EXHIBIT H
AMENDMENT TO NOTE PURCHASE AND SECURITY AGREEMENT
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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
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Title: COO
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PRESENCIA EN MEDIOS, S.A. DE C.V.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title:
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PVI HOLDING, LLC
By: /s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxx
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Title: EVP Engineering & Technology
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