EXHIBIT 4.23
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
Corporation, a Delaware corporation ("DCC"), or registered assigns (together
with DCC, 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 $60 (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 the Company commences its
commercial broadcasts from orbiting satellites until 5:00 PM, New York City
time, on the date of the termination or expiration of the Agreement, dated as of
January 28, 2000, among the Company, DCC, Freightliner Corporation
("Freightliner") and Mercedes-Benz USA, Inc. ("Mercedes" and, together with DCC,
Freightliner and their respective subsidiaries and affiliates,
"DaimlerChrysler") (the "Expiration Date"), 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-1
Number of Shares: 4,000,000
Name of Warrantholder: DaimlerChrysler Corporation, a Delaware corporation
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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 500,000 Total Enabled Vehicles;
(b) with respect to an additional 500,000 shares of Common Stock, on
the date there are 1,000,000 Total Enabled Vehicles;
(c) with respect to an additional 500,000 shares of Common Stock, on
the date there are 2,000,000 Total Enabled Vehicles;
(d) with respect to an additional 1,000,000 shares of Common Stock,
on the date there are 3,000,000 Total Enabled Vehicles; and
(e) with respect to an additional 1,000,000 shares of Common Stock,
on the date there are 4,000,000 Total Enabled 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:
(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
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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 shall not 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 of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, without charge to any Warrantholder. Subject to the
provisions of this Section, upon such division, the Warrants may
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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 16, 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, Warrantholder shall give written notice to the Company of
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
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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.
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
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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 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
7
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
8
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 pro rata 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 with
respect to the issuance of shares of Common Stock pursuant to a rights offering
in which the holder hereof elects to participate under the provisions of this
Section 6.2.
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.
9
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
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.
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"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.
"Bylaws" shall mean the Amended and Restated Bylaws 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).
"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.
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"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 Xxxx-Xxxxx-Xxxxxx 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.
"Mitsubishi" shall mean Mitsubishi Motor Sales of America, Inc. or
any affiliate thereof or successor thereto.
"Mitsubishi Agreement" shall mean an agreement between the Company
and Mitsubishi pursuant to which the Company becomes the lead provider (as
defined or described in such agreement) of satellite digital audio radio
service with respect to new Mitsubishi vehicles sold or leased in the
United States.
"Mitsubishi Enabled Vehicle" shall mean a Mitsubishi vehicle which
is equipped to receive the Sirius Service, and not any Competing Service,
pursuant to the Mitsubishi Agreement.
"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
13
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 suitable for 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.
"Total Enabled Vehicles" shall mean, at any time, a number equal to
(i) the number of Eligible Vehicles at such time, plus (ii) if the Company
enters into the Mitsubishi Agreement, the number of Mitsubishi Enabled
Vehicles which have been produced at such time.
"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
14
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 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:
15
if to the Company, addressed to:
Sirius Satellite Radio Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
if to the Warrantholder, addressed to:
DaimlerChrysler Corporation
0000 Xxxxxxxx Xxxxx
CIMS 000-00-00
Xxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Assistant Secretary
Telecopy: (000) 000-0000
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.
12.10 Representations of the Company. The Company hereby represents
and warrants, as of the date hereof, to the Warrantholder as follows:
16
(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.
13. Preemptive Right. (a) If at any time after the date hereof and prior
to the Expiration Date, the Company proposes to issue shares of Common Stock
(excluding any warrants, options or securities or units comprising securities
convertible into or exchangeable for Common Stock or rights to acquire the same
issued as part of or simultaneously with any preferred stock or debt securities
of the Company) in an underwritten public offering, then the Company shall (i)
prior to the completion of such underwritten public offering, notify the
Warrantholder of such underwritten public offering and (ii) offer to issue to
the Warrantholder as part of such underwritten public offering, for cash, a
number of shares of Common Stock such that, after giving effect to the shares of
Common Stock issued in such underwritten public offering, the number of shares
of Common Stock owned by Warrantholder plus the shares of Common Stock
17
receivable by the Warrantholder upon exercise of any Warrants equals the same
percentage of the total number of shares of Common Stock issued and outstanding
immediately prior to the consummation of such offering as after giving effect to
such offering. The purchase price for such shares of Common Stock shall be equal
to the price of the shares of Common Stock sold in such underwritten public
offering (prior to deducting any underwriting discounts and commissions). The
Warrantholder must exercise its purchase rights hereunder in whole within five
Business Days after receipt of such notice from the Company and close such
purchase, by payment of immediately available funds, simultaneously with the
closing of such underwritten public offering. If after the date that the Company
notifies the Warrantholder of the proposed underwritten public offering of
Common Stock the actual number of shares of Common Stock offered is increased or
decreased as a result of demand for such Common Stock offering, then the Company
shall not be required to make an additional offer to the Warrantholder to give
effect to the increased or decreased size of such offering.
18
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
SIRIUS SATELLITE RADIO INC.
By: /s/. Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and
General Counsel
Dated: January 28, 2000
Attest:
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx Xxxxxx
Assistant Secretary
1
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)
_______________________________
(Xxxxxx Xxxxxxx)
_______________________________
(City) (State) (Zip Code)
Signed in the Presence of:
_______________________________
1
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)
_______________________________
(Xxxxxx Xxxxxxx)
_______________________________
(City) (State) (Zip Code)
Signed in the presence of:
_______________________________
