Exhibit 6
AMENDED AND RESTATED AMENDMENT TO RIGHTS AGREEMENT
AMENDED AND RESTATED AMENDMENT, dated December 22, 1998 (this
"Amendment"), by and between CD RADIO INC., a Delaware corporation (the
"Company"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of October 22, 1997 and amended as of October 13, 1998 and
November 13, 1998 (the "Rights Agreement");
WHEREAS, the Company proposes to issue and sell up to 1,350,000 shares
of its 9.2% Series A Junior Cumulative Convertible Preferred Stock, par value
$.001 per share ("Series A Preferred Stock"), and up to 650,000 shares of its
9.2% Series B Junior Cumulative Convertible Preferred Stock, par value $.001 per
share ("Series B Preferred Stock" and, together with the Series A Preferred
Stock, the "Junior Preferred Stock"), to Apollo Investment Fund IV, L.P., a
Delaware limited partnership ("AIF IV"), and Apollo Overseas Partners IV, L.P.,
a Cayman Islands limited partnership ("AOP IV" and, together with AIF IV, the
"Purchasers"), pursuant to a Stock Purchase Agreement, dated as of November 13,
1998 (the "Stock Purchase Agreement"), by and among the Company and the
Purchasers; and
WHEREAS, the Company may issue up to an additional 1,950,000 shares of
Series A Preferred Stock as dividends on outstanding shares of Series A
Preferred Stock and may issue up to an additional 1,450,000 shares of Series B
Preferred Stock as dividends on outstanding shares of Series B Preferred Stock,
in each case in lieu of paying dividends in cash on such shares;
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WHEREAS, the Board of Directors of the Company deems it desirable and
in the best interests of the Company and its stockholders to amend the Rights
Agreement to provide that the execution and delivery of the Stock Purchase
Agreement and the consummation of the transactions contemplated thereby (the
"Contemplated Transactions") do not and will not (i) result in the ability of
any Person to exercise any Rights (as defined in the Rights Agreement) under the
Rights Agreement, (ii) enable or require the Rights to separate from the shares
of common stock of the Company, par value $.001 ("Common Stock"), to which they
are attached or to be triggered or become exercisable, (iii) cause any
"Distribution Date" or "Shares Acquisition Date" (as defined in the Rights
Agreement) to occur or (iv) prior to the Closing Date (as defined in the Stock
Purchase Agreement), cause either Purchaser to "beneficially own" (as defined in
the Rights Agreement) any shares of Common Stock (the "Desired Changes");
WHEREAS, on November 13, 1998, the Company and the Rights Agent amended
the Rights Agreement (the "November Amendment") to exclude the Purchasers from
the definition of "Acquiring Person" in the Rights Agreement in respect of the
Junior Preferred Stock; and
WHEREAS, the Board of Directors of the Company deems it desirable and
in the best interests of the Company and its stockholders to amend and restate
the November Amendment to make certain corrections to the proviso excluding the
Purchasers from the definition of "Acquiring Person" in the Rights Agreement in
respect of the Junior Preferred Stock.
Accordingly, the parties agree as follows:
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1. AMENDMENT OF SECTION 1(A). The definition of "Acquiring Person" set
forth in paragraph 1(a) of the Rights Agreement is amended by adding the
following clause at the end of such Section 1(a):
"; provided, further, that Apollo Investment Fund IV, L.P., a Delaware
limited partnership (hereinafter referred to as "AIF IV"), and Apollo
Overseas Partners IV, L.P., a Cayman Islands limited partnership
(hereinafter referred to as "AOP IV"), and any of the Affiliates or
Associates of AIF IV or AOP IV that would otherwise be deemed to be
Beneficial Owners of the Company's 9.2% Series A Junior Cumulative
Convertible Preferred Stock (hereinafter referred to as the "Series A
Preferred Stock"), the Company's 9.2% Series B Junior Cumulative
Convertible Preferred Stock (hereinafter referred to as the "Series B
Preferred Stock" and, together with the Series A Preferred Stock, the
"Junior Preferred Stock"), or Common Shares (such Affiliates and
Associates, together with AIF IV and AOP IV, are hereinafter referred
to as the "Apollo Investors") shall not be, or be deemed to be, an
Acquiring Person by reason of the acquisition or beneficial ownership
of (w) shares of the Junior Preferred Stock acquired pursuant to the
Stock Purchase Agreement dated as of November 13, 1998 by and among the
Company, AIF IV and AOP IV, as amended from time to time, (x)
additional shares of Junior Preferred Stock acquired pursuant to
dividends declared on the Junior Preferred Stock, (y) Common Shares
acquired upon the exercise of conversion rights set forth in the
Certificates of Designations, Preferences and
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Relative, Participating, Optional and Other Special Rights of the
Junior Preferred Stock or (z) a number of Common Shares, in addition to
those referred to in clauses (w), (x) and (y) above, acquired by the
Apollo Investors, equal to, collectively, up to one percent (1%) of the
total number of Common Shares outstanding from time to time."
2. PRIOR AMENDMENTS. This Amendment shall supersede and replace the
November Amendment in its entirety.
3. MISCELLANEOUS. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any provision, covenant
or restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be effected, impaired or invalidated.
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EXECUTED as of the date set forth above.
CD RADIO INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
