Stock Purchase Agreement [Amendment No. 2] - Sirius Satellite Radio Inc. and Apollo Management LP
SECOND AMENDMENT TO
STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT is dated as of December 23, 1999 and amends that
certain STOCK PURCHASE AGREEMENT, dated as of November 13, 1998 (as amended, the
"SPA"), by and among SIRIUS SATELLITE RADIO INC. (formerly known as CD Radio
Inc.), a Delaware corporation (the "Company"), and APOLLO INVESTMENT FUND IV,
L.P., a Delaware limited partnership ("AIF IV"), and APOLLO OVERSEAS PARTNERS
IV, L.P., a Cayman Islands limited partnership ("AOP IV", and together with AIF
IV, and including their respective successors and permitted assigns, the
"Purchasers").
WHEREAS, the Company and the Purchasers desire to effect certain
amendments to the SPA and Section 11.5(b) of the SPA permits the SPA to be
amended by a writing signed by the Company and the Purchasers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized terms used herein shall have the meanings ascribed to
them in the SPA.
2. The definition of Series A Registrable Securities set forth in the
SPA is hereby amended and replaced in its entirety as follows:
"Series A Registrable Securities" shall mean the shares of Common Stock
into which shares of Series A Preferred Stock issued hereunder or by way
of any in-kind dividend may be converted and any capital stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares of Common Stock, until, in
the case of any such share, (i) it is effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement covering it or (ii) it is distributed to the public by the
holder thereof pursuant to Rule 144; provided, however, that for purposes
of Article 9 and Article 6, during the period in which disposition of
such Purchased Shares would violate the terms of a lock-up agreement,
Series A Registrable Securities shall not include any shares of Common
Stock into which shares of Series A Preferred Stock that are subject to
such lock-up agreement may be converted.
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3. The definition of Series B Registrable Securities set forth in the
SPA is hereby amended and replaced in its entirety as follows:
"Series B Registrable Securities" shall mean the shares of Common Stock
into which shares of Series B Preferred Stock issued hereunder or by way
of any in-kind dividend may be converted and any capital stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares of Common Stock, until, in
the case of any such share, (i) it is effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement covering it or (ii) it is distributed to the public by the
holder thereof pursuant to Rule 144; provided, however, that for purposes
of Article 9 and Article 6, during the period in which disposition of
such Option Shares would violate the terms of a lock-up agreement, Series
B Registrable Securities shall not include any shares of Common Stock
into which shares of Series B Preferred Stock that are subject to such
lock-up agreement may be converted.
4. Section 6.2 of the SPA is hereby amended and replaced in its
entirety as follows:
"6.2 Lock-Up Agreement. At any time prior to the earlier of (a) November
13, 2001 and (b) the date that the Purchasers cease collectively to
beneficially own 10% or more of the Common Stock, the Company and its
underwriters, by written notice from the Company and its lead underwriter
to the Purchasers (a "Lock-up Request"), given as provided herein on or
after the time of the initial filing with the Commission of any
registration statement (other than a registration statement relating to
an offering described in Section 9.1) with respect to any offering of
Common Stock or securities convertible into Common Stock (the
"Offering"), may request that the Purchasers agree not to offer, sell or
transfer any of the (i) Purchased Shares and the Option Shares, (ii)
shares of Series A Preferred Stock or Series B Preferred Stock issued as
in-kind dividends on (x) the Purchased Shares and the Option Shares or
(y) other shares of Series A Preferred Stock or Series B Preferred Stock
issued as in-kind dividends (such shares referred to in this clause (ii),
"Dividend Shares") or (iii) Common Stock issued upon any conversion of
the Purchased Shares, Option Shares and/or Dividend Shares or engage in
any hedging or similar transactions with respect to the Purchased Shares,
Dividend Shares, Option Shares or Common Stock issued upon any conversion
of the Purchased Shares, Option Shares and/or Dividend Shares during the
180-day period (the "Lock-up Period") beginning on a date specified in
the Lock-up Request, which date may be as early as five (5) Business Days
prior to the closing date of the Offering (but no later than the closing
date of the Offering), and each Purchaser agrees to consent to and be
bound by the restrictions specified in any
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such Lock-up Request; provided, however, that such a lock-up agreement
with respect to any Offering shall not prevent any Purchaser from selling
Purchased Shares, Dividend Shares, Option Shares or Common Stock issued
upon any conversion of the Purchased Shares, Option Shares and/or
Dividend Shares which it is entitled to sell in such Offering pursuant to
Section 9.2 if it shall have made the request specified therein. The
foregoing notwithstanding, no Lock-up Request shall be effective and
binding upon the Purchasers unless a similar lock-up is imposed upon all
other Persons beneficially owning 10% or more of the Common Stock with
respect to which the Company then has the power to request or impose such
lock-up. Any such lock-up imposed upon any other Person shall be for the
shorter of (i) the Lock-up Period and (ii) the maximum period the Company
has the right or power to impose upon such other Person. The Lock-up
Period may be terminated as to the Purchasers on written notice from
either the Company or the lead underwriter of the Offering, and
automatically shall be terminated immediately as to the Purchasers in the
event it is terminated as to any other Person (including the Company and
its Affiliates) or any other Person is otherwise released from any
lock-up obligations with respect to the Offering. The Company shall
specify the expected effective date of any Offering by notice to the
Purchasers given not later than two (2) Business Days prior to the
beginning of the Lock-up Period. Each Purchaser shall cause each Person,
together with its Affiliates, to whom it Transfers, in one or a series of
related transactions, the equivalent of 1,000,000 or more shares of
Common Stock (assuming conversion of the Series A Preferred Stock and
Series B Preferred Stock) to execute and deliver to the Company a letter
agreement pursuant to which such transferee agrees (and to cause each
other Person to whom it Transfers any shares of Common Stock if, after
giving effect to such Transfer, such Person, together with its
Affiliates, would beneficially own 1,000,000 or more shares of Common
Stock (assuming conversion of Series A Preferred Stock and Series B
Preferred Stock) to execute and deliver to the Company a similar letter
agreement) to comply with the requirements of this Section 6.2 (including
this sentence) to the same extent and subject to the same terms and
conditions as the Purchasers."
5. Section 9.1(a) of the SPA is hereby amended by adding the
following words after the words "1,000,000 shares of Common Stock" in such
section:
"(subject to appropriate adjustments in the event of stock splits or
similar events) or registration of Common Stock in connection with a
registered offering involving anticipated aggregate proceeds of at least
$50 million,"
6. Section 9.1(b) of the SPA is hereby amended by adding the
following words after the words "1,000,000 shares of Common Stock" in such
section:
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"(subject to appropriate adjustments in the event of stock splits or
similar events) or registration of Common Stock in connection with a
registered offering involving anticipated aggregate proceeds of at least
$50 million,"
7. Section 9.1(c) of the SPA is hereby amended and replaced in its
entirety as follows:
"(c) Notwithstanding any other provision of this Section 9.1, if the
Company shall furnish to Holders who have elected to exercise their
rights under Sections 9.1(a) or 9.1(b) (each, an "Exercising Holder") a
certificate signed by the President or the Chief Executive Officer of the
Company stating that the requested registration and offering would
require the disclosure of material non-public information and, in the
good faith judgment of the Board of Directors of the Company, such
disclosure in a Registration Statement to be filed pursuant to Section
9.1(a) or 9.1(b), as the case may be, would be seriously detrimental to
the Company and its stockholders and it is therefore desirable and in the
best interests of the Company to defer the filing of such registration
statement, then the Company shall have the right to defer such filing for
a period of time after receipt of such request; provided, however, that
the Company may not make such a request more than twice in any 12-month
period and the aggregate period of time during which the Company may
defer such filing shall not exceed 90 days."
8. Section 9.5(h) of the SPA is hereby amended by adding after the
words "take such other actions" appearing therein the following words:
"(including, without limitation, making senior management of the Company
available to participate in road show presentations on a customary
basis)"
9. This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, all of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
10. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of law principles thereof which would require the application of the
laws of another state.
11. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
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12. Except as expressly amended, modified and supplemented hereby, the
provisions of the SPA shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be executed and delivered by their respective officers hereunto duly
authorized as of the date first above written.
SIRIUS SATELLITE RADIO INC.
By:/s/ Patrick L. Donnelly
-----------------------------------------------
Name: Patrick L. Donnelly
Title: Senior Vice President and
General Counsel
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its general partner
By: Apollo Capital Management IV, Inc., its
general partner
By:/s/ Andrew Africk
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Andrew Africk
Vice President
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its general partner
By: Apollo Capital Management IV, Inc., its
general partner
By:/s/ Andrew Africk
---------------------------------------
Andrew Africk
Vice President
[Signature Page to Second Amendment to Stock Purchase Agreement]
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