Exhibit 2
TIVO INC.
SERIES G PREFERRED STOCK
PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. Agreement To Sell And Purchase.................................1
1.1 Authorization of Shares........................................1
1.2 Sale and Purchase..............................................1
SECTION 2. CLOSING, DELIVERY AND PAYMENT..................................1
2.1 Closing........................................................1
2.2 Delivery.......................................................2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................2
3.1 Organization, Good Standing and Qualification..................2
3.2 Capitalization; Voting Rights..................................2
3.3 Authorization; Binding Obligations.............................3
3.4 Patents and Trademarks.........................................3
3.5 Compliance with Other Instruments..............................4
3.6 Litigation.....................................................4
3.7 Proprietary Information and Inventions Agreements..............5
3.8 Compliance with Laws; Permits..................................5
3.9 Offering Valid.................................................5
3.10 Full Disclosure................................................5
3.11 Related-Party Transactions.....................................6
3.12 Employee Compensation Plans....................................6
3.13 Employee Relations.............................................6
3.14 Obligations of Management......................................6
3.15 Corporate Documents............................................6
3.16 Tax Returns, Payments and Elections............................6
3.17 Agreements; Action.............................................7
3.18 Absence of Certain Changes.....................................7
3.19 Registration Rights............................................8
3.20 Title to Property and Assets...................................8
3.21 Insurance......................................................9
3.22 Year 2000 Compliance...........................................9
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER....................9
4.1 Requisite Power and Authority..................................9
4.2 Investment Representations.....................................9
4.3 Transfer Restrictions.........................................10
SECTION 5. Conditions To Closing.........................................10
5.1 Conditions to Purchaser's Obligations at the Closing..........10
5.2 Conditions to Obligations of the Company......................11
SECTION 6. Miscellaneous.................................................12
6.1 Governing Law.................................................12
6.2 Survival......................................................12
6.3 Successors and Assigns........................................12
6.4 Entire Agreement..............................................12
6.5 Severability..................................................12
6.6 Amendment and Waiver..........................................12
6.7 Delays or Omissions...........................................12
6.8 Notices.......................................................13
6.9 Expenses......................................................13
6.10 Titles and Subtitles..........................................13
6.11 Counterparts..................................................13
6.12 Broker's Fees.................................................13
6.13 Pronouns......................................................13
6.14 California Corporate Securities Law...........................13
TIVO INC.
SERIES G PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES G PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement")
is entered into as of April 16, 1999, by and among TiVo Inc., a Delaware
corporation (the "Company") and NBC Multimedia, Inc. ("Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of One Million Thirteen Thousand Five Hundred Thirteen
(1,013,513) shares of its Series G Preferred Stock (the "Shares");
WHEREAS, Purchaser desires to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to
Purchaser on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
SECTION 1 Agreement To Sell And Purchase.
1.1 Authorization of Shares. On or prior to the date hereof, the
Company shall have authorized (i) the sale and issuance to Purchaser of the
Shares and (ii) the issuance of such shares of Common Stock to be issued
upon conversion of the Shares (the "Conversion Shares"). The Shares and the
Conversion Shares shall have the rights, preferences, privileges and
restrictions set forth in the Restated Certificate of Incorporation of the
Company, as amended, in the form attached hereto as Exhibit B (the
"Restated Certificate").
1.2 Sale and Purchase. Subject to the terms and conditions hereof,
at the Closing (as hereinafter defined) the Company hereby agrees to issue
and sell to Purchaser, and Purchaser agrees to purchase from the Company,
the number of Shares set forth opposite Purchaser's name on Exhibit A, at a
purchase price of Seven Dollars and Forty Cents ($7.40) per share.
SECTION 2 CLOSING, DELIVERY AND PAYMENT.
2.1 Closing. The closing of the sale and purchase of the Shares
under this Agreement (the "Closing") shall take place at 10:00 a.m. on the
date hereof, at the offices of Xxxxxx Godward LLP, 5 Palo Alto Square, 0000
Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 or at such other time or place
as the Company and Purchaser may mutually agree (such date is hereinafter
referred to as the "Closing Date").
2.2 Delivery. At the Closing, subject to the terms and conditions
hereof, the Company will deliver to Purchaser certificates representing the
number of Shares to be purchased at the Closing by Purchaser, against
payment of the purchase price therefor by check, wire transfer made payable
to the order of the Company, cancellation of indebtedness or any
combination of the foregoing.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on a Schedule of Exceptions delivered by the
Company to Purchaser at the Closing, the Company hereby represents and
warrants to Purchaser as of the date of this Agreement as follows:
3.1 Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. The Company has all requisite corporate
power and authority to own and operate its properties and assets, to
execute and deliver this Agreement and the Investor Rights Agreement
(collectively, the "Related Agreements"), to issue and sell the Shares and
the Conversion Shares and to carry out the provisions of this Agreement,
the Related Agreements and the Restated Certificate and to carry on its
business as presently conducted and as presently proposed to be conducted.
The Company is duly qualified and is authorized to do business and is in
good standing as a foreign corporation in all jurisdictions in which the
nature of its activities and of its properties (both owned and leased)
makes such qualification necessary, except for those jurisdictions in which
failure to do so would not have a material adverse effect on the Company or
its business. The Company owns no equity securities of any other
corporation, limited partnership or similar entity.
3.2 Capitalization; Voting Rights. The authorized capital stock of
the Company, immediately prior to the Closing, will consist of Forty
Million (40,000,000) shares of Common Stock (par value $.001 per share),
Eight Million Four Hundred Twenty-Six Thousand Forty-Two (8,426,042) shares
of which are issued and outstanding, and Eighteen Million (18,000,000)
shares of Preferred Stock (par value $.001 per share), Five Million Two
Hundred Thousand (5,200,000) of which are designated Series A Preferred
Stock, Five Million (5,000,000) of which are issued and outstanding, Four
Million Four Hundred Thousand (4,400,000) of which are designated Series B
Preferred Stock, Three Million Six Hundred Sixty Thousand Nine Hundred
Fourteen (3,660,914) of which are issued and outstanding, Four Million
(4,000,000) of which are designated Series C Preferred Stock, Two Million
Five Hundred Thirteen Thousand Five Hundred Thirteen (2,513,513) of which
are issued and outstanding, Two Million Five Hundred Thousand (2,500,000)
of which are designated Series D Preferred Stock, One Million Three Hundred
Fifty-Eight Thousand Six Hundred Ninety-Five (1,358,695) of which are
issued and outstanding, Three Hundred Thousand (300,000) of which are
designated Series E Preferred Stock, Two Hundred Seventy Thousand Two
Hundred Seventy (270,270) of which are issued and outstanding, Five Hundred
Thousand (500,000) of which are designated Series F Preferred Stock, Four
Hundred Five Thousand Four Hundred Five (405,405) of which are issued and
outstanding, and One Million One Hundred Thousand (1,100,000) of which are
designated Series G Preferred Stock, none of which are outstanding. All
issued and outstanding shares of the Company's Common Stock (a) have been
duly authorized and validly issued, (b) are fully paid and nonassessable,
and (c) were issued in compliance with all applicable state and federal
laws concerning the issuance of securities. The rights, preferences,
privileges and restrictions of the Shares are as stated in the Restated
Certificate. Each series of Preferred Stock is initially convertible into
Common Stock on a one-for-one basis. The Conversion Shares have been duly
and validly reserved for issuance. Except as may be granted pursuant to the
Related Agreements, stock awards and options to purchase shares of the
Company's Common Stock granted pursuant to the Company's 1997 Equity
Incentive Plan and 1999 Equity Incentive Plan, and outstanding warrants to
purchase 81,522 shares of the Company's Common Stock, 52,083 shares of the
Company's Series A Preferred Stock, 60,813 shares of the Company's Series B
Preferred Stock, 324,325 shares of the Company's Series C Preferred Stock
and 543,478 shares of the Company's Series D Preferred Stock, there are no
outstanding options, warrants, rights (including conversion or preemptive
rights and rights of first refusal), proxy or shareholder agreements, or
agreements of any kind for the purchase or acquisition from the Company of
any of its securities. The Company has reserved 6,500,000 shares of Common
Stock for issuance to employees, officers or directors of, or consultants
or advisors to the Company pursuant to the Company's 1997 Equity Incentive
Plan and 1999 Equity Incentive Plan, of which 2,067,288 remain available
for future grant. When issued in compliance with the provisions of this
Agreement and the Restated Certificate, the Shares and the Conversion
Shares will be validly issued, fully paid and nonassessable, and will be
free of any liens or encumbrances; provided, however, that the Shares and
the Conversion Shares may be subject to restrictions on transfer under
state and/or federal securities laws as set forth herein or as otherwise
required by such laws at the time a transfer is proposed. Except as
contained in the Related Agreements and the Restated Charter, or as set
forth in the Schedule of Exceptions, the Company is not aware of any
written agreement or other understandings relating to the voting of its
securities.
3.3 Authorization; Binding Obligations. All corporate action on
the part of the Company, its officers, directors and shareholders necessary
for the authorization of this Agreement and the Related Agreements, the
performance of all obligations of the Company hereunder and thereunder at
the Closing and the authorization, sale, issuance and delivery of the
Shares pursuant hereto and the Conversion Shares pursuant to the Restated
Certificate has been taken or will be taken prior to the Closing. The
Agreement and the Related Agreements, when executed and delivered, will be
valid and binding obligations of the Company enforceable in accordance with
their terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights; (b) general principles of equity that
restrict the availability of equitable remedies; and (c) to the extent that
the enforceability of the indemnification provisions in Section 2.9 of the
Investor Rights Agreement may be limited by applicable laws. The sale of
the Shares and the subsequent conversion of the Shares into Conversion
Shares are not and will not be subject to any preemptive rights or rights
of first refusal, except as set forth in the Company's Bylaws and those
rights which have been waived prior to the Closing.
3.4 Patents and Trademarks. Schedule 3.4 includes a list of all
patents, patent applications, registered copyrights and trademarks of the
Company existing as of the date hereof. The Company owns or possesses
sufficient legal rights to all patents, trademarks, service marks, trade
names, copyrights, trade secrets, information and other proprietary rights
and processes necessary for its business as now conducted and as proposed
to be conducted, and such conduct of its business does not, to the
Company's knowledge, infringe upon the rights of others. There are no
outstanding options, licenses or agreements with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and other proprietary rights and processes of any
third party which are necessary to the operation of the Company's products,
other than such licenses or agreements arising from the purchase of "off
the shelf" or standard products. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, copyrights or trade secrets or other proprietary rights
of any other person or entity. The Company is not aware that any of its
employees is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere
with their duties to the Company or that would conflict with the Company's
business as proposed to be conducted. Neither the execution nor delivery of
this Agreement, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as
proposed, will, to the Company's knowledge, conflict with or result in a
breach of the terms, conditions or provisions of, or constitute a default
under, any contract, covenant or instrument under which any employee is now
obligated. The Company does not believe it is or will be necessary to
utilize any inventions, trade secrets or proprietary information of any of
its employees made prior to their employment by the Company, except for
inventions, trade secrets or proprietary information that have been
assigned to the Company.
3.5 Compliance with Other Instruments. The Company is not in
violation or default of any term of its Restated Certificate or Bylaws, or
of any provision of any mortgage, indenture, contract, agreement,
instrument or contract to which it is party or by which it is bound or of
any judgment, decree, order, writ or any statute, rule or regulation
applicable to the Company which would materially and adversely affect the
business, assets, liabilities, financial condition, operations or prospects
of the Company. The execution, delivery, and performance of and compliance
with this Agreement, and the Related Agreements, and the issuance and sale
of the Shares pursuant hereto and of the Conversion Shares pursuant to the
Restated Certificate, will not, with or without the passage of time or
giving of notice, result in any such material violation, or be in conflict
with or constitute a default under any such term, or result in the creation
of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Company or the suspension, revocation,
impairment, forfeiture or nonrenewal of any permit license, authorization
or approval applicable to the Company, its business or operations or any of
its assets or properties.
3.6 Litigation. There is no action, suit, proceeding or
investigation pending or to the Company's knowledge currently threatened
against the Company that questions the validity of this Agreement, or the
Related Agreement or the right of the Company to enter into any of such
agreements, or to consummate the transactions contemplated hereby or
thereby, or which might result, either individually or in the aggregate, in
any material adverse change in the assets, condition, affairs or prospects
of the Company, financially or otherwise, or any change in the current
equity ownership of the Company, nor is the Company aware that there is any
basis for the foregoing. The foregoing includes, without limitation,
actions pending or threatened (or any basis therefor known to the Company)
involving the prior employment of any of the Company's employees, their use
in connection with the Company's business of any information or techniques
allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers. The Company is not a
party or subject to the provisions of any order, writ, injunction, judgment
or decree of any court or government agency or instrumentality. There is no
action, suit, proceeding or investigation by the Company currently pending
or which the Company intends to initiate.
3.7 Proprietary Information and Inventions Agreements. Each former
and current employee and officer of the Company has executed a Proprietary
Information and Inventions Agreement in the form of Exhibit D attached
hereto.
3.8 Compliance with Laws; Permits. The Company is not in violation
of any applicable statute, rule, regulation, order or restriction of any
domestic or foreign government or any instrumentality or agency thereof in
respect of the conduct of its business or the ownership of its properties
which violation would materially and adversely affect the business, assets,
liabilities, financial condition, operations or prospects of the Company.
No governmental orders, permissions, consents, approvals or authorizations
are required to be obtained and no registrations or declarations are
required to be filed in connection with the execution and delivery of this
Agreement and the issuance of the Shares or the Conversion Shares, except
such as has been duly and validly obtained or filed, or with respect to any
filings that must be made after the Closing, as will be filed in a timely
manner. The Company has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business as now being conducted
by it, the lack of which could materially and adversely affect the
business, properties, prospects or financial condition of the Company and
believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted. The
Company is not in material default under any such franchises, permits and
licenses.
3.9 Offering Valid. Assuming the accuracy of the representations
and warranties of Purchaser contained in Section 4.2 hereof, the offer,
sale and issuance of the Shares and the Conversion Shares will be exempt
from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act") and will have been registered or qualified
(or are exempt from registration and qualification) under the registration,
permit or qualification requirements of all applicable state securities
laws. Neither the Company nor any agent on its behalf has solicited or will
solicit any offers to sell or has offered to sell or will offer to sell all
or any part of the Shares to any person or persons so as to bring the sale
of such Shares by the Company within the registration provisions of the
Securities Act or any state securities laws.
3.10 Full Disclosure. The Company has fully provided Purchaser
with all the information which Purchaser has requested for deciding whether
to purchase the Shares and all information which the Company believes is
reasonably necessary to enable Purchaser to make such decision, including
audited financial statements for the period ending December 31, 1998 and
unaudited financial statements for interim and monthly periods ending in
and as of dates in 1999 (collectively, the "Financial Statements"). The
Financial Statements are accurate in all material respects and present
fairly the financial position of the Company as of the respective dates
thereof and for the periods covered thereby. The Financial Statements have
been prepared in accordance with the GAAP, applied on a consistent basis
throughout the periods covered (except that unaudited financial statements
do not contain footnotes and are subject to normal adjustments which will
not in aggregate be material in magnitude). This Agreement, the Exhibits
hereto, the Related Agreements, certificates and other documents made or
delivered in connection herewith, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements contained therein or herein in view of the circumstances under
which they were made not misleading; provided however, that with respect to
financial projections, the Company represents only that such projections
were prepared in good faith and the Company reasonably believes there is a
reasonable basis for such projections.
3.11 Related-Party Transactions. No employee, officer or director
of the Company or member of his or her immediate family is indebted to the
Company, nor is the Company indebted (or committed to make loans or extend
or guarantee credit) to any of them. The Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation. No
director, officer or member of his or her immediate family is directly or
indirectly interested in any material contract with the Company.
3.12 Employee Compensation Plans. The Company is not a party to
nor bound by any currently effective employment contracts, deferred
compensation agreements, bonus plans, incentive plans, profit sharing
plans, retirement agreements or other employee compensation agreements.
Subject to applicable law, the employment offer of each officer and
employee of the Company is terminable at the will of the Company.
3.13 Employee Relations. The Company believes its relations with
its employees are satisfactory. The Company's employees are not represented
by any labor unions nor, to the Company's knowledge, is any union
organization campaign in progress. To the best of its knowledge, the
Company is not aware that any of its officers or employees intends to
terminate employment, and the Company does not have a present intention to
terminate the employment of any of its officers or employees. To the best
of its knowledge, the Company has complied in all material respects with
all applicable state and federal employment laws.
3.14 Obligations of Management. Each officer of the Company is
currently devoting one hundred percent (100%) of his business time to the
conduct of the business of the Company. The Company is not aware of any
officer or key employee of the Company planning to work less than full time
at the Company in the future.
3.15 Corporate Documents. The Company's Restated Certificate and
Bylaws are in the form previously provided to Purchaser.
3.16 Tax Returns, Payments and Elections. The Company has timely
filed all federal, state and local tax returns required to be filed by it
through the date hereof, which returns are true and correct in all material
respects, and has paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company as of the date hereof. The Company
has not made any elections pursuant to the Internal Revenue Code of 1986,
as amended (the "Code"), other than elections that relate solely to methods
of accounting, depreciation or amortization, that would have a material
adverse effect on the Company, its financial condition, its business as
presently conducted or proposed to be conducted or any of its properties or
material assets. None of the Company's federal income tax returns and none
of its state income or franchise tax or sales or use tax returns has ever
been audited by governmental authorities. The Company has no knowledge or
any liability of any tax to be imposed upon its properties or assets of the
date of this Agreement that is not adequately provided for.
3.17 Agreements; Action.
(a) Except for agreements contemplated hereby and agreements
between the Company and its employees with respect to the sale of the
Company's Common Stock, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors,
affiliates or any affiliate thereof.
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to
which the Company is a party or to its knowledge by which it is bound which
may involve (i) obligations (contingent or otherwise) of, or payments to,
the Company in excess of $25,000 (other than obligations of, or payments
to, the Company arising from purchase or sale agreements entered into in
the ordinary course of business), or (ii) the license of any patent,
copyright, trade secret or other proprietary right to or from the Company
(other than licenses arising in the ordinary course of business which are
in full force and effect as of the date of this Agreement), or (iii)
agreements regarding the development, manufacture or distribution of the
Company's products or services, or (iv) indemnification by the Company with
respect to infringements of proprietary rights (other than indemnification
obligations arising from purchase or sale agreements entered into in the
ordinary course of business), or (v) otherwise material to the Company and
to business as now conducted.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or
series of its capital stock, (ii) incurred any indebtedness for money
borrowed or any other liabilities (other than trade payables in the
ordinary course of business), (iii) made any loans or advances to any
person, other than ordinary advances for travel expenses, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights, other than
the sale of its inventory in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments,
contracts and proposed transactions involving the same person or entity
(including persons or entities the Company has reason to believe are
affiliated therewith) shall be aggregated for the purpose of meeting the
individual minimum dollar amounts of such subsections.
(e) The Company has not engaged in the past three (3) months in
any discussion (i) with any representative of any corporation or
corporations regarding the consolidation or merger of the Company with or
into any such corporation or corporations, (ii) with any corporation,
partnership, association or other business entity or any individual
regarding the sale, conveyance or disposition of all or substantially all
of the assets of the Company, or a transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of
the Company is disposed of, or (iii) regarding any other form of
acquisition, liquidation, dissolution or winding up of the Company.
3.18 Absence of Certain Changes. Since December 31, 1998, there
has not been any event or condition of any character which has materially
adversely affected the Company's business operations, assets, condition
(financial or otherwise), liabilities or earnings including but not limited
to:
(a) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any
direct or indirect redemption, purchase or other acquisition of any of such
stock by the Company;
(b) any waiver by the Company of a valuable right or of a material
debt owed to it;
(c) any material change or amendment to a contract or arrangement
by which the Company or any of its assets or properties is bound or
subject;
(d) any damage, destruction or loss to any asset of the Company
(whether or not covered by insurance) that, individually or in the
aggregate, would have a material adverse effect on the business,
properties, prospects or financial condition of the Company;
(e) any commitment, transaction or other action by the Company
other than in the ordinary course of business and consistent with past
practice;
(f) any sale or other disposition (including, without limitation,
any pledge, mortgage, or transfer or discharge of a security interest or
lien) of any material right, title or interest in or to any assets or
properties of the Company or any revenues derived therefrom;
(g) any creation, incurrence, assumption or guarantee by the
Company of any indebtedness for money exceeding $50,000 (other than as set
forth in Section 3.17 hereof);
(h) any material adverse change in the financial condition,
business or operations of the Company not reflected in the Financial
Statements;
(i) any material change in any compensation arrangement or
agreement with any employee of the Company;
(j) any authorization, approval, agreement or commitment to do any
of the foregoing.
3.19 Registration Rights. Except as contemplated in the Related
Agreements, the Company has not granted or agreed to grant any registration
rights, including piggyback rights, to any person or entity.
3.20 Title to Property and Assets. The Company owns its property
and assets free and clear of all mortgages, liens, loans and encumbrances,
except such encumbrances and liens that arise in the ordinary course of
business and do not materially impair the Company's ownership or use of
such property or assets. With respect to the property or assets that it
leases, the Company is in compliance with such leases, and to the best of
its knowledge, holds a valid leasehold interest free of any liens, claims
or encumbrances.
3.21 Insurance. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed.
3.22 Year 2000 Compliance. The Company represents and warrants
that its products and the TiVo Service (excluding third party data and
other inputs) are able to accurately process date data, including, but not
limited to, calculating and sequencing from, into and between the twentieth
century (through year 1999), the year 2000 and the twenty-first century,
including leap year calculations.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to the Company as follows
(such representations and warranties do not lessen or obviate the
representations and warranties of the Company set forth in this Agreement):
4.1 Requisite Power and Authority. Purchaser has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and the Related Agreements and to carry out their
provisions. All action on Purchaser's part required for the lawful
execution and delivery of this Agreement and the Related Agreements have
been or will be effectively taken prior to the Closing. Upon their
execution and delivery, this Agreement and the Related Agreements will be
valid and binding obligations of Purchaser, enforceable in accordance with
their terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights, (b) general principles of equity that
restrict the availability of equitable remedies, and (c) to the extent that
the enforceability of the indemnification provisions of Section 2.9 of the
Investor Rights Agreement may be limited by applicable laws.
4.2 Investment Representations. Purchaser understands that neither
the Shares nor the Conversion Shares have been registered under the
Securities Act. Purchaser also understands that the Shares are being
offered and sold pursuant to an exemption from registration contained in
the Securities Act based in part upon Purchaser's representations contained
in the Agreement. Purchaser hereby represents and warrants as follows:
(a) Purchaser Bears Economic Risk. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has
the capacity to protect its own interests. Purchaser may bear the economic
risk of this investment indefinitely unless the Shares (or the Conversion
Shares) are registered pursuant to the Securities Act, or an exemption from
registration is available. Purchaser understands that the Company has no
present intention of registering the Shares, the Conversion Shares or any
shares of its Common Stock. Purchaser also understands that there is no
assurance that any exemption from registration under the Securities Act
will be available and that, even if available, such exemption may not allow
Purchaser to transfer all or any portion of the Shares or the Conversion
Shares under the circumstances, in the amounts or at the times Purchaser
might propose.
(b) Acquisition for Own Account. Purchaser is acquiring the Shares
and the Conversion Shares for Purchaser's own account for investment only,
and not with a view towards their distribution.
(c) Purchaser Can Protect Its Interest. By reason of its, or of
its management's, business or financial experience, Purchaser has the
capacity to protect its own interests in connection with the transactions
contemplated in this Agreement, and the Related Agreements. Further,
Purchaser is aware of no publication of any advertisement in connection
with the transactions contemplated in the Agreement.
(d) Accredited Investor. Purchaser is an accredited investor
within the meaning of Regulation D under the Securities Act.
(e) Company Information. Purchaser has had an opportunity to
discuss the Company's business, management and financial affairs with
directors, officers and management of the Company. Purchaser has also had
the opportunity to ask questions of and receive answers from, the Company
and its management regarding the terms and conditions of this investment.
(f) Rule 144. Purchaser acknowledges and agrees that the Shares,
and, if issued, the Conversion Shares may be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from
such registration is available. Purchaser has been advised or is aware of
the provisions of Rule 144 promulgated under the Securities Act, as in
effect from time to time, which permits limited resale of shares purchased
in a private placement subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current public
information about the Company, the resale occurring following the required
holding period under Rule 144 and the number of shares being sold during
any three-month period not exceeding specified limitations.
(g) Residence. If the Purchaser is an individual, then the
Purchaser resides in the state identified in the address of the Purchaser
set forth on Exhibit A; if the Purchaser is a partnership, corporation, or
other entity, the office or offices of the Purchaser in which its
investment decision was made is located at the address or addresses of the
Purchaser set forth on Exhibit A.
4.3 Transfer Restrictions. Purchaser acknowledges and agrees that
the Shares and, if issued, the Conversion Shares are subject to
restrictions on transfer as set forth in the Investor Rights Agreement.
SECTION 5. Conditions To Closing.
5.1 Conditions to Purchaser's Obligations at the Closing.
Purchaser's obligations to purchase the Shares at the Closing are subject
to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the Company in
Section 3 hereof shall be true and correct in all material respects as of
the Closing Date with the same force and effect as if they had been made as
of the Closing Date, and the Company shall have performed all obligations
and conditions herein required to be performed or observed by it on or
prior to the Closing.
(b) Legal Investment. On the Closing Date, the sale and issuance
of the Shares and the proposed issuance of the Conversion Shares shall be
legally permitted by all laws and regulations to which Purchaser and the
Company are subject.
(c) Filing of Restated Certificate. The Restated Certificate shall
have been filed with the Secretary of State of the State of Delaware.
(d) Corporate Documents. The Company shall have delivered to
Purchaser or their counsel, copies of all corporate documents of the
Company as Purchaser shall reasonably request.
(e) Compliance Certificate. The Company shall have delivered to
Purchaser a Compliance Certificate, executed by the President of the
Company, dated the date of the Closing, to the effect that the conditions
specified in subsections (a) and (c) of this Section 5.1 have been
satisfied.
(f) Investor Rights Agreement. A Sixth Amended and Restated
Investor Rights Agreement substantially in the form attached hereto as
Exhibit C shall have been executed and delivered by the parties thereto.
(g) Legal Opinion. Purchaser shall have received from legal
counsel to the Company an opinion addressed to it, dated as of the Closing
Date, in substantially the form attached hereto as Exhibit E.
(h) Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the Closing hereby and
all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to Purchaser and its special
counsel, and Purchaser and its special counsel shall have received all such
counterpart originals or certified or other copies of such documents as
they may reasonably request.
5.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Shares at each Closing is subject to the
satisfaction, on or prior to the Closing, of the following conditions:
(a) Representations and Warranties True. The representations and
warranties made by Purchaser in Section 4 hereof shall be true and correct
in all material respects at the date of the Closing, with the same force
and effect as if they had been made on and as of said date.
(b) Performance of Obligations. Purchaser shall have performed and
complied with all agreements and conditions herein required to be performed
or complied with by Purchaser on or before the Closing.
(c) Filing of Restated Certificate. The Restated Certificate shall
have been accepted for filing with the Secretary of State of the State of
Delaware.
(d) Investor Rights Agreement. A Sixth Amended and Restated
Investor Rights Agreement substantially in the form attached hereto as
Exhibit C shall have been executed and delivered by Purchaser.
SECTION 6. Miscellaneous.
6.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and performed entirely
in California.
6.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by Purchaser
and the closing of the transactions contemplated hereby. All statements as
to factual matters contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant hereto in connection with
the transactions contemplated hereby shall be deemed to be representations
and warranties by the Company hereunder solely as of the date of such
certificate or instrument.
6.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
6.4 Entire Agreement. This Agreement, the Exhibits and Schedules
hereto, the Related Agreements and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof and no party shall be liable
or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and
therein.
6.5 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
6.6 Amendment and Waiver.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and Purchaser.
(b) The obligations of the Company and the rights of the holders
of the Shares and the Conversion Shares under the Agreement may be waived
only with the written consent of Purchaser.
6.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Related
Agreements or the Restated Certificate, shall impair any such right, power
or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on Purchaser's part of any breach, default or noncompliance under
this Agreement, the Related Agreements or under the Restated Certificate or
any waiver on such party's part of any provisions or conditions of the
Agreement, the Related Agreements, or the Restated Certificate must be in
writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, the Related
Agreements, the Restated Certificate, by law, or otherwise afforded to any
party, shall be cumulative and not alternative.
6.8 Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified; (b) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient, if not,
then on the next business day; (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or
(d) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the Company at the address as
set forth on the signature page hereof and to Purchaser at the address set
forth on Exhibit A attached hereto or at such other address as the Company
or Purchaser may designate by ten (10) days advance written notice to the
other parties hereto.
6.9 Expenses. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance
of the Agreement. The Company shall, at the Closing, reimburse the
reasonable fees of one special counsel for Purchaser, not to exceed $5,000,
and shall reimburse such special counsel for reasonable expenses incurred
in connection with the negotiation, execution, delivery and performance of
this Agreement.
6.10 Titles and Subtitles. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
6.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.12 Broker's Fees. Each party hereto represents and warrants that
no agent, broker, investment banker, person or firm acting on behalf of or
under the authority of such party hereto is or will be entitled to any
broker's or finder's fee or any other commission directly or indirectly in
connection with the transactions contemplated herein. Each party hereto
further agrees to indemnify each other party for any claims, losses or
expenses incurred by such other party as a result of the representation in
this Section 6.13 being untrue.
6.13 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
6.14 California Corporate Securities Law. THE SALE OF THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION OR IN THE ABSENCE OF AN
EXEMPTION FROM SUCH QUALIFICATION IS UNLAWFUL. PRIOR TO ACCEPTANCE OF SUCH
CONSIDERATION BY THE COMPANY, THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN
EXEMPTION FROM SUCH QUALIFICATION BEING AVAILABLE.
IN WITNESS WHEREOF, the parties hereto have executed this SERIES G
PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY:
TIVO INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx, President
and Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this SERIES G
PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first
paragraph hereof.
PURCHASER
NBC MULTIMEDIA, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President, NBC Interactive
EXHIBIT A
SERIES G PREFERRED STOCK PURCHASE AGREEMENT
SCHEDULE OF PURCHASERS
Aggregate
Name Shares Purchase Price
------------------------------------------------------------------------------
Closing: April 16, 1999
NBC MULTIMEDIA, INC. 1,013,513 $7,499,996.20
Address:
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxx Xxxxxx
With a copy to:
Vice President, Corporate Law Group
Fax: (000) 000-0000
Total: 1,013,513 $7,499,996.20
Index of Exhibits
Schedule of Purchasers Exhibit A
Restated Certificate Exhibit B
Investor Rights Agreement Exhibit C
Proprietary Information and Exhibit D
Inventions Agreement
Form of Legal Opinion Exhibit E
EXHIBIT B
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
EXHIBIT C
INVESTOR RIGHTS AGREEMENT
EXHIBIT D
FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
TiVo Inc.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
As an employee of TiVo Inc., its subsidiary or its affiliate
(together, the "Company"), and as a condition of my employment by the
Company and in consideration of the compensation now and hereafter paid to
me, I agree to the following:
1. MAINTAINING CONFIDENTIAL INFORMATION.
(a) Company Information. I agree at all times during the term of
my employment and thereafter to hold in strictest confidence, and not to
use, except for the benefit of the Company, or to disclose to any person,
firm or corporation, without the written authorization of the Board of
Directors of the Company, any trade secrets, confidential knowledge, data
or other proprietary information of the Company ("Proprietary
Information"). By way of illustration and not limitation, Proprietary
Information shall include information relating to products, processes,
know-how, designs, formulas, methods, samples, media and/or cell lines,
developmental or experimental work, improvements, discoveries, plans for
research, new products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs, suppliers and
customers, and information regarding the skills and compensation of other
employees of the Company. Proprietary Information shall not be deemed to
include information which: (i) is now, or hereafter becomes, through no act
or failure to act on the part of the receiving party, generally known or
available; (ii) is known by the receiving party at the time of receiving
such information as evidenced by its records; (iii) is hereafter furnished
to the receiving party by a third party, as a matter of right and without
restriction on disclosure; (iv) is independently developed by the receiving
party without any breach of this Agreement; or (v) is the subject of
written permission to disclose provided by the disclosing party.
(b) Former Employer Information. I agree that I will not, during
my employment with the Company, improperly use or disclose any proprietary
information or trade secrets of my former or concurrent employers or
companies, if any, and that I will not bring onto the premises of the
Company any unpublished documents or any property belonging to my former or
concurrent employers or companies unless previously and specifically
consented to in writing by said employers or companies.
(c) Third Party Information. I recognize that the Company has
received and in the future will receive confidential or proprietary
information from third parties subject to a duty on the Company's part to
maintain the confidentiality of such information and, in some cases, to use
it only for certain limited purposes. I agree that I owe the Company and
such third parties, both during the term of my employment and thereafter, a
duty to hold all such confidential or proprietary information in the
strictest confidence and not to disclose it to any person, firm or
corporation (except in a manner that is consistent with the Company's
agreement with the third party) or use it for the benefit of anyone other
than the Company or such third party (consistent with the Company's
agreement with the third party), unless expressly authorized to act
otherwise by an officer of the Company.
2. ASSIGNMENT OF INVENTIONS AND ORIGINAL WORKS.
(a) Inventions and Original Works Retained by Me. I have attached
hereto as Exhibit A a complete disclosure of all inventions, original works
of authorship, developments, improvements, and trade secrets that I have,
alone or jointly with others, conceived, developed or reduced to practice
or caused to be conceived, developed or reduced to practice prior to the
commencement of my employment with the Company, that I consider to be my
property or the property of third parties and that I wish to have excluded
from the scope of this Agreement. If disclosure of an item on Exhibit A
would cause me to violate any prior confidentiality agreement, I understand
that I am not to disclose such on Exhibit A but in the applicable space on
Exhibit A I am only to disclose a cursory name for each such invention, a
listing of the party(ies) to whom it belongs and the fact that full
disclosure as to such inventions has not been made for that reason. A space
is provided on Exhibit A for such purpose. If no disclosure is attached, I
represent that there are no such inventions.
(b) Inventions and Original Works Assigned to the Company. I agree
that I will make prompt written disclosure to the Company, will hold in
trust for the sole right and benefit of the Company, and hereby assign to
the Company all my right, title and interest in and to any ideas,
inventions, original works of authorship, developments, improvements or
trade secrets which I may solely or jointly conceive or reduce to practice,
or cause to be conceived or reduced to practice, during the period of my
employment with the Company. I recognize that this Agreement does not
require assignment of any invention which qualifies fully for protection
under Section 2870 of the California Labor Code (hereinafter "Section
2870"), which provides as follows:
(i) Any provision in an employment agreement which
provides that an employee shall assign, or offer to assign, any of
his or her rights in an invention to his or her employer shall not
apply to an invention that the employee developed entirely on his
or her own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or
reduction to practice of the invention to the employer's
business, or actual or demonstrably anticipated research
or development of the employer; or
(2) Result from any work performed by the
employee for the employer.
(ii) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be assigned under subdivision (a),
the provision is against the public policy of this state and is
unenforceable.
I acknowledge that all original works of authorship which are made
by me (solely or jointly with others) within the scope of my employment and
which are protectable by copyright are "works made for hire," as that term
is defined in the United States Copyright Act (17 U.S.C., Section 101).
(c) Inventions and Original Works Assigned to the United States. I
hereby assign to the United States government all my right, title and
interest in and to any and all inventions, original works of authorship,
developments, improvements or trade secrets whenever full title to same is
required to be in the United States by a contract between the Company and
the United States or any of its agencies.
(d) Obtaining Letters Patent, Copyright Registrations and Other
Protections. I will assist the Company in every proper way to obtain and
enforce United States and foreign proprietary rights relating to any and
all inventions, original works of authorship, developments, improvements or
trade secrets of the Company in any and all countries. To that end I will
execute, verify and deliver such documents and perform such other acts
(including appearing as a witness) the Company may reasonably request for
use in applying for, obtaining, perfecting, evidencing, sustaining and
enforcing such proprietary rights and the assignment thereof. In addition,
I will execute, verify and deliver assignments of such proprietary rights
to the Company or its designee. My obligation to assist the Company with
respect to proprietary rights in any and all countries shall continue
beyond the termination of my employment, but the Company shall compensate
me at a reasonable rate after my termination for the time actually spent by
me at the Company's request on such assistance.
In the event the Company is unable for any reason, after
reasonable effort, to secure my signature on any document needed in
connection with the actions specified in the preceding paragraph, I hereby
irrevocably designate and appoint the Company and its duly authorized
officers and agents as my agent and attorney-in-fact, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph
with the same legal force and effect as if executed by me. I hereby waive
and quitclaim to the Company any and all claims of any nature whatsoever
which I now or may hereafter have for infringement of any proprietary
rights assigned to the Company.
(e) Obligation to Keep the Company Informed. In addition to my
obligations under paragraph 2(b) above, during the period of my employment
and for one (1) year after termination of my employment for any reason, I
will promptly disclose to the Company fully and in writing all patent
applications filed by me or on my behalf, to the extent permitted by my
subsequent employer (if any), related to the Company's business or to
research or development which, during the period of my employment, had been
performed by the Company or was demonstrably anticipated. At the time of
each such disclosure, I will advise the Company in writing of any
inventions therein that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. I understand that the
Company will keep in confidence and will not disclose to third parties or
use commercially, without my consent, any proprietary information disclosed
in writing to the Company pursuant to this Agreement relating to inventions
that qualify fully for protection under the provisions of Section 2870. I
will preserve the confidentiality of any such invention that does not
qualify fully for protection under Section 2870. I agree to keep and
maintain adequate and current records (in the form of notes, sketches,
drawings and in any other form that may be required by the Company) of all
proprietary information developed by me and all inventions made by me
during the period of my employment at the Company, which records shall be
available to and remain the sole property of the Company at all times.
3. NO CONFLICTING EMPLOYMENT; NO INDUCEMENT OF OTHER EMPLOYEES OR
UNFAIR SOLICITATION OF CUSTOMERS.
I agree that during the period of my employment by the Company I
will not, without the Company's express written consent, engage in any
other employment or business activity directly related to the business in
which the Company is now involved or becomes involved, nor will I engage in
any other activities which conflict with my obligations to the Company. For
the period of my employment by the Company and for one (1) year after the
date of termination of my employment with the Company, I will not induce
any employee of the Company to leave the employ of the Company. After the
termination of my employment with the Company, I will not make any use of
any of the Company's Proprietary Information in soliciting the business of
any customer of the Company (other than on behalf of the Company).
If any restriction set forth in this Section is found by any court
of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which
it may be enforceable.
4. NO CONFLICTING OBLIGATIONS.
I represent that my performance of all the terms of this Agreement
and as an employee of the Company does not and will not breach any
agreement or obligation of mine relating to any time prior to my employment
by the Company. I have not entered into, and I agree I will not enter into,
any agreement either written or oral in conflict herewith.
5. RETURN OF COMPANY DOCUMENTS.
When I leave the employ of the Company, I will deliver to the
Company (and will not keep in my possession, recreate or deliver to anyone
else) any and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, together with all copies thereof
(in whatever medium recorded) belonging to the Company, its successors or
assigns whether kept at the Company, home or elsewhere; such materials
include, but are not limited to, any embodiment of the Company's
Proprietary Information. Prior to leaving, I will cooperate with the
Company in completing and signing the Company's termination statement for
technical and management personnel confirming the above and my obligations
under this Agreement.
6. NOTIFICATION OF NEW EMPLOYER.
In the event that I leave the employ of the Company, I hereby
consent to the notification of my new employer of my rights and obligations
under this Agreement.
7. LEGAL AND EQUITABLE REMEDIES.
Because my services are personal and unique and because I may have
access to and become acquainted with the proprietary information of the
Company, the Company shall have the right to enforce this Agreement and any
of its provisions by injunction, specific performance or other equitable
relief, without prejudice to any other rights and remedies that the Company
may have for a breach of this Agreement.
8. GENERAL PROVISIONS.
(a) Not an Employment Contract. I agree and understand that
nothing in this Agreement shall confer any right with respect to
continuation of my employment by the Company, nor shall it interfere in any
way with my right or the Company's right to terminate my employment at any
time, with or without cause.
(b) Governing Law; Consent to Personal Jurisdiction. This
Agreement will be governed by and construed according to the laws of the
State of California, excluding conflicts of laws principles. I hereby
expressly consent to the personal jurisdiction of the state and federal
courts located in California for any lawsuit filed there against me by the
Company arising from or relating to this Agreement.
(c) Entire Agreement. This Agreement, and Exhibit A attached
hereto and hereby incorporated herein, sets forth the final, complete and
exclusive agreement and understanding between the Company and me relating
to the subject matter hereof and supersedes all prior and contemporaneous
understandings and agreements relating to its subject matter. No
modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing and signed
by both the Company and me. Any subsequent change or changes in my duties,
salary or compensation will not affect the validity or scope of this
Agreement.
(d) Severability. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then the remaining provisions
will continue in full force and effect.
(e) Successors and Assigns. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will
be for the benefit of the Company, its successors and its assigns.
(f) Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the
Company to any successor in interest or other assignee.
(g) Waiver. No waiver by the Company of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No
waiver by the Company of any right under this Agreement shall be construed
as a waiver of any other right. The Company shall not be required to give
notice to enforce strict adherence to all terms of this Agreement.
(h) Notice. Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified below or at such
other address as the party shall specify in writing. Such notice shall be
deemed given upon personal delivery, or sent by certified or registered
mail, postage prepaid, three (3) days after the date of mailing.
This Agreement shall be effective as of the first day of my
employment with the Company, namely: __________, 199_.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I
MAKE DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE
COMPANY'S PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
I HAVE READ THE AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I
HAVE COMPLETELY FILLED OUT EXHIBIT A TO THE AGREEMENT.
Dated: ____________, 199___
------------------------------------
Signature
------------------------------------
Name of Employee
------------------------------------
Address
------------------------------------
ACCEPTED AND AGREED TO:
TiVo Inc.
By:_____________________________
Xxxxxxx Xxxxxx
President and Chief Executive Officer
EXHIBIT A
TiVo Inc.
000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Gentlemen:
1. Except as listed in Section 2 below the following is a complete
disclosure of all inventions or improvements relevant to the subject matter
of my employment by Hi-Tech Corporation (the "Company") that have been made
or conceived or first reduced to practice by me alone or jointly with
others prior to my engagement by the Company:
: No inventions or improvements.
: See below.
---------------------------------------------------------------------
: Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality
with respect to which I owe to the following party(ies):
Invention or Improvement Party(ies) Relationship
1. ____________________________________________________________________
2. ____________________________________________________________________
3. ____________________________________________________________________
: Additional sheets attached.
3. I propose to bring to my employment the following devices,
materials and documents of a former employer or other person to whom I have
an obligation of confidentiality that are not generally available to the
public, which materials and documents may be used in my employment pursuant
to the express written authorization of my former employer or such other
person (a copy of which is attached hereto):
: No inventions or improvements.
: See below.
--------------------------------------------------------------------
: Additional sheets attached.
Date:______________, 1999_
Very truly yours.
------------------------
EXHIBIT E
FORM OF LEGAL OPINION
