CD RADIO INC.
(a Delaware Corporation)
3,000,000 Shares of Common Stock
TERMS AGREEMENT
---------------
September 23, 1999
To: CD Radio Inc.
1221 Avenue of the Americas, 36th Fl.
New York, NY 10020
Ladies and Gentlemen:
This is a Terms Agreement referenced in the Form Underwriting Agreement
filed as an Exhibit to Registration Statement No. 333-86003, the terms of which
are hereby incorporated herein. We understand that CD Radio Inc., a Delaware
corporation (the "Company"), proposes to issue and sell 3,000,000 shares of its
common stock, par value $.001 per share (the "Underwritten Securities"). Subject
to the terms and conditions set forth or incorporated by reference herein, we
the underwriters named below (the "Underwriters") offer to purchase, severally
and not jointly, the number of Underwritten Securities opposite our names set
forth below at the purchase price set forth below, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any Underwritten
Securities or Option Underwritten Securities are purchased.
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Number of
Underwritten
Underwriter Securities
- ----------- ----------
Merrill Lynch, Pierce, Fenner & Smith Incorporated....................... 870,000
Lehman Brothers Inc...................................................... 870,000
Bear, Stearns & Co. Inc.................................................. 570,000
Banc of America Securities LLC........................................... 510,000
C.E. Unterberg, Towbin................................................... 180,000
---------------------
Total......................................... 3,000,000
=====================
The Underwritten Securities shall have the following terms:
Common Stock
------------
Title: Common Stock, par value $.001 per share.
Number of shares: 3,000,000
Number of Option Underwritten Securities: The Underwriters have an option to purchase up
to an additional 450,000 shares the Underwritten
Securities (the "Option Underwritten Securities")
at the public offering price, less underwriting
discount, within 30 days from September 23, 1999
to cover over-allotments.
Initial public offering price per share: $24.75
Purchase price per share: $23.265
Listing requirements: Nasdaq National Market
Black-out provisions: None
Lock-up provisions: For a period of 90 days from the issuance of the
Underwritten Securities, the Company may not,
without the prior written consent of Merill,
Lynch, Pierce, Fenner & Smith Incorporated,
sell, grant options for the sale of or otherwise
dispose of shares of its capital stock or any
securities convertible into or exchangeable or
exercisable for its capital stock; provided
however, the Company may sell $65,000,000 of
its 9.2% Series B Junior Cumulative Convertible
Preferred Stock to Apollo Investment Fund IV,
L.P. and Apollo Overseas Partners IV, L.P.
during this 90-day period.
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Other terms and conditions: All notices and other communications hereunder
shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to
the Underwriters shall be directed to the
Underwriters at Merrill Lynch & Co., North
Tower, World Financial Center, New York, New
York 10281, attention of Robert Kramer; notices
to the Company shall be directed to the
Company at 1221 Avenue of the Americas, 36th
Floor, New York, New York 10020, attention of
Patrick L. Donnelly, Senior Vice President,
General Counsel and Secretary.
Closing date and location: September 29, 1999
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
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Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL, LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By /s/ Marilyn J. Pugliese
--------------------------------
Name: Marilyn J. Pugliese
Title: Authorized Signatory
Acting on behalf of itself and the other
named Underwriters.
Accepted:
CD RADIO INC.
By /s/ Patrick L. Donnelly
----------------------------
Name: Patrick L. Donnelly
Title: Senior Vice President,
General Counsel and
Secretary
FORM OF OPINION OF
PATRICK L. DONNELLY, ESQ. TO
BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The District of Columbia and the State of New York are the
only jurisdictions in which the Company is required to be qualified as a foreign
corporation to transact business, whether by reason of the ownership or leasing
of property or the conduct of business as of the date hereof, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(2) Satellite CD Radio, Inc. (the "Subsidiary") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in the District of Columbia and in the State of New
York, which are the only jurisdictions in which the Subsidiary is required to be
qualified, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; all of the issued and
outstanding capital stock of the Subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and, to my knowledge, is owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity other than liens in favor of the Collateral Agent
(as defined in the Amended and Restated Pledge Agreement dated as of May 15,
1999 (the "Pledge Agreement")) pursuant to the Pledge Agreement for its benefit,
the benefit of the trustee of the Company's 15% Senior Secured Discount Notes
due 2007 (the "Discount Notes"), the benefit of the trustee of the Company's
14-1/2% Senior Secured Notes due 2009 (the "Notes") and the ratable benefit of
the holders of Discount Notes and Notes; none of the outstanding shares of
capital stock of the Subsidiary was issued in violation of the preemptive rights
provisions in (a) the Subsidiary's certificate of incorporation or by-laws or
(b) the Delaware General Corporation Law.
(3) [The execution, delivery and performance of the Loral
Satellite Contract (as defined in the Prospectus) by the Company and compliance
by the Company with its obligations under the Loral Satellite Contract do not
and will not, whether with or without the giving of notice or lapse of time or
both, conflict with or constitute a breach of, or default or Repayment Event (as
defined in the Underwriting Agreement) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or its Subsidiary pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other agreement or
instrument, described in the Prospectus, to which the Company or its Subsidiary
is a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or its Subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or its Subsidiary, or
any applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court of the State
of New York or the United States, having jurisdiction over the Company or its
Subsidiary or any of their respective properties, assets or operations.]
[Discuss]
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In addition, although I have not undertaken to investigate or
verify independently, and am not passing upon and do not assume any
responsibility for, the accuracy, completeness or fairness of the contents of
the Prospectus, in connection with the preparation of the Prospectus, I have
participated in conferences with representatives and counsel of the Underwriters
and with certain officers and employees of, and independent certified public
accountants for, the Company, at which conferences the contents of the
Prospectus and related matters were discussed, and based upon this participation
(and relying as to factual matters to the extent I deemed reasonable on officers
and employees of the Company), advise you that no facts have come to my
attention that would lead me to believe that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included or incorporated by reference in or omitted from those
documents, as to which I make no statement), at the time the Prospectus was
issued, at the time any amended or supplemented Prospectus was issued or at the
Closing Time (as defined in the Underwriting Agreement), included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering his opinion, such counsel may rely, as to matters
of facts (but not as to legal conclusions), to the extent he deems proper, on
certificates of public officials. The opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
The opinion shall contain assumptions, limitations, qualifications and
exceptions normally included by counsel in transactions of this kind.
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in the District of Columbia and in the State of
New York.
(4) The Underwriting Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(5) The Underwritten Securities have been duly authorized by the Company
for issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and delivered by the
Company pursuant to the Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of the Underwritten Securities is or will be subject to personal
liability by reason of being such a holder. The form of certificate used to
evidence the Underwritten Securities is in due and proper form and complies with
the applicable statutory requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of the Nasdaq
National Market.
(6) The Underwritten Securities have been duly authorized by the Company
for issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Debt Securities
payable in a foreign or corporate currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Underwritten Securities are in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the applicable Indenture.
(7) The applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and delivery
thereof by the
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applicable Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(8) The Underlying Securities have been duly authorized and reserved for
issuance by the Company upon conversion of the related Subordinated Debt
Securities. The Underlying Securities, when issued upon such conversion, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of the Underlying Securities is or will be subject to personal liability
by reason of being such a holder.
(9) The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the applicable Indenture conform, and any Underlying Securities,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform, in all material respects to the
statements relating thereto contained in the Prospectus and are in substantially
the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(10) The information in the Prospectus under "Description of Underwritten
Securities" and "Description of Underlying Securities", if any, or any caption
purporting to describe any such Securities, "Certain Federal Income Tax
Considerations" and " ", in the Annual Report on Form 10-K under " " and in the
Registration Statement under Item 15, to the extent that it constitutes matters
of law, summaries of legal matters or the Company's charter, bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in all
material respects.
(11) To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(12) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the applicable Indenture and any other
agreement or instrument entered into or issued or to be entered into or issued
by the Company in connection with the transactions contemplated in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds" and
the issuance of any Underlying Securities) and compliance by the Company with
its obligations thereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the
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Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the assets, properties or operations of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations.
(13) To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or the applicable
Indenture or the performance by the Company of its obligations thereunder.
(14) All descriptions in the Prospectus of contracts and other documents to
which the Company or its subsidiaries are a party are accurate in all material
respects. To the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material respects.
(15) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(17) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which we express no opinion),
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
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(18) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which we express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the 1933 Act or the 1934 Act, as applicable,
and the rules and regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company of the Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, the Underwriting Agreement, such
Terms Agreement or the any applicable Indenture, other than under the 1933 Act,
the 1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, which have
already been made, obtained or rendered, as applicable.
(20) The applicable Indenture has been duly qualified under the 1939 Act.
(21) The Underwritten Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(22) The Company is not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(23) The Voting Trust Agreement constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as enforcement may be limited as described by Insolvency Exemption; and
the provisions of the Voting Trust Agreement create a "voting trust" as provided
in Section 218 under the DGCL.
Nothing has come to our attention that would lead us to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which we make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which we make no statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary
5
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991). The opinion shall contain assumptions, limitations,
qualifications and exceptions normally included by counsel in transactions of
this kind.
FORM OF OPINION OF WILEY, REIN & FIELDING,
REGULATORY COUNSEL TO THE COMPANY,
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(1) (a) The execution, delivery and performance of the
Underwriting Agreement, the consummation of the transactions contemplated
therein and in the Prospectus and compliance by the Company with its obligations
thereunder do not violate (i) the Federal Communications Act of 1934, as amended
(the "Communications Act"), (ii) any rules or regulations of the Federal
Communications Commission ("FCC") applicable to the Company or its Subsidiary,
(iii) any state telecommunications law, rules or regulations ("State Law")
applicable to the Company or its Subsidiary, and (iv) to the best of such
counsel's knowledge, any decree from any court, and (b) no consent, approval,
authorization or order of or filing with the FCC or any state authority
overseeing telecommunications matters ("State Authority"), is necessary for the
execution, delivery and performance of the Underwriting Agreement except for
consents, approvals, authorizations or orders of or qualifications as have
already been obtained and except to the extent that the failure to obtain such
consents, approvals, authorizations or orders or to qualify with the FCC or any
State Authority would not, individually or in the aggregate, have a material
adverse effect on the prospects, condition (financial or otherwise) or in the
earnings, business or operations of the Company and its subsidiary, taken as a
whole.
(2) Except as described in the Prospectus, (a) each of the
Company and its Subsidiary has made all reports and filings, and paid all fees,
required by the FCC and the State Authorities, and have all certificates,
orders, permits, licenses, authorizations, consents and approvals of and from,
and have made all filings and registrations, with the FCC and the State
Authorities necessary to own, lease, license and use its properties and assets
and to conduct the business now operated by them or intended to be operated by
them in the manner described in the Prospectus; and (b) to the best of such
counsel's knowledge after due inquiry neither the Company nor its subsidiary has
received any notice of proceedings relating to the violation, revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, or the qualification or rejection of any
such filing or registration, the effect of which, singly or in the aggregate,
would have a material adverse effect on the prospects, condition, financial or
otherwise, earnings, operations or business of the Company and its subsidiary
now operated by them or intended to be operated by them in the manner described
in the Prospectus taken as a whole.
(3) To the best of such counsel's knowledge after due inquiry
(A) no adverse judgment, decree or order of the FCC or of any State Authority
has been issued against the Company or its subsidiary and (B) no litigation,
proceeding, inquiry or investigation has been commenced or threatened against
the Company or its subsidiary before or by the FCC or any State Authority which,
if decided adversely to the Company's interest, would have a material adverse
effect on the Company and its subsidiary, taken as a whole.
(4) The statements in the Prospectus under the captions "Risk
Factors -- We Are Subject to Continuing and Detailed Regulation by the FCC",
"Risk Factors -- Receivers and Antennas Are Not Yet Available", "Risk Factors --
We May Not Be Able to Compete Effectively Against Conventional Radio Stations,
the Other Holder of an FCC License to Provide this Service or Other Potential
Providers of this Service", "Business -- Competition", and "Business --
Government Regulation", insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly summarize
the matters referred to therein.
In rendering their opinion, counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. The
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of
2
Business Law (1991). The opinion shall contain assumptions, limitations,
qualifications and exceptions normally included by counsel in transactions of
this kind.