Common use of Xxxxxxxx and Xx Clause in Contracts

Xxxxxxxx and Xx. Xxxxx had dinner and continued to discuss the governance and management of the combined company. On December 4, 2019, Xx. Xxxxxxxx updated Xx. Xxxx on his discussion with Xx. Xxxxx on the governance and management of the combined company. Xx. Xxxx instructed Xx. Xxxxxxxx to discuss this matter with each of the members of the Xperi board and to provide Xx. Xxxx with an update on their views. On December 5, 2019, Xx. Xxxxx communicated to Xx. Xxxxxxxx by telephone conference call that the TiVo board had discussed Xxxxx’s proposals for the governance and management of the combined company and agreed with all of the proposals other than Xx. Xxxxxxxx being the Chief Executive Officer of the combined company. Xx. Xxxxx noted that Xxx Xxxxx, the Chairman of the TiVo board, would call Xxxx Xxxx, the Chairman of the Xperi board, to discuss the officer designations. Later that day, Xx. Xxxxxxxx updated each member of the Xperi board to understand their current thinking on proposed governance and management of the combined company. The Xperi board reiterated their preference that Xx. Xxxxxxxx and the current senior management of Xperi run the combined company. The Xperi board believed that having a shared leadership model with Xx. Xxxxxxxx as Executive Chairman and Xx. Xxxxx as Chief Executive Officer or vice-versa was sub-optimal and would create internal confusion. Xx. Xxxxxxxx provided an update of his discussions with the Xperi board to Xx. Xxxx by email and Xx. Xxxx asked Xx. Xxxxxxxx to communicate the Xperi board’s position to Xx. Xxxxx. Later that day, Xx. Xxxxxxxx called Xx. Xxxxx to reiterate that the Xperi board felt it was important that Xperi management should hold key management positions in the combined company, including the Chief Executive Officer. On December 6, 2019, Cooley delivered a revised draft of the merger agreement, with feedback from TiVo’s management to Skadden. The revised draft contained TiVo’s proposal on certain key legal issues, including termination fees, closing conditions, “no-shop” provisions and representations and warranties. Certain issues such as corporate governance of HoldCo, treatment of equity awards and financing related provisions were identified as requiring further due diligence and discussion among the business principals. On December 7, 2019, Xx. Xxxx discussed the management and governance of the combined company with Xx. Xxxxx by telephone. Xx. Xxxxx explained that the TiVo board would prefer that existing members of TiVo management hold key management positions in the combined company and that existing TiVo directors comprise a majority of the combined company’s board of directors. Xx. Xxxx and Xx. Xxxxx agreed that each would instruct Xx. Xxxxxxxx and Xx. Xxxxx to discuss and seek to agree to a compromise position on management and governance issues. On December 7, 2019, representatives of Xperi and Skadden discussed the revised draft of the merger agreement provided by Cooley on December 6, including the treatment of equity awards, deletions of certain closing conditions and changes to the financing cooperation covenant, among other legal issues.

Xxxxxxxx and Xx. Xxxxx had dinner also discussed the status of negotiations of the merger agreement and continued the financing for the combined company and agreed to schedule an all-hands call with Xperi and TiVo and each of their respective advisors to discuss steps to close the transaction later that day. Later that day, representatives of TiVo, Xperi, LionTree, Centerview, Cooley and Skadden held a due diligence check-in telephone conference call to discuss the governance status of due diligence between the parties and management the timeline to signing. Representatives of the combined companyCooley and Skadden also had a follow-up call to discuss bring-down due diligence matters later that evening. On December 416, 2019, representatives of TiVo, Xperi, LionTree, Centerview, Cooley and Skadden held a telephone conference call to discuss the status of due diligence and the status of the financing commitments. Later that morning, TiVo director Xx. Xxxxxxxx updated Xx. Xxxx on his discussion Xxxxxxx had a call with Xx. Xxxxx on the governance and management of the combined company. Xx. Xxxx instructed Xx. Xxxxxxxx to discuss this matter with each of the members of the Xperi board and to provide Xx. Xxxx with an update on their views. On December 5, 2019, Xx. Xxxxx communicated to Xx. Xxxxxxxx by telephone conference call that the TiVo board had discussed Xxxxx’s proposals Xxxxxxxx’x vision for the governance and management of the combined company and agreed with all of the proposals other than Xx. Xxxxxxxx being the Chief Executive Officer of the combined company. In the afternoon on December 16, the TiVo board held a meeting, with representatives of TiVo management, LionTree and Cooley in attendance. Representatives of Cooley provided an update on the current status and resolution of transaction issues previously open and under board discussion, including those related to the certainty of transaction completion. TiVo management provided an update on the negotiations and status of the merger agreement and financing commitments. Questions were asked, and a full discussion ensued, including a discussion of remaining open issues and process, as well as consideration of TiVo remaining an independent standalone company and other potential strategic alternatives that may be reasonably available to it. Representatives of LionTree then reviewed certain preliminary financial analyses undertaken by LionTree related to the proposed transactions. After the board meeting, XxXx director Xx. Xxxxx noted that Xxx Xxxxx, the Chairman of the TiVo board, would Xxxxxx had a call Xxxx Xxxx, the Chairman of the Xperi board, to discuss the officer designations. Later that day, with Xx. Xxxxxxxx updated each member of the Xperi board to understand their current thinking on proposed governance and management of discuss Xx. Xxxxxxxx’x vision for the combined company. The Xperi board reiterated their preference that Xx. Xxxxxxxx and the current senior management of Xperi run the combined company. The Xperi board believed that having a shared leadership model with Xx. Xxxxxxxx as Executive Chairman and Xx. Xxxxx as Chief Executive Officer or vice-versa was sub-optimal and would create internal confusion. Xx. Xxxxxxxx provided an update of his discussions with the Xperi board to Xx. Xxxx by email and Xx. Xxxx asked Xx. Xxxxxxxx to communicate the Xperi board’s position to Xx. Xxxxx. Later that dayevening on December 16, Xx. Xxxxxxxx called Xx. Xxxxx to reiterate that the Xperi board felt it was important that Xperi management should hold key management positions in the combined company, including the Chief Executive Officer. On December 6, 2019, Cooley delivered Skadden sent a revised draft of the merger agreement, with feedback from TiVo’s management to Skadden. The revised draft contained TiVo’s proposal agreement reflecting further discussion amongst principals on certain key legal issues, including termination fees, issues regarding closing conditions, “no-shop” provisions conditions and representations and warranties. Certain issues such as corporate governance of HoldCo, treatment of equity awards and financing related provisions were identified as requiring further due diligence and discussion among the business principalsgovernance. On December 717, 2019, Cooley held further discussions with TiVo on the latest draft merger agreement and the remaining issues relating to closing conditionality. Additionally, TiVo director Xx. Xxxx discussed the management and governance of the combined company had a call with Xx. Xxxxx by telephone. Xx. Xxxxx explained that the TiVo board would prefer that existing members of TiVo management hold key management positions in the combined company Xxxxxxxx to discuss his background and that existing TiVo directors comprise a majority of experience, and vision for the combined company’s board of directors. Xx. Xxxx and Xx. Xxxxx agreed that each would instruct Xx. Xxxxxxxx and Xx. Xxxxx to discuss and seek to agree to a compromise position on management and governance issues. On December 7, 2019, representatives of Xperi and Skadden discussed the revised draft of the merger agreement provided by Cooley on December 6, including the treatment of equity awards, deletions of certain closing conditions and changes to the financing cooperation covenant, among other legal issues.

Xxxxxxxx and Xx. Xxxxx agreed to present a structure under which Xx. Xxxxxxxx would be the Executive Chairman of the combined company’s board of directors for a term of two years, after which time Xx. Xxxxxxxx would become a director. Xx. Xxxxx would be the Chief Executive Officer of the combined company. The board of the combined company would be seven members comprised of Xx. Xxxxxxxx, Xx. Xxxxx, three independent directors appointed by Xperi and two independent directors appointed by TiVo. Later that day, Xx. Xxxxxxxx communicated the proposal to Xx. Xxxx who said he would need to discuss this in detail with the Xperi board. Later in the day on December 9, 2019, the TiVo board met and Xx. Xxxxx reviewed a discussion he had dinner with Xx. Xxxx regarding the potential structure of the combined company board of directors, and continued the potential Chief Executive Officer of the combined company. The TiVo board agreed on a response to Xperi regarding the issues raised, and alternatives to the extent that the response was unacceptable to Xperi, noting that these issues should not preclude reaching agreement on an otherwise viable transaction. On December 10, 2019, representatives of TiVo participated in a telephone conference call with representatives of RBC Capital Markets, which we refer to as RBC, and one other potential financing source to facilitate their due diligence on TiVo as potential financing sources for the combined company. Over the course of the remainder of that week, representatives of TiVo held conference calls with Bank of America Xxxxxxx Xxxxx and additional calls with RBC regarding TiVo’s financial and business projections. Each of RBC, Bank of America Xxxxxxx Xxxxx and one other potential financing source committed to provide feedback by December 12 on the key terms at which they would be willing to provide a financing commitment to finance the combined company. On December 10, 2019, Skadden sent a revised draft of the merger agreement to Cooley and offered to discuss any open issues around treatment of equity awards and certain tax related provisions on a telephone call. On December 11, 2019, representatives of TiVo and Cooley met at Xxxxxx’x offices in Palo Alto to discuss open issues on the merger agreement and coordinate due diligence efforts. On December 11, 2019, Xx. Xxxxx called Xx. Xxxxxxxx to suggest that Xx. Xxxxxxxx should meet with Xxxx Xxxxxxxxxxx, a director of TiVo, the following day to discuss the proposed transaction and the combined company. On December 12, 2019, Xx. Xxxxxxxx met with Xx. Xxxxxxxxxxx in Los Angeles, California. Xx. Xxxxxxxxxxx asked for an update on Xperi’s business and the potential of Xperi’s new product. Xx. Xxxxxxxxxxx noted that the TiVo board favored a joint leadership structure for the combined company and that the exchange ratio for the proposed all-stock merger suggested that TiVo should appoint four members of the board of the combined company and Xperi should appoint three members of the combined company. Xx. Xxxxxxxx noted to Xx. Xxxxxxxxxxx that he believed the management and governance of the combined company was an important factor in the Xperi board’s comfort with the proposed transaction, but that this was a matter for the Xperi board to discuss. On December 12, 2019, representatives of TiVo and KPMG held a telephone conference call to discuss the status and findings of KPMG’s financial due diligence of Xperi on behalf of TiVo. On December 12, 2019, representatives of TiVo, LionTree, Xperi and Centerview held a follow-up diligence call to review Xperi’s additional product customer diligence questions. On December 12, 2019, Cooley sent a revised draft of the merger agreement to Skadden. On December 13, 2019, Xx. Xxxxx called Xx. Xxxxxxxx to discuss the governance and management of the combined company, the status of negotiations of the merger agreement and financing for the combined company. Later that day, the Xperi board met via telephone conference to discuss the status of discussions with XxXx. Representatives of Centerview and Skadden attended. Xx. Xxxxxxxx reminded the Xperi board that the parties had tentatively agreed on a TiVo exchange ratio (based on each company’s current equity capital structure) and the pro forma ownership split of the combined company, but had not yet agreed on governance of the combined company. Xx. Xxxx described his ongoing discussions regarding the size and composition of the combined company’s board of directors, the chairman of the combined company’s board of directors and the leadership of the combined company’s senior management team. Xx. Xxxx noted that TiVo was seeking greater representation on the combined company’s board and had recently expressed interest in a leadership structure in which Xx. Xxxxx would become the Chief Executive Officer of the combined company. The Xperi board then discussed its previously expressed consensus view that the strategic and financial underpinnings of the transaction depended, in part, on the combined company’s ability to harvest synergies through the combination and much of the value upside for the Xperi stockholders depended, in part, on the successful execution of the plan presented by management. The Xperi board discussed the fact that retaining management of the combined company, through board composition and management control, were important factors in the Xperi board’s comfort with the transaction. Xx. Xxxx indicated that he would continue discussions with XxXx on these matters and report back to the Xperi board. On December 413, 2019, representatives of TiVo, LionTree, Xperi and Centerview held an overall check-in call to discuss the status of due diligence on both sides and to review open items and next steps. Representatives of TiVo, LionTree, Xperi and Centerview also held a follow-up IP diligence call to review the status of Xperi’s IP licensing customer negotiations and ongoing litigation. On December 13, 2019, representatives of Cooley and Skadden engaged in discussions regarding open issues in the proposed merger agreement, including various closing conditions and deal protection issues. Following the discussion, Cooley and Skadden agreed to relay the respective positions of the other side to their respective clients. On December 14, 2019, Xx. Xxxxxxxx updated Xx. Xxxx on his discussion with called Xx. Xxxxx on to discuss the governance and management of the combined company. Xx. Xxxx instructed Xx. Xxxxxxxx to discuss this matter with each of the members of explained that the Xperi board and to provide Xx. Xxxx with an update board’s decision was conditioned on their views. On December 5, 2019, Xx. Xxxxx communicated to Xx. Xxxxxxxx by telephone conference call that the TiVo board had discussed XxxxxXperi’s proposals for the governance and senior management of running the combined company and agreed with all of the proposals other than Xx. Xxxxxxxx being the Chief Executive Officer of the combined company. Xx. Xxxxx noted that Xxx Xxxxx, the Chairman of the TiVo board, would call Xxxx Xxxx, the Chairman of the Xperi board, for Xperi’s directors to discuss the officer designations. Later that day, Xx. Xxxxxxxx updated each member of the Xperi board to understand their current thinking on proposed governance and management of the combined company. The Xperi board reiterated their preference that Xx. Xxxxxxxx and the current senior management of Xperi run the combined company. The Xperi board believed that having a shared leadership model with Xx. Xxxxxxxx as Executive Chairman and Xx. Xxxxx as Chief Executive Officer or vice-versa was sub-optimal and would create internal confusion. Xx. Xxxxxxxx provided an update of his discussions with the Xperi board to Xx. Xxxx by email and Xx. Xxxx asked Xx. Xxxxxxxx to communicate the Xperi board’s position to Xx. Xxxxx. Later that day, Xx. Xxxxxxxx called Xx. Xxxxx to reiterate that the Xperi board felt it was important that Xperi management should hold key management positions in the combined company, including the Chief Executive Officer. On December 6, 2019, Cooley delivered a revised draft of the merger agreement, with feedback from TiVo’s management to Skadden. The revised draft contained TiVo’s proposal on certain key legal issues, including termination fees, closing conditions, “no-shop” provisions and representations and warranties. Certain issues such as corporate governance of HoldCo, treatment of equity awards and financing related provisions were identified as requiring further due diligence and discussion among the business principals. On December 7, 2019, Xx. Xxxx discussed the management and governance of the combined company with Xx. Xxxxx by telephone. Xx. Xxxxx explained that the TiVo board would prefer that existing members of TiVo management hold key management positions in the combined company and that existing TiVo directors comprise a majority of the combined company’s board of directors. Xx. Xxxx suggested that the board of the combined company should comprise three independent directors from each of Xperi and TiVo with the independent directors selecting the chairman of the board, and Xx. Xxxxxxxx, as the Chief Executive Officer of the combined company, filling the seventh board seat. Xx. Xxxxx agreed that each would instruct Xxto discuss this proposal with the TiVo board. Xxxxxxxx In the morning on December 14, 2019, the strategic committee of the TiVo board held a telephone conference call, with representatives of Cooley and XxxxXxxx, to discuss the status of the overall transaction, including the status of due diligence, financing and merger agreement negotiations. Included in the review was a discussion of open issues related to deal protection terms, conditions to closing, and governance structure of the post-combination parent company. In the afternoon on December 14, 2019, Cooley and the strategic committee updated the full TiVo board by telephone on the status of the transaction. Xx. Xxxxx provided an update on the status of discussions with the banks on the debt financing commitments. The TiVo board also discussed at length the corporate governance structure of the combined entity post-closing, including who would occupy the role of Chief Executive Officer and the composition of the combined board. Cooley also advised on the status of merger agreement negotiations, including open issues relating to discuss and seek closing conditionality. The TiVo board discussed various considerations, including deal structure, ownership of the combined company (which would have implied a premium to agree to a compromise position their then- current share price based on management and governance issues. On December 7, 2019, representatives the prevailing trading prices of Xperi and Skadden discussed the revised draft TiVo at such time) and overall value to TiVo stockholders in context of the merger agreement provided open items involving corporate governance and deal certainty. The TiVo board agreed to continue discussions with Xperi and signal broad acceptance of the corporate governance structure proposed by Cooley on December 6Xxxxx, but that TiVo did not agree to the closing conditions proposed by Xperi. Members of the TiVo management then left the meeting and a discussion ensued regarding various compensation and executive retention matters associated with the proposed transaction, including the treatment of the transaction as a “Change of Control” for purposes of various equity awardsand severance arrangements. Following the discussion, deletions no action was taken pending review of certain closing conditions the matters by the compensation committee of the TiVo board. On December 15, 2019, the Xperi board held a special meeting to review the terms of the proposed mergers. Representatives of Centerview and changes Skadden attended. Xx. Xxxx described his recent discussions with XxXx’s representatives regarding the governance of the combined company. Xx. Xxxx informed the Xperi board that XxXx had agreed to a seven member board comprised of three directors from each company and the financing cooperation covenantChief Executive Officer of the combined company. Xx. Xxxx noted that specific directors had not been identified or discussed. Xx. Xxxx further noted that XxXx had agreed that Xx. Xxxxxxxx would be the Chief Executive Officer of the combined company and Xxxxx’s senior management would lead the combined company. Xx. Xxxxxxxx then outlined the terms of a debt refinancing on which the management team had been working to replace the credit facilities of Xperi and TiVo in connection with the transaction. Xx. Xxxxxxxx noted that Xxxxx was working to obtain a commitment letter from lenders concurrently with the proposed execution of a merger agreement for the transaction. Xx. Xxxxxxxx then presented a financial analysis of the proposed all-stock transaction based on the latest financial forecasts for Xperi and TiVo, synergy estimates for the transaction and current market statistics. The presentation included, among other legal issuesthings, a pro forma view of the financial aspects of the business combination (including a preliminary contribution analysis for the combined business) and a pro forma view of the future financial prospects of the combined company (with and without synergies). The Xperi board then asked a number of questions to Xx. Xxxxxxxx and Centerview related to the presentation and the financial analysis. Representatives from Skadden then described the status of negotiations of the proposed merger agreement, including material issues that remained under discussion.

Xxxxxxxx and Xx. Xxxxx had dinner also discussed the status of negotiations of the merger agreement and continued the financing for the combined company and agreed to schedule an all-hands call with Xperi and TiVo and each of their respective advisors to discuss steps to close the transaction later that day. Later that day, representatives of TiVo, Xperi, LionTree, Centerview, Xxxxxx and Skadden held a due diligence check-in telephone conference call to discuss the governance status of due diligence between the parties and management the timeline to signing. Representatives of the combined companyXxxxxx and Skadden also had a follow-up call to discuss bring-down due diligence matters later that evening. On December 416, 2019, representatives of TiVo, Xperi, LionTree, Centerview, Xxxxxx and Skadden held a telephone conference call to discuss the status of due diligence and the status of the financing commitments. Later that morning, TiVo director Xx. Xxxxxxxx updated Xx. Xxxx on his discussion Xxxxxxx had a call with Xx. Xxxxx on the governance and management of the combined company. Xx. Xxxx instructed Xx. Xxxxxxxx to discuss this matter with each of the members of the Xperi board and to provide Xx. Xxxx with an update on their views. On December 5, 2019, Xx. Xxxxx communicated to Xx. Xxxxxxxx by telephone conference call that the TiVo board had discussed Xxxxx’s proposals Xxxxxxxx’x vision for the governance and management of the combined company and agreed with all of the proposals other than Xx. Xxxxxxxx being the Chief Executive Officer of the combined company. In the afternoon on December 16, the TiVo board held a meeting, with representatives of TiVo management, LionTree and Xxxxxx in attendance. Representatives of Xxxxxx provided an update on the current status and resolution of transaction issues previously open and under board discussion, including those related to the certainty of transaction completion. TiVo management provided an update on the negotiations and status of the merger agreement and financing commitments. Questions were asked, and a full discussion ensued, including a discussion of remaining open issues and process, as well as consideration of TiVo remaining an independent standalone company and other potential strategic alternatives that may be reasonably available to it. Representatives of LionTree then reviewed certain preliminary financial analyses undertaken by LionTree related to the proposed transactions. After the board meeting, XxXx director Xx. Xxxxx noted that Xxx Xxxxx, the Chairman of the TiVo board, would Xxxxxx had a call Xxxx Xxxx, the Chairman of the Xperi board, to discuss the officer designations. Later that day, with Xx. Xxxxxxxx updated each member of the Xperi board to understand their current thinking on proposed governance and management of discuss Xx. Xxxxxxxx’x vision for the combined company. The Xperi board reiterated their preference that Xx. Xxxxxxxx and the current senior management of Xperi run the combined company. The Xperi board believed that having a shared leadership model with Xx. Xxxxxxxx as Executive Chairman and Xx. Xxxxx as Chief Executive Officer or vice-versa was sub-optimal and would create internal confusion. Xx. Xxxxxxxx provided an update of his discussions with the Xperi board to Xx. Xxxx by email and Xx. Xxxx asked Xx. Xxxxxxxx to communicate the Xperi board’s position to Xx. Xxxxx. Later that dayevening on December 16, Xx. Xxxxxxxx called Xx. Xxxxx to reiterate that the Xperi board felt it was important that Xperi management should hold key management positions in the combined company, including the Chief Executive Officer. On December 6, 2019, Cooley delivered Skadden sent a revised draft of the merger agreement, with feedback from TiVo’s management to Skadden. The revised draft contained TiVo’s proposal agreement reflecting further discussion amongst principals on certain key legal issues, including termination fees, issues regarding closing conditions, “no-shop” provisions conditions and representations and warranties. Certain issues such as corporate governance of HoldCo, treatment of equity awards and financing related provisions were identified as requiring further due diligence and discussion among the business principalsgovernance. On December 717, 2019, Xxxxxx held further discussions with TiVo on the latest draft merger agreement and the remaining issues relating to closing conditionality. Additionally, TiVo director Xx. Xxxx discussed the management and governance of the combined company had a call with Xx. Xxxxx by telephone. Xx. Xxxxx explained that the TiVo board would prefer that existing members of TiVo management hold key management positions in the combined company Xxxxxxxx to discuss his background and that existing TiVo directors comprise a majority of experience, and vision for the combined company’s . Later that day, the Xperi board of directors. Xx. Xxxx and Xx. Xxxxx agreed that each would instruct Xx. Xxxxxxxx and Xx. Xxxxx held a special meeting to discuss and seek to agree to a compromise position on management and governance issues. On December 7, 2019, representatives of Xperi and Skadden discussed review the revised draft terms of the merger agreement provided by Cooley on December 6, including the treatment of equity awards, deletions of certain closing conditions and changes to the financing cooperation covenant, among other legal issuesproposed mergers.