SIRIUS SATELLITE RADIO INC.
(a Delaware corporation)
10,000,000 Shares of Common Stock
TERMS AGREEMENT
February 23, 2001
To: Sirius Satellite Radio Inc.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This is a Terms Agreement referenced in the Form Underwriting Agreement
filed as an Exhibit to Registration Statement No. 333-86003, the terms of which
are hereby incorporated herein. We understand that Sirius Satellite Radio Inc.
(formerly known as CD Radio Inc.), a Delaware corporation (the "Company"),
proposes to issue and sell 10,000,000 shares of its common stock, par value
$.001 per share (the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, Xxxxxx Brothers Inc.
(the "Underwriter") offers to purchase the number of Underwritten Securities
opposite its name set forth below at the purchase price set forth below, and
some or all of the Option Underwritten Securities set forth below, to the extent
any Underwritten Securities or Option Underwritten Securities are purchased in
accordance with the terms hereof.
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Number of
Underwritten
Underwriter Securities
----------- ----------
Xxxxxx Brothers Inc............................................... 10,000,000
The Underwritten Securities shall have the following terms:
Common Stock
Title: Common Stock, par value $.001 per share.
Number of shares: 10,000,000
Number of Option Underwritten Securities: The Underwriter has an option to purchase up to an
additional 1,500,000 shares of Underwritten
Securities (the "Option Underwritten Securities") at
the public offering price, less an underwriting
discount, within 30 days from February 23, 2001 to
cover over-allotments.
Initial public offering price per share: $21.00
Purchase price per share: $20.00
Listing requirements Nasdaq National Market
Black-out provisions: None
Lock-up provisions: For a period of 90 days from the issuance of the
Underwritten Securities, the Company may not,
without the prior written consent of Xxxxxx Brothers
Inc., sell, grant options for the sale of or
otherwise dispose of shares of its capital stock or
any securities convertible into or exchangeable or
exercisable for its capital stock. The Company will
use its reasonable efforts (which shall not include
the payment of money or other consideration) to
cause each executive officer and director of the
Company, Apollo Investment Fund IV, L.P., Apollo
Overseas Partners IV, L.P., Prime 66 Partners, L.P.,
Blackstone Management Associates III L.L.C. and
DaimlerChrysler Corporation to enter into lock-up
agreements, in form and substance satisfactory to
the Underwriter, as soon as reasonably practicable
prior to the closing date set forth herein.
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Comfort letter: The Underwriter acknowledges it will not
receive from Xxxxxx Xxxxxxxx LLP, at the time
of the signing of this Terms Agreement, the
Accountant's Comfort Letter referenced in
Section 5(g) of the Form Underwriting Agreement.
The Company shall use its best efforts to cause Xxxxxx
Xxxxxxxx LLP to deliver such Accountant's Comfort
Letter to the Underwriter, as soon as reasonably practicable.
In any event, the Company shall cause Xxxxxx Xxxxxxxx LLP
to deliver the Accountant's Comfort Letter referenced in
Section 5(g) of the Form Underwriting Agreement.
Counsel for the Company: Notwithstanding Section 5(c) of the Form
Underwriting Agreement, Xxxxxxx Xxxxxxx & Xxxxxxxx
shall be counsel for the Company.
Other terms and conditions: All notices and other communications hereunder
shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the
Underwriter shall be directed to the Underwriters
at Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx Xxxxx;
notices to the Company shall be directed to the Company
at 1221 Avenue of the Americas, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxxxx X. Xxxxxxxx,
Senior Vice President, General Counsel and Secretary.
Closing date and location: February 28, 2001
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
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Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
XXXXXX BROTHERS INC.
By /s/ Xxxxxxxxx Satin
------------------------------
Name: Xxxxxxxxx Satin
Title: Authorized Signatory
Accepted:
SIRIUS SATELLITE RADIO INC.
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President - General Counsel
