EXHIBIT 4
[Sirius Satellite Radio Letterhead]
December 23, 1999
Apollo Investment Fund IV, L.P.
Apollo Overseas Partners IV, L.P.
c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Blackstone Capital Partners III Merchant
Banking Fund L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Dear Ladies and Gentlemen:
Sirius Satellite Radio Inc. (the "Company") expects to enter into a
Stock Purchase Agreement in the form attached hereto as Exhibit A (the "Stock
Purchase Agreement") with Blackstone Capital Partners III Merchant Banking Fund
L.P. (together with its successors and permitted assigns, the "Purchasers")
pursuant to which the Purchasers will agree to purchase from the Company
2,000,000 shares of 9.2% Series D Junior Cumulative Convertible Preferred Stock,
par value $0.001 per share (the "Series D Preferred Stock"), of the Company
having the terms contained in the Certificate of Designations, Preferences and
Relative, Participating, Optional and Other Special Rights attached as Exhibit B
to this letter (the "Series D Certificate of Designations"). Apollo Investment
Fund IV, L.P. ("AIF IV") and Apollo Overseas Partners IV, L.P. ("AOP IV", and
together with AIF IV, the "Apollo Investors") are the sole holders of the
Company's 9.2% Series A Junior Cumulative Preferred Stock ("Series A Preferred
Stock") and the Company's 9.2% Series B Junior Cumulative Preferred Stock (the
"Series B Preferred Stock").
This letter sets forth the agreement among the Company, the Apollo
Investors and the Purchasers regarding certain matters in connection with the
sale and issuance of the Series D Preferred Stock.
1. The Apollo Investors hereby irrevocably consent to the
authorization, creation and issuance by the Company, pursuant
to the Stock Purchase Agreement, of (i) Series D Preferred
Stock having an initial aggregate stated value of
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$200,000,000 and having the terms set forth in the Series D
Certificate of Designations and (ii) any Dividend Shares (as
defined in the Stock Purchase Agreement) having the terms set
forth in the Series D Certificate of Designations. The Company
acknowledges that the Series D Preferred Stock and Dividend
Shares consented to by this letter shall count towards the
$200 million Parity Stock "basket" provided for in Section
8(b)(iii) of the Series A Preferred Stock Certificate and the
Series B Preferred Stock Certificate (as defined below);
provided that the consent of the holders of the Series A
Preferred Stock and Series B Preferred Stock shall not be
required for the issuance of any Dividend Shares.
2. The Company hereby agrees that it will not exercise its rights
contained in Section 4(a)(1) of the respective Certificates of
Designations, Preferences and Relative, Participating,
Optional and Other Special Rights relating to the Series A
Preferred Stock and the Series B Preferred Stock
(respectively, the "Series A Preferred Stock Certificate" and
the "Series B Preferred Stock Certificate") to redeem any
Series A Preferred Stock (provided the Apollo Investors
continue to own any shares of Series A Preferred Stock) or
Series B Preferred Stock (provided the Apollo Investors
continue to own any shares of Series B Preferred Stock) prior
to the date the Series D Preferred Stock is redeemable
pursuant to Section 4(a)(1) of the Series D Certificate of
Designations.
3. The Apollo Investors agree that, notwithstanding Section
9.1(d) of the Stock Purchase Agreement dated November 13, 1998
(as amended, the "Apollo Agreement"), after December 23, 2001
the Holders (as defined in the Stock Purchase Agreement) shall
have "piggyback" rights pursuant to Section 9.2 of the Stock
Purchase Agreement with respect to any registration statement
filed by the Company as a result of a demand by the Apollo
Investors pursuant to Section 9.1 of the Apollo Agreement (an
"Apollo Demand Registration"). Prior to December 23, 2001, the
Holders (as defined in the Stock Purchase Agreement) shall
also have "piggyback" rights pursuant to Section 9.2 of the
Stock Purchase Agreement; provided, however, that, with
respect to any registration of shares by the Company on behalf
of itself or any shareholder pursuant to any "demand"
registration rights existing as of the date hereof, if the
lead underwriter reasonably determines in good faith that
marketing or other factors, including impact on price, require
any reduction of or limitation on the number of shares to be
included in such offering, all shares relating to the Series D
Preferred Stock shall be excluded from the offering and/or
sale before any Protected Shares are reduced or excluded from
the offering or sale, and any shares other than the Protected
Shares shall be offered and sold on a pro-rata basis based on
the number of such other shares offered for sale by the
holders of such other shares. "Protected Shares" means all
Registrable Securities (as defined in the Apollo Agreement),
the anticipated proceeds of
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which (in the relevant offering) when added to the aggregate
proceeds of all previous sales (in one or more transactions),
other than sales to any affiliates of the Apollo Investors, of
common stock of the Company, is less than or equal to
$100,000,000.
4. Subject to any limitation or restriction of rights contained
in paragraph 3, each of the Purchasers and the Apollo
Investors agree that in the event the Series A Preferred
Stock, Series B Preferred Stock or Series D Preferred Stock
has "piggyback" rights (including pursuant to Section 9.2 of
the Apollo Agreement or Section 9.2 of the Stock Purchase
Agreement) with respect to a registered public offering in
which the lead underwriter advises the Company that marketing
factors require a limitation on the number of shares that can
be underwritten, the reduction in the shares to be offered
pursuant to such offering shall be reduced among the Holders
(as defined in the Apollo Agreement) and the Holders (as
defined in the Stock Purchase Agreement) on a pro rata basis
based upon the amount of shares that each respective group of
holders had requested that the Company include in such
offering. Subject to any limitations or restrictions of rights
contained in paragraph 3, the foregoing sentence shall apply
regardless of whether the relevant registration was initiated
or demanded by any of the Holders (as defined in the Apollo
Agreement) or the Holders (as defined in the Stock Purchase
Agreement).
5. Anything in the Stock Purchase Agreement or the Apollo
Agreement to the contrary notwithstanding, each of the
Company, the Purchasers and the Apollo Investors hereby agrees
that it will not amend (or vote any securities of the Company
in favor of amending) Sections 3(a)(3), 4(a)(1) or 9(a) of the
Series D Certificate of Designations unless such amendment is
approved by a majority of the outstanding Series A Preferred
Stock (provided the Apollo Investors continue to own any
shares of Series A Preferred Stock) and Series B Preferred
Stock (provided the Apollo Investors continue to own any
shares of Series B Preferred Stock), acting as a single class.
The agreements contained in paragraph 4 and paragraph 5 of this letter
shall be enforceable by and are intended to benefit the Holders (as defined in
the Apollo Agreement) and the Holders (as defined in the Stock Purchase
Agreement) and shall be enforceable by them against the parties hereto.
This letter and the rights and the duties of the parties hereto shall
be governed by, and construed in accordance with, the laws of the State of New
York. This letter may be
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executed in counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument.
Very truly yours,
SIRIUS SATELLITE RADIO INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and General
Counsel
Accepted and agreed to as of
the date first above written:
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/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: 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/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.
By: Blackstone Management Associates III, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Member
