EXECUTION COPY
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to the Stock Purchase Agreement (the
"Stock Purchase Agreement"), dated as of November 13, 1998, by and among CD
Radio Inc. (the "Company"), Apollo Investment Fund IV, L.P. ("AIF IV") and
Apollo Overseas Partners IV, L.P. ("AOP IV" and, together with AIF IV, and
including their successors and permitted assigns, the "Purchasers") is made by
and among the Company and the Purchasers as of this 23rd day of December, 1998
(this "Amendment"). Capitalized terms used herein but not defined herein shall
have the meanings ascribed to them in the Stock Purchase Agreement.
In consideration of the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Amendments. The Stock Purchase Agreement is hereby modified
and amended as set forth below:
(a) Section 6(f)(iv) of Exhibit A to the Stock Purchase
Agreement is amended to read in its entirety as follows:
"(iv) In case the Corporation shall purchase, redeem or
otherwise acquire any shares of Common Stock at a price per share greater than
the Current Market Price per share of Common Stock on the date of such event, or
in case the Corporation shall purchase, redeem or otherwise acquire other
securities convertible into or exchangeable for Common Stock (other than the
Series C Preferred Stock) for a consideration per share of Common Stock into
which such security is convertible or exchangeable greater than the per share
Current Market
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Price on the date of such event, then the Conversion Price in effect immediately
prior thereto shall be adjusted as provided below so that the Conversion Price
therefor shall be equal to the price determined by multiplying (A) the
Conversion Price at which shares of Series A Preferred Stock were theretofore
convertible by (B) a fraction of which (x) the denominator shall be the Current
Market Price per share on the date of such event, and (y) the numerator shall be
the Current Market Price per share on the date of such event less the difference
between (1) the consideration paid by the Corporation per share of Common Stock
(or, in the case of securities convertible into or exchangeable for Common
Stock, the consideration per share of Common Stock into which such security is
convertible or exchangeable) purchased, redeemed or acquired in such event and
(2) the Current Market Price per share on the date of such event. Such
adjustment shall be made whenever such Common Stock is issued or sold, and shall
become effective immediately after the issuance or sale of such securities. The
foregoing notwithstanding, no adjustment shall be made pursuant to this
subparagraph (iv) with respect to any particular purchase, redemption or
acquisition with respect to which a Payout Election is made."
(b) Section 6(f)(iv) of Exhibit B to the Stock Purchase
Agreement is amended to read in its entirety as follows:
"(iv) In case the Corporation shall purchase, redeem or
otherwise acquire any shares of Common Stock at a price per share greater than
the Current Market Price per share of Common Stock on the date of such event, or
in case the Corporation shall purchase, redeem or otherwise acquire other
securities convertible into or exchangeable for Common Stock (other than the
Series C Preferred Stock) for a consideration per share of Common Stock into
which such
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security is convertible or exchangeable greater than the per share Current
Market Price on the date of such event, then the Conversion Price in effect
immediately prior thereto shall be adjusted as provided below so that the
Conversion Price therefor shall be equal to the price determined by multiplying
(A) the Conversion Price at which shares of Series B Preferred Stock were
theretofore convertible by (B) a fraction of which (x) the denominator shall be
the Current Market Price per share on the date of such event, and (y) the
numerator shall be the Current Market Price per share on the date of such event
less the difference between (1) the consideration paid by the Corporation per
share of Common Stock (or, in the case of securities convertible into or
exchangeable for Common Stock, the consideration per share of Common Stock into
which such security is convertible or exchangeable) purchased, redeemed or
acquired in such event and (2) the Current Market Price per share on the date of
such event. Such adjustment shall be made whenever such Common Stock is issued
or sold, and shall become effective immediately after the issuance or sale of
such securities. The foregoing notwithstanding, no adjustment shall be made
pursuant to this subparagraph (iv) with respect to any particular purchase,
redemption or acquisition with respect to which a Payout Election is made."
2. No Other Amendments. Except as provided above, the Stock
Purchase Agreement shall remain in full force and effect, and the execution of
this Amendment is not a waiver by the Company or the Purchasers of any of the
terms or provisions of the Stock Purchase Agreement.
3. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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EXECUTED as of the date set forth above.
CD RADIO INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Executive 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/ Xxxxxx Xxxxxx
--------------------
Xxxxxx Xxxxxx
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
---------------------
Xxxxxx Xxxxxx
Vice President
