Rights Agreement [Amendment] - Sirius Satellite Radio Inc., The Bank of New York and Continental Stock Transfer & Trust Co.
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of August 7, 2000 (this "Amendment"), by and
between SIRIUS SATELLITE RADIO INC. (f/k/a CD Radio Inc.), a Delaware
corporation (the "Company"), THE BANK OF NEW YORK, a New York corporation (the
"New Rights Agent"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY (the "Former
Rights Agent").
RECITALS
WHEREAS, the Company and the Former Rights Agent are parties to a
Rights Agreement, dated as of October 22, 1997 (as heretofore amended, the
"Rights Agreement");
WHEREAS, the Company and the New Rights Agent desire to amend the
Rights Agreement to, among other things, appoint the New Rights Agent as Rights
Agent under the Rights Agreement;
WHEREAS, the Former Rights Agent desires to resign as Rights Agent
under the Rights Agreement; and
WHEREAS, the parties to this Amendment desire to enter into this
Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
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1. Defined Terms. Capitalized terms used in this Amendment which are
not otherwise defined shall have their respective definitions in the Rights
Agreement.
2. The Rights Agent. The Former Rights Agent hereby confirms that it
resigns as Rights Agent under the Rights Agreement and the Company hereby
accepts such registration. The Company hereby appoints the New Rights Agent to
act as the Rights Agent under the Rights Agreement and the New Rights Agent
hereby accepts such appointment and agrees to act as Rights Agent under the
Rights Agreement. Each of the references in the Rights Agreement to "Rights
Agent" shall be deemed to refer to the New Rights Agent. Each of references in
the Rights Agreement (including the exhibits in the Rights Agreement) to
"CONTINENTAL STOCK TRANSFER & TRUST COMPANY" is hereby deleted and replaced with
"THE BANK OF NEW YORK."
3. Section 20 of the Rights Agreement. Section 20 of the Rights
Agreement is hereby amended in its entirety to read as follows:
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
Chief Executive
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Officer, the President, any Vice President, the Treasurer or the Secretary of
the Company and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any
other Person only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any adjustment required under the provisions of Section 11 or
Section 13 hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any
such adjustment (except with respect to the exercise of Rights evidenced by
Right Certificates after actual notice of any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Series B Shares to be issued pursuant to
this Agreement or any Right Certificate or as to whether any Series B Shares
will, when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Secretary or the Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or employee
of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which
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the Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting in any
other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2 on such
certificate attached to the form of assignment or form of election to purchase,
the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
4. Section 26 of the Rights Agreement. Section 26 of the Rights
Agreement is hereby amended in its entirety to read as follows:
Section 26. Notices. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
SIRIUS SATELLITE RADIO INC.
1221 Avenue of the Americas, 37th Floor
New York, NY 10020
Attn: Chief Executive Officer
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by
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first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
THE BANK OF NEW YORK
101 Barclay Street - 12W
New York, NY 10286
Attn: [ ]
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Rights Agent.
5. Governing Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same instrument.
7. Severability. If any provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, illegal or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
8. Descriptive Headings. Descriptive headings of the several sections
of this Amendment are inserted for convenience of reference only and shall not
control or affect the meaning or construction of any of the provisions hereof.
[Signature page follows.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
SIRUS SATELLITE RADIO INC.
By: /s/ Patrick L. Donnelly
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Name: Patrick L. Donnelly
Title: Senior Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK
By: /s/ Alexander Pabon
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Name: Alexander Pabon
Title: Assistant Treasurer
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ William F. Seegraber
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Name: William F. Seegraber
Title: Vice President