TIVO SOLUTIONS INC., TIVO CORPORATION AND WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of September 7, 2016 2% Convertible Senior Notes due 2021
Exhibit 4.2
TIVO SOLUTIONS INC.,
TIVO CORPORATION
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
Dated as of September 7, 2016
2% Convertible Senior Notes due 2021
FIRST SUPPLEMENTAL INDENTURE, dated as of September 7, 2016 (this “Supplemental Indenture”), among TIVO SOLUTIONS INC., a Delaware corporation (f/k/a TiVo Inc.) (the “Company”), TIVO CORPORATION, a Delaware corporation (f/k/a Titan Technologies Corporation) (“Parent”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as trustee (the “Trustee”), to the Indenture, dated as of September 22, 2014 (the “Indenture”), between the Company and the Trustee.
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ARTICLE 1
Section 1.01. Definitions in the Supplemental Indenture. Unless otherwise specified herein or the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless the definition of such term is amended or supplemented pursuant to this Supplemental Indenture;
(b) the terms defined in this Article and in this Supplemental Indenture include the plural as well as the singular;
(c) unless otherwise stated, a reference to a Section or Article is to a Section or Article of this Supplemental Indenture; and
(d) Article and Section headings herein are for convenience only and shall not affect the construction hereof.
ARTICLE 2
EFFECT OF MERGER ON CONVERSION PRIVILEGE
Section 2.01. Agreement of Parties.
(a) From and after the TiVo Effective Time (as defined in the Merger Agreement), each Holder of a Security that was outstanding immediately prior to the TiVo Effective Time shall have the right to convert each $1,000 principal amount of such Security into the amount of cash and Parent Common Stock that a holder of shares of Company Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive, subject to the Company’s right to elect to pay cash upon such a conversion as provided in Section 10.02 of the Indenture.
(b) The provisions of the Indenture, as modified herein, including without limitation, (i) all references and provisions respecting the terms “Common Stock,” “Conversion Price,” “Conversion Rate” and “Ex-Dividend Date” and (ii) the provisions of Section 10.01(b) of the Indenture respecting when a Holder of Securities may surrender its Securities for conversion, shall continue to apply, mutatis mutandis, to the Holders’ right to convert each Security into the Reference Property. Parent hereby agrees to furnish Reference Property, if any, deliverable upon conversion of the Securities and be bound by the conversion provisions of Article 10 of the Indenture. As and to the extent required by Section 10.12 of the Indenture, the Conversion Rate (as defined in the Indenture) shall be adjusted as a result of events occurring subsequent to the date hereof with respect to the Reference Property as nearly equivalent as possible to the adjustments provided for in Article 10 of the Indenture, with respect to the Common Stock.
(c) The Company shall deliver cash in lieu of fractional securities or property that would otherwise be deliverable to holders upon conversion as part of the Reference Property with such amount of cash determined by the Board of Directors in a manner as nearly equivalent as may be practicable to that used by the Company to determine the Last Reported Sale Price of Company Common Stock.
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Section 2.02. Amendments to the Indenture. The sixth paragraph of Section 13.01 of the Indenture is hereby amended and restated in full to read as follows:
“The Company’s address is:
TiVo Solutions Inc.
0000 Xxxx Xxxxxx
San Jose, CA 95002
Attention: Chief Financial Officer and General Counsel
Facsimile: 000-000-0000
The Trustee’s address is:
Xxxxx Fargo Bank, National Association
000 X. Xxxxx Xxx, Xxxxx 0X
MAC: E2064-05A
Los Angeles, CA 90071
Attention: TiVo Administrator
Facsimile: 000-000-0000
Email: Xxxxxxxxx.X.Xxxxxx@xxxxxxxxxx.xxx”
ARTICLE 3
Section 3.01. Ratification of Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
Section 3.02. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and Parent and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of the Supplemental Indenture as fully and with like force and effect as though set forth in full herein.
Section 3.03 Addresses for Notices, Etc. Any notice or demand that by any provision of the Indenture or this Supplemental Indenture is required or permitted to be given or served by the Trustee or by the Holders on Parent shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by Parent with the Trustee) to TiVo Corporation, Two Circle Star Way, San Carlos, CA 94070, Attention: General Counsel.
Section 3.04. Governing Law. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE AND THE SECURITIES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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Section 3.05. Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 3.06. Effectiveness. This Supplemental Indenture shall not be effective until, and shall become effective upon, without further action by the parties hereto, the TiVo Effective Time.
[Signature Page Follows]
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TIVO SOLUTIONS INC. | ||
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Treasurer | |
TIVO CORPORATION | ||
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Treasurer | |
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Vice President |
SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE