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EXHIBIT 10.24.2
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.
SECOND AMENDMENT
TO PREFERRED STOCK INVESTMENT AGREEMENT
This SECOND AMENDMENT TO PREFERRED STOCK INVESTMENT AGREEMENT (this
"AMENDMENT") is dated as of March 14, 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 Amendment
(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, as amended by the First Amendment to Preferred Stock Investment
Agreement, dated as of March 7, 1997 (the "FIRST AMENDMENT", as so amended, the
"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 third Recital and
replacing such Recital with a new Recital as follows:
"WHEREAS, CDRD will have the option to sell to the
Investors a number of Preferred Shares [confidential portion
omitted] ("SECOND CLOSING SHARES") after the First Closing
Shares have been sold, subject to the terms and conditions set
forth in this Agreement."
1.2 AMENDMENT OF SECTION 1.1: PURCHASE AND SALE OF PREFERRED
SHARES. Section 1.1 of the Preferred Stock Investment Agreement is hereby
amended by deleting such Section in its entirety and substituting the following
therefor:
"Section 1.1 Purchase and Sale of Preferred Shares.
Upon the following terms and conditions, CDRD shall issue and
sell to each Investor severally, and each Investor severally
shall purchase from CDRD, the number of First Closing Shares
and up to the number of Second Closing Shares indicated next
to such Investor's name on Schedule I attached to this
Agreement."
1.3 AMENDMENT OF SECTION 1.4: THE SECOND CLOSING. Section
1.4(a)(i)(A) of the Preferred Stock Investment Agreement is hereby amended
deleting such clause in its entirety and substituting the following therefor:
"(A) [confidential portion omitted] after written notice
("SECOND CLOSING NOTICE") from CDRD electing to sell an
aggregate number to all Investors of Second Closing Shares
specified in such Second Closing Notice [confidential portion
omitted] and which Second Closing Notice shall be delivered to
the Investors not earlier than
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the First Closing Date and not later than [confidential
portion omitted] after the First Closing Date; and "
Section 1.4 of the Preferred Stock Investment Agreement is hereby further
amended by adding after the last sentence of clause (a) thereof the following
sentence:
"On the Second Closing Date each Investor shall purchase a
number of Second Closing Shares equal to the total number of
Second Closing Shares to be sold to all Investors on such date
as specified in the Second Closing Notice multiplied
[confidential portion omitted] of the number of First Closing
Shares purchased by such Investor divided [confidential
portion omitted] of First Closing Shares sold to all
Investors."
1.4 NEW SECTION 3.14: MINIMUM DRAW AMOUNT. The Preferred
Stock Investment Agreement is hereby amended by adding a new Section 3.14 as
follows:
"Section 3.14 Minimum Draw Amount. If CDRD
[confidential portion omitted], CDRD shall [confidential
portion omitted], however, that in no event shall CDRD be
permitted to [confidential portion omitted] to Investors
[confidential portion omitted] issuable under this Agreement
nor required to sell more Preferred Shares to Investors
[confidential portion omitted]."
1.5 AMENDMENT OF SECTION 7.3: ENTIRE AGREEMENT; AMENDMENTS;
ADDITIONAL INVESTORS; INCREASED COMMITMENTS. Section 7.3(b) of the Preferred
Stock Investment Agreement is hereby amended by deleting such clause in its
entirety and substituting the following therefor:
"(b) (i) Any Investor may increase its commitment under
this Agreement at any time on or prior to the First
Closing Date to purchase such number of First Closing
Shares and up to such number of 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 number of additional
First Closing Shares and up to the number of
additional 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 up
to such number of 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 most recent amendment to the
Preferred Stock Investment Agreement, as amended to
the date of such execution. Upon delivery of any
such counterpart and acceptance thereof by CDRD, such
counterpart shall be attached to such 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,
automatically shall be revised to reflect the new allocation
of First Closing Shares and Second Closing Shares to such
Investor
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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."
1.6 AMENDMENT TO SECTION 7.1: PLACEMENT AGENT FEE. Section
7.1(B) of the Preferred Stock Investment Agreement is hereby amended by adding
after the first occurrence of the words "Preferred Shares" in such clause, the
parenthetical "(or securities of CDRD that are either pari passu or junior in
seniority, structure and maturity to the Preferred Shares)".
1.7 AMENDMENT OF SCHEDULE A TO EXHIBIT 2: PREFERRED CUSTODY
SERVICES ESCROW AGREEMENT.
(A) Schedule A to Exhibit 2 to the Preferred Stock Investment
Agreement is hereby amended by deleting clause 3(a) thereof in its entirety and
substituting therefor the following:
"(a) at the close of [confidential portion
omitted], if (1) [confidential portion omitted] (as defined
below) is met and (2) each of [confidential portion omitted],
that Party A have at that time [confidential portion omitted]
(from the proceeds from the sale of the Second Closing Shares
and/or any other binding commitments that are either pari
passu or junior in seniority, structure and maturity to the
Preferred Shares) for an amount sufficient, together with the
Escrowed Property to be released to Party A, to enable Party A
to [confidential portion omitted]; or"
(B) Schedule A to Exhibit 2 is hereby further amended by
deleting the last two provisos in Section 4(a) thereof.
(C) Schedule A to Exhibit 2 is hereby further amended by
deleting the second full paragraph of Exhibit A thereof in its entirety and
replacing such paragraph with the following:
"The following conditions for release of the Escrowed
Property have been met: (i) [confidential portion omitted]
and (ii) each of the conditions set forth in Article IV of the
Investment Agreement and applicable to the First Closing have
been fulfilled or waived in accordance with the Investment
Agreement."
(D) Schedule A to Exhibit 2 is hereby further amended by
deleting Annex A thereto in its entirety and replacing such Annex A with Annex
A hereto.
(E) Schedule A to Exhibit 2 is hereby further amended by
deleting the contents of Exhibit B thereto in their entirety and replacing such
contents with the words "Intentionally Omitted".
SECTION 2. MISCELLANEOUS
2.1 REFERENCE TO AND EFFECT ON THE PREFERRED STOCK
INVESTMENT AGREEMENT.
(i) 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 the First
Amendment to Preferred Stock Investment Agreement, dated as of March
7, 1997, and as further amended by this Amendment.
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(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. 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.
[Remainder of page intentionally left blank]
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ANNEX A
ANNEX A TO EXHIBIT A TO SCHEDULE A TO ESCROW AGREEMENT
DETERMINATION OF [CONFIDENTIAL PORTION OMITTED]
[confidential portion omitted]
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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