EXHIBIT 10.2
AMENDMENT TO NOTE PURCHASE AND SECURITY AGREEMENT
THIS AMENDMENT TO NOTE PURCHASE AND SECURITY AGREEMENT (this
"Amendment") is dated as of March 20, 2003 and is made by and among Princeton
Video Image, Inc., a Delaware corporation (the "Seller"), Presencia en Medios,
S.A. de C.V., a Mexican corporation ("Presencia"), and PVI Holding, LLC, a
Delaware limited liability company ("PVI Holding"), as a creditor to the Seller
and as collateral agent.
RECITALS:
WHEREAS, Seller, Presencia and PVI Holding have entered in to that
certain Note Purchase and Security Agreement, dated as of February 18, 2003 (the
"Agreement"); and
WHEREAS, the parties to the Agreement wish to provide for the
possibility of three rather than two Closings (as defined in the Agreement), and
to amend the Agreement to modify the time period in which Presencia can give an
Election Notice (as defined in the Agreement);
NOW, THEREFORE, for good and adequate consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. All defined terms used herein and not otherwise defined shall
have the meaning ascribed thereto in the Agreement.
2. The opening paragraph of the Agreement is hereby amended by
deleting therefrom the phrase "(this "Agreement")".
3. The following definitions set forth in Section 1 of the
Agreement are hereby amended by deleting such definitions in their entirety and
substituting in lieu thereof the following:
"Agreement" shall mean this Note Purchase and Security
Agreement, as amended from time to time.
"Convertible Notes" shall mean (i) the promissory note in the
amount of $1,500,000 executed and delivered by the Seller to the Purchaser at
the First Closing (as hereinafter defined), (ii) the promissory note in the
amount of $500,000 executed and delivered by the Seller to the Purchaser at the
Second Closing (as hereinafter defined) and (iii) the promissory note(s), if
any, in the aggregate amount of $1,000,000 executed and delivered by the Seller
to the Purchasers at the Third Closing (as hereinafter defined), all in
substantially the form attached hereto as Annex A.
"Election Notice" shall mean a notice by Presencia to the
Seller in which Presencia agrees that it or its designees will purchase
$1,000,000 of Convertible Notes at the Third Closing.
"Purchaser" shall mean, (i) for purposes of the First Closing
and the Second Closing, Presencia, and (ii) for purposes of the Third Closing,
Presencia and/or its designee(s) as specified in the Election Notice and
approved by PVI Holding, such approval not to be
unreasonably withheld or delayed.
4. Section 2 of the Agreement is hereby amended and restated in
its entirety as follows:
"2. Sale and Purchase of Convertible Notes.
2.1 Agreement to Purchase and Sell. Upon the terms and
subject to the conditions set forth in this Agreement and upon the
representations and warranties made herein, the Seller agrees to sell to the
Purchasers, and the Purchasers agree to purchase from the Seller, the
Convertible Notes, provided, however, that the Purchasers shall have no
obligation to purchase, and shall not otherwise be in breach or violation of
this Agreement as a result of their decision not to deliver an Election Notice,
and the Seller shall have no obligation to sell, Convertible Notes at the Third
Closing (as hereinafter defined) unless Presencia gives an Election Notice to
the Seller on or before March 31, 2003.
2.2 Purchase Price. The aggregate purchase price to be
delivered at the First Closing is $1,500,000 (the "First Closing Purchase
Price"), the aggregate purchase price to be delivered at the Second Closing is
$500,000 (the "Second Closing Purchase Price") and the aggregate purchase price
to be delivered at the Third Closing (as such terms are defined below) is
$1,000,000 (the "Third Closing Purchase Price").
2.3 Closings. The closing of the purchase and sale of a
Convertible Note in the principal amount equal to the First Closing Purchase
Price is occurring simultaneously with the execution of this Agreement (the
"First Closing") at the offices of Smith, Stratton, Wise, Xxxxx & Xxxxxxx, LLP,
000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx on the date hereof. The closing of
the purchase and sale of a Convertible Note in the principal amount equal to the
Second Closing Purchase Price (the "Second Closing") will occur at the offices
of Smith, Stratton, Wise, Xxxxx & Xxxxxxx, LLP, 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx on March 20, 2003 (the "Second Closing Date"). The closing
of the purchase and sale of one or more additional Convertible Notes in the
aggregate principal amount equal to the Third Closing Purchase Price (the "Third
Closing") shall occur within five (5) days after Presencia gives the Election
Notice (the "Third Closing Date") to the Seller and shall be held at the offices
of Smith, Stratton, Wise, Xxxxx & Xxxxxxx, LLP, 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx.
2.4 Closing Actions. Subject to the terms of this
Agreement,
(a) at the First Closing,
(i) the Purchaser is delivering the
First Closing Purchase Price in the amount of $1,500,000 to the Seller by wire
transfer to such account previously specified by the Seller;
(ii) the Seller is delivering a
Convertible Note in the face amount of the First Closing Purchase Price to the
Purchaser;
(iii) the Seller is delivering to each of
Presencia and PVI Holding a check in the amount of $25,000 payable to it in
immediately available funds for the reimbursement of fees and expenses described
in Section 19 hereof.
(iv) the Purchaser and PVI Holding are
delivering to each other an intercreditor agreement (the "Intercreditor
Agreement");
(v) the Seller and Cablevision are
delivering to each other an amendment to the Option Agreement by and between the
Seller and Cablevision dated as of June 25, 2002 (the "Option Agreement");
(vi) the Seller and Cablevision are
delivering to each other an amendment to the Proprietary Information Escrow
Agreement by and among the Seller, Cablevision and Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, dated as of June 25, 2002 (the "Escrow Agreement");
(vii) the Seller and each of Xxxxx Xxxx
and Xxxxxxx Xxxxxxxx are delivering to each other employment and stock option
agreements;
(viii) the Seller is delivering to PVI
Holding an amended and restated convertible promissory note against delivery by
PVI Holding of the Convertible Promissory Note dated as of June 25, 2002
previously issued to PVI Holding by the Seller (the "Amended and Restated PVI
Holding Note");
(ix) PVI Holding is delivering to the
Seller its waiver and consent with respect to the transactions contemplated
hereunder to the extent required under the Stock Purchase Agreement or the PVI
Holding Note Purchase Agreement, including without limitation its waiver of its
rights pursuant to Section 6.2 of the Stock Purchase Agreement as such rights
relate to the issuance of shares of common stock upon exercise of the warrant
described in Section 2.4(c)(x) that may be delivered in connection with the
Third Closing;
(x) the Seller is delivering to the
Purchaser an opinion of the Seller's counsel in a form as agreed to by the
parties;
(xi) the Seller is delivering to the
Purchaser a certificate, executed on behalf of the Seller by its Secretary,
dated as of the Closing Date, certifying the resolutions of the Seller's Board
approving the transactions contemplated by this Agreement and the other
Transaction Documents;
(xii) the Seller and the parties to the
Reorganization Agreement are delivering to each other an amendment thereto and
their consent to the transactions contemplated hereby;
(xiii) Cablevision is delivering to the
Seller its waiver and consent with respect to the transactions contemplated
hereunder to the extent required under the Option Agreement; and
(xiv) following its receipt of the First
Closing Purchase Price, the Seller is delivering to Presencia $150,000 to be
applied to the principal amounts outstanding as of the date of such closing with
respect to the Contingent Service Fee (as such term is defined in the Consultant
Services Agreement) for 2001.
(b) at the Second Closing:
(i) Purchaser will deliver an amount
equal to the Second Closing Purchase Price by wire transfer to such account
previously specified by the Seller:
(ii) the Seller will deliver a
Convertible Note in the aggregate principal amount of the Second Closing
Purchase Price to the Purchaser;
(iii) the Seller will deliver to the
Purchaser a certificate, executed on behalf of the Seller by its Secretary,
dated as of the Second Closing Date, certifying the resolutions of the Seller's
Board and any duly authorized committee thereof, approving the transactions
contemplated by this Agreement and the other Transaction Documents; and
(iv) the Seller will deliver to the
Purchaser an opinion of the Seller's counsel in substantially the form delivered
at the First Closing.
(c) at the Third Closing, subject to Presencia's
delivery of the Election Notice, which shall be in Presencia's sole discretion,
and PVI Holding's approval of Presencia's designee(s) (if any) designated
therein, which approval will not be unreasonably withheld or delayed:
(i) to the extent it is not already a
party to this Agreement and the Intercreditor Agreement, each Purchaser will
deliver a joinder agreement in the form attached hereto as Annex B;
(ii) each Purchaser will deliver an
amount equal to the face amount of the Convertible Note to be issued to it to
the Seller by wire transfer to such account previously specified by the Seller,
it being agreed that the Purchasers will deliver an aggregate amount equal to
the Third Closing Purchase Price at the Third Closing;
(iii) the Seller will deliver Convertible
Notes in the aggregate principal amount of the Third Closing Purchase Price to
the Purchasers;
(iv) the Seller will deliver to
Presencia amended Presencia Warrant Certificates (the "Amended Presencia Warrant
Certificates") against delivery of the Presencia Warrant Certificates;
(v) the Seller will deliver to PVI
Holding warrants to purchase 2,658 and 106,329 shares of the Seller's common
stock substantially in the form of the Special Warrants, as amended;
(vi) following its receipt of the Third
Closing Purchase Price, the Seller will deliver to Presencia an amount equal to
the excess of $300,645 plus accrued interest, if any, over $150,000, on account
of amounts accrued as of the date of such closing with respect to the Contingent
Service Fee (as such term is defined in the Consultant Services Agreement) for
2001;
(vii) the Seller and PVI Holding will
deliver to each other an amendment to the Stock Purchase Agreement in the form
attached hereto as Exhibit 2.4(b)(vii);
(viii) the Seller will deliver to the
Purchasers an opinion of the Seller's counsel in substantially the form
delivered at the First Closing;
(ix) if neither Xxxxx Xxxx nor Xxxxxxx
Xxxxxxxx is then serving as a co-CEO of the Seller (or as the sole CEO if one of
them shall cease to so serve), the Seller shall have delivered to the Purchasers
and PVI Holding a certificate executed by one of its officers stating that the
representations and warranties made by the Seller in Section 4 hereof are true
and correct as of the Third Closing Date with the same force and effect as if
they had been made on and as of said date;
(x) if Presencia requests, the Seller
will deliver to one or more of the Purchasers who are Presencia's designees
(including, without limitation, directors, officers and direct or indirect
shareholders of Presencia, other than Xxxxxxx Xxxx, Xxxxx Xxxx or Xxxxxxx
Xxxxxxxx) warrants to purchase up to an aggregate of 100,000 shares of the
Seller's common stock at an exercise price of $1.50 per share and with a term of
four (4) years, substantially in the form of the Amended Presencia Warrant
Certificates; and
(xi) the Seller is delivering to the
Purchaser a certificate, executed on behalf of the Seller by its Secretary,
dated as of the Third Closing Date, certifying the resolutions of the Seller's
Board approving the transactions contemplated by this Agreement and the other
Transaction Documents."
5. All references to the "First Closing" and the "Second Closing"
in the waiver and consents delivered by each of PVI Holding, LLC and Presencia
en Medios, S.A. de C.V. at the First Closing shall be deemed to mean the "First
and Second Closings" and the "Third Closing", respectively.
6. Except as amended hereby, the Agreement shall remain in full
force and effect.
7. This Amendment may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed to be an original instrument,
but all such counterparts together shall constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Note Purchase and Security Agreement to be duly executed on their behalf.
PRINCETON VIDEO IMAGE, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: COO
PRESENCIA EN MEDIOS, S.A. DE C.V.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title:_________________________________________
PVI HOLDING, LLC
By: /s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxx
Title: EVP, Engineering & Technology
