, or (ii) the date on which 3,200,000 Eligible Vehicles
have been produced;
(e) with respect to 2,500,000 shares of Common Stock, on the
earlier of (i) December 31, 2006, if on or before such date DCC has
commenced, or caused a supplier
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reasonably acceptable to the Company to commence, production of
commercial quantities of an Integrated Head Unit, and such Integrated
Head Unit has passed the Company's reasonable type acceptance
requirements; provided that if DCC fails to commence, or fails to
cause a supplier reasonably acceptable to the Company to commence,
such production on or prior to December 31, 2006 solely as a result of
the failure of the Company (or a supplier to the Company) to deliver
to DCC, on or prior to September 30, 2005, commercial quantities of
the Sirius Standard Module, then such December 31, 2006 date shall be
extended by the number of days such delivery to DCC has been delayed,
or (ii) the date on which 3,200,000 Eligible Vehicles have been
produced;
(f) with respect to 1,500,000 shares of Common Stock, on the
earlier of (i) December 31, 2004, if on or prior to such date, DCC has
shipped 100,000 Bundled DCC Factory Enabled Vehicles to its authorized
dealers or DCC approved "ship-to-points" or (ii) the date on which
250,000 Eligible Vehicles have been produced;
(g) with respect to 2,500,000 shares of Common Stock, on the
earlier of (i) December 31, 2005, if on or prior to such date DCC has
shipped 400,000 Bundled DCC Factory Enabled Vehicles to its authorized
dealers or DCC approved "ship-to-points" or (ii) the date on which
800,000 Eligible Vehicles have been produced;
(h) with respect to 2,500,000 shares of Common Stock, on the
earlier of (i) December 31, 2006, if on or prior to such date DCC has
shipped 700,000 Bundled DCC Factory Enabled Vehicles to its authorized
dealers or DCC approved "ship-to-points" or (ii) the date on which
1,600,000 Eligible Vehicles have been produced;
(i) with respect to 5,000,000 shares of Common Stock, on the
earlier of (i) December 31, 2007, if on or prior to such date DCC has
shipped 1,000,000 Bundled DCC Factory Enabled Vehicles to its
authorized dealers or DCC approved "ship-to-points" or (ii) the date on
which 2,400,000 Eligible Vehicles have been produced; and
(j) with respect to 1,500,000 shares of Common Stock, upon
execution and delivery of an agreement between the Company and
Mitsubishi Motors North America, Inc., in form and substance acceptable
to the Company, pursuant to which, among other things, Mitsubishi
Motors North America, Inc. agrees to factory-install Sirius Receivers
in its vehicles on an exclusive basis.
1.2 Duration and Exercise of Warrant. Subject to the terms and
conditions set forth herein, including Section 1.1, this 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
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(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, 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.
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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 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.
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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.
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. 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) it 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.
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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 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. 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
8
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 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
9
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 is adjusted pursuant to Section 6.1, 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 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
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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
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.
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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.
"Bundled DCC Factory Enabled Vehicle" shall mean any DCC Factory
Enabled Vehicle that includes a one-year prepaid subscription to the
Sirius Service.
"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.
"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
12
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.
"DCC Factory Enabled Vehicle" shall mean any DCC vehicle that
contains a Sirius Receiver that was installed in a factory owned or
operated by DCC or any present or future subsidiary of DCC.
"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 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
13
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.
"Integrated Head Unit" shall mean a Head Unit which is capable of
receiving and outputting the Sirius Service, and all related textual
data, as a result of circuitry contained in the Head Unit.
14
"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.
"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 Chip Set" shall mean the generation 2.5 set of integrated
circuits (including the Northstar baseband and combined tuner chip)
capable of receiving, decoding, decompressing and outputting the Sirius
Service.
"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 offers to Sirius Subscribers which permits such Sirius
Subscribers to receive a multichannel audio service broadcast from
satellites and, in certain instances, terrestrial repeaters.
15
"Sirius Standard Module" shall mean a device manufactured by Ki
Ryung Electronics Co., Ltd. or Wistron NeWeb Corporation that contains
a Sirius Chip Set and, when integrated into a Head Unit, enables such
Head Unit to receive and output the Sirius Service and all related
textual data.
"Sirius Subscriber" shall mean any person or entity that pays 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.
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.
16
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:
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
17
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:
(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.
18
(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.
19
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: June 3, 2004
Attest:
By: /s/ Douglas Kaplan
-----------------------------
Douglas Kaplan
Assistant Secretary
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:
_____________________________
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:
_____________________________