Common Stock Purchase Warrant - Sirius Satellite Radio Inc. and DaimlerChrysler AG
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 4,000,000 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 $15.00 (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 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"),
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-3
Number of Shares: 4,000,000
Name of Warrantholder: DaimlerChrysler AG, a German corporation
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, the right to exercise this Warrant shall vest, and this Warrant
shall become exercisable, as follows:
(a) with respect to 1,000,000 shares of Common Stock, on the date that
there are 250,000 Eligible Vehicles;
(b) with respect to an additional 500,000 shares of Common Stock, on the
date there are 800,000 Eligible Vehicles;
(c) with respect to an additional 500,000 shares of Common Stock, on the
date there are 1,600,000 Eligible Vehicles;
(d) with respect to an additional 1,000,000 shares of Common Stock, on
the date there are 2,400,000 Eligible Vehicles; and
(e) with respect to an additional 1,000,000 shares of Common Stock, on
the date there are 3,200,000 Eligible Vehicles.
The Warrantholder shall have no right to exercise this Warrant with
respect to shares of Common Stock which are not vested and exercisable as
described in this Section 1.1.
1.2 Duration and Exercise of Warrant. Subject to the terms and conditions
set forth herein, including Section 1.1, the Warrant may be exercised, in whole
or in part, by the Warrantholder by:
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(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
(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.
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
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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.
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.
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3. Reservation and Registration of Shares, Etc. 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) the Company 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.
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, etc. 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
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
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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 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.
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6.3 Notice of Adjustments. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, 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 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
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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.
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.
"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 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.
"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.
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"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 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.
"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.
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"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 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 will offer to Sirius Subscribers which will permit such Sirius
Subscribers to receive a multichannel audio service broadcast from satellites
and, in certain instances, terrestrial repeaters.
"Sirius Subscriber" shall mean any person or entity that has agreed to pay
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
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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.
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 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.
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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.
(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.
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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: May 13, 2002
Attest:
By: /s/ Douglas Kaplan
---------------------------------------
Douglas Kaplan
Assistant Secretary
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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:
____________________________________________
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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:
____________________________________________
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