Exhibit 4.48
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS
SECURITY 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
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS. THE WARRANT
REPRESENTED BY THIS CERTIFICATE MUST BE EXERCISED PRIOR TO OR ON
MARCH 31, 2015.
SIRIUS XM RADIO INC.
COMMON STOCK PURCHASE
WARRANT
This certifies that, for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Sirius XM Radio Inc., a Delaware corporation (the
“Company”), grants to NFL Enterprises LLC (the
“Warrantholder”), the right to subscribe for and
purchase from the Company an aggregate of 4,555,555 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 $2.50 (such purchase price per share, 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 Vesting Date (as defined below) with respect to any tranche
of Warrant Shares until 5:00 PM, New York City time, on
March 31, 2015 (the “Expiration Date”), all
subject to the terms, conditions and adjustments herein set forth,
including but not limited to the Media Vesting Conditions (as
defined below).
Certain capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
to them in Section 10.
Certificate No.: M-
Number of Warrant Shares:
4,555,555
Name of Warrantholder: NFL
Enterprises LLC
Section 1. Duration and Exercise
of Warrant; Limitations on Exercise; Payment of Taxes
.
1.1 Exercisability of Warrant
. (a) The Warrant Shares issuable under this Warrant shall be
divided into thirty-two (32) equal tranches of one hundred
forty-two thousand three hundred sixty one and ten one-hundreths
(142,361.10) Warrant Shares. Subject to the terms and
conditions set forth herein, the right to exercise this Warrant
shall vest in the Warrantholder, and this Warrant shall become
exercisable, on the earliest of the dates (each such date, a
“Vesting Date”) on which either of the following sets
of conditions in clauses (i) or (ii) below have been
satisfied:
(i) with respect to each tranche of
142,361.10 Warrant Shares, set forth in Schedule 1.1 hereto, the
following conditions (the conditions contained in this clause (i),
the “Media Vesting Conditions”):
(1) the Warrantholder and the
Company shall have developed a marketing plan in accordance with
the terms of Exhibit A hereof, to be implemented by the
Warrantholder in respect of the NFL Season (the “Marketing
Plan”), which plan shall include (x) not less than three
(3) of the five (5) media delivery alternatives listed on
Exhibit A attached hereto (each of the five (5) being a
“Media Delivery Alternative”), as the same may be
modified by the mutual written agreement of the Warrantholder and
the Company from time to time and (y) Prominent In-Game
Exposure;
(2) the Warrantholder shall have
implemented the Marketing Plan in respect of the NFL Season to the
reasonable satisfaction of the Company;
(3) during the NFL Season, the
National Football League member club (each, a “Club”
and collectively, the “Clubs”) noted on Schedule 1.1
with respect to such tranche, shall have delivered to the Company,
at no charge to the Company, at least ten (10) hours of audio
programming relating to the NFL Season selected by such Club and
reasonably acceptable to the Company for use by the Company on the
NFL Satellite Radio Network (the “Programming”), which
reasonably acceptable Programming may include: (A) shoulder
programming broadcast by such Club or its local radio affiliates
(e.g., coaches shows, player shows, etc.); (B) pre-game and
post-game shows broadcast by such Club or its local radio
affiliates; (C) local television programming broadcast by such
Club or its local television programming affiliates that is
suitable for radio broadcast; (D) original programming created
by such Club for the Company’s service; or (E) internet
programming broadcast by such Club that is of a quality suitable
for radio broadcast; provided that if any Club chooses not
to provide such Programming, (x) NFLE may provide alternative
programming, at no cost to the Company, specifically themed to that
Club and relating to the NFL Season that is reasonably acceptable
to the Company in order to satisfy the Programming requirement of
this clause with respect to such tranche or (y) another Club
may provide, at no charge to the Company, at least ten
(10) hours of Programming relating to the NFL Season themed to
and selected by such Club (in addition to any other Programming
provided by such Club to the Company to fulfill the requirement of
this clause 1.1(a)(i)(3)) and reasonably acceptable to the Company
in order to satisfy the Programming requirement of this clause with
respect to such tranche; provided further that programming
with respect to any single Club, whether provided by NFLE or such
Club, shall not satisfy this clause 1.1(a)(i)(3) with respect to
more than three (3) tranches of this Warrant;
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(4) the Warrantholder shall have
certified to the Company in writing that the conditions contained
in clauses (2) and (3) above have been fulfilled and that
one or more tranches of Warrant Shares have vested (the
“Vesting Certificate”), and shall have provided the
Company with reasonable documentation in support of such
certification; and
(5) the Company shall have
countersigned the Vesting Certificate, which countersignature shall
not be unreasonably withheld; or
(ii) with respect to all Warrant
Shares issuable pursuant to this Warrant that have not previously
(1) vested in accordance with the Media Vesting Conditions or
(2) lapsed in accordance with Section 1.1(b) hereof, the
occurrence of a Fundamental Change (x) to which the
Warrantholder consents, or (y) as to which the
Warrantholder’s consent is not required pursuant to the
Rights Agreement, and in either of such events such Warrant Shares
shall vest in full upon the effective date of such Fundamental
Change.
(b) (i) Any portion of this Warrant
that has not vested pursuant to Section 1.1(a) hereof prior to
the earlier to occur of (1) the termination of the Rights
Agreement following a Change of Control to which the Warrantholder
is required to consent pursuant to the Rights Agreement, but does
not consent, or (2) March 31, 2009, shall lapse at 12:01
AM, New York City time, on that date.
(ii) Subject to Section 6.4,
any previously vested but unexercised portion of this Warrant shall
remain outstanding following a Change of Control, regardless of
whether the Warrantholder consents to such Change of
Control.
(c) Notwithstanding any of the
foregoing, the Company shall not, prior to the Expiration Date,
take any action which would have the effect of preventing or
disabling the Company from (i) delivering the Warrant Shares
to the Warrantholder upon exercise of the Warrant or
(ii) otherwise performing the Company’s obligations
under this Warrant.
1.2 Duration and Exercise of
Warrant . Subject to the terms and conditions set forth herein,
this 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 and including the Expiration
Date; and
(b) (i) 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, or (ii) in the
alternative, the Warrantholder may exercise its right, on any
Business Day prior to and including the Expiration Date, to receive
Warrant Shares on a net basis, such that,
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without the exchange of any funds,
the Warrantholder receives that number of Warrant Shares otherwise
issuable upon exercise of this Warrant less that number of Warrant
Shares having an aggregate Current Market Value at the time of
exercise equal to the aggregate Exercise Price that would otherwise
have been paid in respect of this Warrant by the
Warrantholder.
The Company agrees that such Warrant
Shares shall be deemed to be issued to the Warrantholder, or to one
or more Clubs, if so indicated on the Exercise Form, 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, the obligation to
deliver the Warrant Shares upon the exercise of this Warrant shall
be subject to the conditions that no preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, shall be in effect which would
prohibit such sale and delivery, and any applicable waiting period
under the HSR Act shall have expired or been terminated.
1.4 Warrant Shares
Certificates . A duly issued stock certificate or certificates
for the Warrant Shares specified in the Exercise Form shall be
delivered to, or at the direction of, the Warrantholder within
three (3) Business Days after receipt by the Company of the
Exercise Form and receipt of payment of the purchase price. At the
time of delivery of the stock certificate, the Company shall mark
on Schedule 1.4 hereto the number of Warrant Shares delivered, and
the right to subscribe for and purchase from the Company the
Warrant Shares represented by this Warrant shall be deemed reduced
by the number of Warrant Shares so delivered.
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.
Section 2. Restrictions on
Transfer; Restrictive Legends . Except as expressly provided in
this Section 2, this Warrant may not be transferred by the
Warrantholder. The Warrantholder may instruct the Company to issue
Warrant Shares upon exercise of this Warrant to one or more Clubs,
by indicating such on the Exercise Form. In addition, the
Warrantholder may transfer the Warrant Shares it receives upon
exercise of vested portions of this Warrant to one or more Clubs.
This Warrant and all or any portion of the Warrant Shares issued
upon exercise of this Warrant may also be transferred pursuant to
any customary pledge, hypothecation, or other similar disposition,
including, without limitation, for purposes of securing any
collateralized lending, hedging, or other similar brokers’
transaction, that does not constitute a current transfer of the
actual ownership of underlying shares. The Warrantholder, by its
acceptance of this Warrant, acknowledges and confirms that this
Warrant and any Warrant Shares issued upon exercise of this Warrant
have not been registered under the Securities Act or any applicable
state securities laws, and may not be sold or transferred except in
compliance with and subject to the Securities Act and such state
securities laws. Unless and until this Warrant and such Warrant
Shares have
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been registered under the Securities Act and
such state securities laws, the Company may require, as a condition
to effecting any sale or transfer of this Warrant or such Warrant
Shares on the books of the Company, an opinion of counsel
reasonably satisfactory to the Company to the effect that an
exemption from registration under the Securities Act and such state
securities laws is available for the proposed transfer or
assignment and, if applicable, a certification reasonably
satisfactory to counsel for the Company in its professional
determination from the transferee that it is an “accredited
investor” as defined under the Securities Act and regulations
promulgated thereunder. Any purported sale or transfer of this
Warrant and/or such Warrant Shares shall be null and void unless
made in compliance with the conditions set forth in this
Section 2.
The restrictions imposed by this
Section 2 upon the transferability of the Warrant Shares shall
terminate with respect to any Warrant Shares: (a) when and so
long as any such Warrant Shares shall have been effectively
registered under the Securities Act and any applicable state
securities laws and transferred in compliance therewith or
(b) when the Company shall have received an opinion of counsel
reasonably satisfactory to it that any such Warrant Shares may be
transferred without registration thereof under the Securities Act
and any applicable state securities laws.
Except as otherwise permitted by
this Section 2, each Warrant shall (and each Warrant issued in
substitution for any Warrant pursuant to Section 4 shall) be
stamped or otherwise imprinted with a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS
SECURITY 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
REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS. THE WARRANT
REPRESENTED BY THIS CERTIFICATE MUST BE EXERCISED PRIOR TO OR ON
MARCH 31, 2015.
Except as otherwise permitted by
this Section 2, each stock certificate for Warrant Shares
issued upon the exercise of this 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 REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH
LAWS.
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Notwithstanding the foregoing, the
Warrantholder may require the Company, without expense to the
Warrantholder, to issue a stock certificate for Warrant Shares,
without a legend, if either (i) such Warrant Shares 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 Shares.
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 of this Warrant or the Warrant Shares, if
applicable.
Section 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 taxes, Liens, security interests, pledges, charges
and other 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 actions 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.
Section 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.
Section 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 not be
affected by any notice to the contrary.
Section 6. Antidilution
Provisions .
6.1 Changes in Common Stock .
In the event that at any time and from time to time the Company
shall (i) pay a dividend or make a distribution on Common
Stock in shares of Common Stock or other shares of Capital Stock,
(ii) subdivide its outstanding shares of Common
Stock
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into a larger number of shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) increase or
decrease the number of shares of Common Stock outstanding by
reclassification, recapitalization or reorganization of its Common
Stock, then, in each such case, the number of shares of Common
Stock issuable upon exercise of this Warrant immediately after the
happening of such event shall be adjusted so that, after giving
effect to such adjustment, the Warrantholder shall be entitled to
receive the number of shares of Common Stock that the Warrantholder
would have owned or have been entitled to receive had this Warrant
been exercised immediately prior to the happening of the events
described above (or, in the case of a dividend or distribution of
Common Stock, immediately prior to the record date therefor), and
the Exercise Price shall be adjusted to the price (calculated to
the nearest 100th of one cent) determined by multiplying the
Exercise Price immediately prior to such event by a fraction, the
numerator of which shall be the number of Warrant Shares
purchasable upon the exercise of this Warrant immediately prior to
such event and the denominator of which shall be the number of
Warrant Shares purchasable after the adjustment referred to above.
An adjustment made pursuant to this Section 6.1 shall become
effective immediately after the distribution date, retroactive to
the record date therefor in the case of a dividend or distribution
in shares of Common Stock or other shares of Capital Stock, and
shall become effective immediately after the effective date in the
case of a subdivision, combination or reclassification.
6.2 Cash Dividends and Other
Distributions . In the event that at any time and from time to
time the Company shall distribute to all holders of Common Stock
(i) any dividend or other distribution (including any dividend
or distribution made in connection with a consolidation or merger
in which the Company is the continuing corporation) of cash,
evidences of its indebtedness, shares of its Capital Stock or any
other properties or securities or (ii) any options, warrants
or other rights to subscribe for or purchase any of the foregoing
(other than, in the case of clause (i) and (ii) above,
(A) any dividend or distribution described in Section 6.1
and (B) any rights, options, warrants or securities described
in Section 6.3 or Section 6.4), then the number of shares
of Common Stock issuable upon the exercise of this Warrant
immediately prior to such record date for any such dividend or
distribution shall be increased to a number determined by
multiplying the number of shares of Common Stock issuable upon the
exercise of this Warrant immediately prior to such record date for
any such dividend or distribution by a fraction, the numerator of
which shall be the Current Market Value per share of Common Stock
on the record date for such dividend or distribution, and the
denominator of which shall be such Current Market Value per share
of Common Stock less the sum of (x) the amount of cash, if
any, distributed per share of Common Stock and (y) the then
fair value (as determined in good faith by the Board of Directors,
whose determination shall be evidenced by a board resolution, a
copy of which will be sent to the Warrantholder upon request) of
the portion, if any, of the distribution applicable to one share of
Common Stock consisting of evidences of indebtedness, shares of
stock, securities, other property, warrants, options or
subscription or purchase rights; and the Exercise Price shall be
adjusted to a number determined by dividing the Exercise Price
immediately prior to such record date by the above fraction. Such
adjustments shall be made, and shall only become effective,
whenever any dividend or distribution is made; provided that
the Company is not required to make an adjustment pursuant to this
Section 6.2 if at the time of such distribution the Company
makes the same distribution to the Warrantholder as it makes to
holders of Common Stock pro rata based on the number of shares of
Common Stock for which this Warrant is exercisable. No adjustment
shall be made pursuant to this Section 6.2 which
shall
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have the effect of decreasing the number of
shares of Common Stock issuable upon exercise of this Warrant or
increasing the Exercise Price.
6.3 Issuance of Common Stock or
Rights or Options . In the event that at any time or from time
to time the Company shall issue shares of Common Stock or rights,
options or warrants or securities convertible into or exchangeable
for Common Stock, other than in a bona fide underwritten public
offering by or through a syndicate managed by an investment bank of
national or regional standing, for a consideration per share
(which, in the case of convertible, exchangeable or exercisable
securities shall be the amount received by the Company in
consideration for the sale and issuance of such convertible,
exchangeable or exercisable securities plus the minimum aggregate
amount of additional consideration payable to the Company upon
conversion, exchange or exercise thereof (as determined in good
faith by the Board of Directors, whose determination shall be
evidenced by a board resolution, a copy of which will be sent to
the Warrantholder upon request), provided that the value
attributable to such convertible, exchangeable or exercisable
securities when issued as part of a unit with debt or other
obligations of the Company shall be excluded to the extent it is a
result of calculating the discount applicable to such debt or other
obligations of the Company under generally accepted accounting
principles) that is less than the greater of (a) the Current
Market Value per share of Common Stock as of the date the Company
agrees in writing to issue such shares and (b) the
Exercis
