Rights Agreement [Amendment] - Sirius Satellite Radio Inc. and Continental Stock Transfer & Trust Co.
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of January 28, 2000 (this "Amendment"), by and between
SIRIUS SATELLITE RADIO INC., a Delaware corporation (the "Company"), and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as rights agent (the "Rights
Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of October 22, 1997 (as heretofore amended, the "Rights
Agreement");
WHEREAS, the Company proposes to (a) issue and sell 2,290,322 shares of
its common stock, par value $.001 per share ("Common Stock"), to DaimlerChrysler
Corporation (the "Purchaser") pursuant to a Stock Purchase Agreement, dated as
of January 28, 2000 (the "Stock Purchase Agreement"), by and between the Company
and the Purchaser and (b) issue to the Purchaser a warrant (the "Warrant")
entitling the Purchaser to purchase from the Company, on terms and subject to
the conditions specified therein, up to an aggregate of 4,000,000 shares of
Common Stock (as such number may be adjusted pursuant to the Warrant);
WHEREAS, under the terms of the Rights Agreement, unless the Rights
Agreement is amended, the Purchaser would become an "Acquiring Person," as
defined in Section 1(a) of the Rights Agreement, upon the purchase of the Common
Stock pursuant to the Stock Purchase Agreement and/or upon acquisition of the
Warrant; and
WHEREAS, the Board of Directors of the Company deems it desirable and in
the best interests of the Company and its stockholders to amend the Rights
Agreement to exclude the Purchaser and any of the Purchaser's Affiliates and
Associates (each as defined in the Rights Agreement) who would otherwise be
deemed Beneficial Owners (as defined in the Rights Agreement) as a result of
such transaction from such definition of "Acquiring Person."
Accordingly, the parties agree as follows:
1. Amendment of Section 1(a) of the Rights Agreement. The definition of
"Acquiring Person" set forth in Section 1(a) of the Rights Agreement is amended
by adding the following clause at the end of such Section 1(a):
"; provided, further, that DaimlerChrysler Corporation (hereinafter
referred to as "DCC"), and any of the Affiliates or Associates of DCC that
would otherwise be deemed to be Beneficial Owners of the Company's
securities (such Affiliates and Associates, together with DCC, are
hereinafter referred to as the "DaimlerChrysler Investors"), shall not be,
or be deemed to be, Acquiring Persons solely by reason of (1) the issuance
by the Company, and the acquisition or beneficial ownership by the
DaimlerChrysler Investors,
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of a common stock purchase warrant issued on January 28, 2000 or the
Common Shares issued pursuant thereto and/or (2) the purchase or
beneficial ownership by the DaimlerChrysler Investors of up to (but not
more than) 2,290,322 Common Shares pursuant to the Stock Purchase
Agreement dated as of January 28, 2000 by and between the Company and
DCC."
2. Miscellaneous. 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. 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. 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 effected, impaired or invalidated.
(Signature page follows)
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EXECUTED as of the date set forth above.
SIRIUS SATELLITE RADIO INC.
By: /s/ Patrick L. Donnelly
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Name: Patrick L. Donnelly
Title: Senior Vice President, General Counsel
and Secretary
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
By: /s/ William F. Seegraber
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Name: William F. Seegraber
Title: Vice President