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EXHIBIT 10.24.1
NOTE: CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24B-2(b) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
FIRST AMENDMENT
TO PREFERRED STOCK INVESTMENT AGREEMENT
This FIRST AMENDMENT TO PREFERRED STOCK INVESTMENT AGREEMENT (this
"AMENDMENT") is dated as of March 7, 1997, and entered into by and among CD
Radio Inc., a Delaware corporation ("CDRD") and the undersigned investors and
any additional investor that signs a counterpart to this Agreement
(collectively, "INVESTORS"). Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Preferred Stock
Investment Agreement dated as of October 23, 1996, by and between CDRD and
Investors ("PREFERRED STOCK INVESTMENT AGREEMENT").
RECITALS
WHEREAS, CDRD and Investors desire to amend the Preferred Stock
Investment Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE PREFERRED STOCK INVESTMENT AGREEMENT
1.1 AMENDMENT OF RECITALS: The Recitals to the Preferred Stock
Investment Agreement shall be amended by deleting the first two Recitals and
replacing such Recitals with two new Recitals as follows:
"WHEREAS, CDRD desires to issue and sell to the Investors, and
the Investors desire to purchase from CDRD, up to an aggregate of
[confidential portion omitted] shares of CDRD's 5% Delayed Convertible
Preferred Stock having the rights, designations and preferences set
forth in the Certificate of Designations of CDRD (the "CERTIFICATE OF
DESIGNATIONS") in identical form and substance of Exhibit I attached
to this Agreement (the "PREFERRED SHARES"), on the terms and
conditions set forth in this Agreement;
"WHEREAS, CDRD initially desires to sell to the Investors up
to [confidential portion omitted] of the Preferred Shares ("FIRST
CLOSING SHARES") [confidential portion omitted] on the terms and
conditions set forth in this Agreement."
1.2 AMENDMENT OF SECTION 6.2: AUTOMATIC TERMINATION. Section 6.2 of
the Preferred Stock Investment Agreement is hereby amended by deleting such
Section in its entirety and substituting the following therefor:
"Section 6.2 Automatic Termination. This Agreement shall
terminate without further action of the parties if the First Closing
[confidential portion omitted]."
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1.3 AMENDMENT OF SECTION 7.3: ENTIRE AGREEMENT; AMENDMENT; ADDITIONAL
INVESTORS; INCREASED COMMITMENTS. Section 7.3 of the Preferred Stock
Investment Agreement is hereby amended (i) by adding the subsection reference
"(a)" before the first sentence of such Section, (ii) by deleting the third
sentence thereof and (iii) by adding the following as subsection (b) as
follows:
"(b) (i) Any Investor may increase its investment under this
Agreement at any time on or prior to the First Closing Date to
purchase such number of First Closing Shares and Second
Closing Shares as shall be agreed between such Investor and
CDRD in writing. Upon execution of a written agreement
regarding such commitment by such Investor and CDRD, such
Investor shall be obligated to purchase and CDRD shall be
obligated to sell the additional First Closing Shares and
Second Closing Shares set forth in such commitment pursuant to
the terms of this Agreement;
(ii) Any individual or other legal entity may become an
additional investor under this Agreement at any time on or
prior to the First Closing Date with respect to such number of
First Closing Shares and Second Closing Shares as shall be
agreed between such Investor and CDRD. Any additional
investor under this Agreement may become an additional
investor by executing and delivering a counterpart to the
First Amendment to Preferred Stock Investment Agreement, dated
as of March 7, 1997. Upon delivery of any such counterpart
and acceptance thereof by CDRD, such counterpart shall be
attached to this Amendment, such additional investor shall be
an Investor (such term as used in this Agreement to include
such additional Investor) and such additional investor shall
be as fully a party to this Agreement as if such additional
investor were an original signatory of this Agreement. No
consent of any other Investor shall be required for such
addition;
in each case, Schedule I to this Agreement and Exhibits A, B, C and D
to Schedule A to Exhibit 2 to this Agreement, each automatically shall
be revised to reflect the new allocation of First Closing Shares and
Second Closing Shares to such Investor pursuant to clause (b)(i) above
or the joining of such additional investors to this Agreement pursuant
to clause (b)(ii) above, as the case may be."
1.4 AMENDMENT OF EXHIBIT 1: CERTIFICATE OF DESIGNATIONS OF 5% DELAYED
CONVERTIBLE PREFERRED STOCK. Exhibit 1 to the Preferred Stock Investment
Agreement is hereby amended by deleting the initial paragraph thereof and
substituting the following paragraph in its place:
"RESOLVED that there shall be a series of shares of the Preferred
Stock of CD Radio Inc. (the "CORPORATION"), designated "5% Delayed
Convertible Preferred Stock"; that the number of shares of such series
shall be [confidential portion omitted] and that the rights and
preferences of such series (the "5% PREFERRED") and the limitation or
restrictions thereon, shall be as follows:"
1.5 AMENDMENT OF SCHEDULE A TO EXHIBIT 2: PREFERRED CUSTODY SERVICES
ESCROW AGREEMENT. Schedule A to Exhibit 2 to the Preferred Stock Investment
Agreement is hereby amended by deleting the references to "[confidential
portion omitted]" and to "[confidential portion omitted]" in Sections 3(b)(iii)
and 4(b)(i) thereof and substituting for each such reference "[confidential
portion omitted]" and "[confidential portion omitted]", respectively.
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SECTION 2. MISCELLANEOUS
2.1 REFERENCE TO AND EFFECT ON THE PREFERRED STOCK INVESTMENT
AGREEMENT.
(i) On and after the Effective Date, each reference in the
Preferred Stock Investment Agreement to "this Agreement", "hereunder",
"hereof", "herein", or words of like import referring to the Preferred
Stock Investment Agreement and each reference in the Preferred Stock
Investment Agreement and other related agreements to the "Investment
Agreement", "thereunder" "thereof" or words of like import referring
to the Preferred Stock Investment Agreement shall mean and be a
reference to the Preferred Stock Investment Agreement, as amended by
this Amendment.
(ii) Except as specifically amended by this Amendment, the
Preferred Stock Investment Agreement shall remain in full force and
effect and is hereby ratified and confirmed.
2.2 COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective as to each party that executes a counterpart of this Amendment on the
date of such execution (the "EFFECTIVE DATE"). Any party who does not execute
a counterpart to this Amendment shall not be bound by the terms of the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
CD RADIO INC.
By:
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Name:
Title:
INVESTORS' SIGNATURE PAGES HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIALITY
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