Exhibit 3
TIVO INC.
SIXTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. GENERAL...............................................2
1.1 Definitions....................................................2
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER................3
2.1 Restrictions on Transfer.......................................3
2.2 Demand Registration............................................4
2.3 Piggyback Registrations........................................5
2.4 Form S-3 Registration..........................................6
2.5 Expenses of Registration.......................................7
2.6 Obligations of the Company.....................................8
2.7 Termination of Registration Rights.............................9
2.8 Delay of Registration; Furnishing Information..................9
2.9 Indemnification...............................................10
2.10 Assignment of Registration Rights.............................12
2.11 Amendment of Registration Rights..............................12
2.12 "Market Stand-Off" Agreement..................................12
2.13 Rule 144 Reporting............................................13
SECTION 3. COVENANTS OF THE COMPANY.............................13
3.1 Basic Financial Information and Reporting.....................13
3.2 Inspection Rights.............................................14
3.3 Confidentiality of Records....................................15
3.4 Strategic Value I, L.P. Board Observer........................15
3.5 Vulcan Ventures Incorporated Board Observer...................15
3.6 Showtime Board Observer.......................................16
3.7 DIRECTV Board Seat............................................16
3.8 Reservation of Common Stock...................................17
3.9 Proprietary Information and Inventions Agreement..............17
3.10 Board of Directors............................................17
3.11 Termination of Covenants......................................17
SECTION 4. RIGHTS OF FIRST REFUSAL..............................17
4.1 Subsequent Offerings..........................................17
4.2 Exercise of Rights............................................18
4.3 Issuance of Equity Securities to Other Persons................18
4.4 Termination of Rights of First Refusal........................18
4.5 Transfer of Rights of First Refusal...........................18
4.6 Excluded Securities...........................................18
SECTION 5. MISCELLANEOUS........................................19
5.1 Governing Law.................................................19
5.2 Survival......................................................19
5.3 Successors and Assigns........................................19
5.4 Entire Agreement..............................................19
5.5 Severability..................................................19
5.6 Amendment and Waiver..........................................19
5.7 Delays or Omissions...........................................20
5.8 Notices.......................................................20
5.9 Titles and Subtitles..........................................20
5.10 Counterparts..................................................20
TIVO INC.
SIXTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the
"Agreement") is entered into as of the 16 day of April, 1999, by and among
TIVO INC., a Delaware corporation (the "Company") and the purchasers of the
Company's Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series
F Preferred Stock, Series G Preferred Stock (together, the "Series
Preferred") and Registrable Common Stock set forth on Exhibit A hereto. The
purchasers of the Series Preferred and Registrable Common Stock shall be
referred to hereinafter as the "Investors" and each individually as an
"Investor."
RECITALS
WHEREAS, certain of the Investors hold shares of the Company's
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock and Registrable Common Stock and possess registration
rights, information rights and other rights pursuant to that certain Fifth
Amended and Restated Investor Rights Agreement dated as of April 13, 1999,
between the Company and such Investors (the "Prior Agreement");
WHEREAS, the Company proposes to sell and issue up to One Million
Thirteen Thousand Five Hundred Thirteen (1,013,513) shares of its Series G
Preferred Stock pursuant to that certain Series G Preferred Stock Purchase
Agreement by and between the Company and the purchasers listed on Exhibit A
thereto (the "Purchase Agreement");
WHEREAS, the undersigned Investors who hold the Company's Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series
D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and
Registrable Common Stock desire to terminate the Prior Agreement and to
accept the rights created pursuant hereto in lieu of rights granted to them
under the Prior Agreement; and
WHEREAS, in order to induce the Company and certain of the
Investors to enter into the Purchase Agreement, the Investors and the
Company hereby agree that this Agreement shall amend and restate the Prior
Agreement and shall extend to the Investors the registration rights,
information rights and other rights as set forth below.
NOW THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Purchase Agreement, the parties mutually agree as
follows:
SECTION 1. GENERAL
1.1 Definitions. As used in this Agreement the following terms
shall have the following respective meanings:
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Form S-3" means such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities
Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
"Holder" means any person owning of record Registrable Securities
that have not been sold to the public or any assignee of record of such
Registrable Securities in accordance with Section 2.10 hereof.
"Initial Offering" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the
Securities Act.
"Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Common Stock" means Common Stock of the Company
issued to DIRECTV, Inc., a California corporation ("DIRECTV"), pursuant to
that Marketing Agreement dated April 13, 1999, by and between the Company
and DIRECTV.
"Registrable Securities" means (a) Common Stock of the Company
issued or issuable upon conversion of the Shares; (b) any Common Stock of
the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
above-described securities and (c) the Registrable Common Stock.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities sold by a person to the public either pursuant to a registration
statement or Rule 144 or sold in a private transaction in which the
transferor's rights under Section 2 of this Agreement are not assigned.
"Registrable Securities then outstanding" shall be the number of
shares determined by calculating the total number of shares of the
Company's Common Stock that are Registrable Securities and either (a) are
then issued and outstanding or (b) are issuable pursuant to then
exercisable or convertible securities.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including,
without limitation, all registration and filing fees, printing expenses,
fees and disbursements of counsel for the Company, blue sky fees and
expenses and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees
of the Company which shall be paid in any event by the Company).
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale.
"Shares" shall mean the Company's Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred
Stock held by the Investors listed on Exhibit A hereto and their permitted
assigns.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until:
(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound
by the terms of this Agreement, (B) such Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company
with a reasonably detailed written statement of the circumstances
surrounding the proposed disposition (such statement to include, without
limitation, the name of the transferee, the number of shares to be
transferred, the price per share and type of consideration to be received
in the transfer (except for transfers to affiliates that do not manufacture
or distribute customizable personal television systems or services) and the
timing of such transfer) and (C) if reasonably requested by the Company,
such Holder shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not
require registration of such shares under the Securities Act. It is agreed
that the Company will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances.
(iii) Notwithstanding the provisions of paragraphs (i)
and (ii) above, no such registration statement or opinion of counsel shall
be necessary for a transfer by a Holder (A) which is a partnership to its
partners or former partners in accordance with partnership interests, (B)
which is a corporation to its stockholders in accordance with their
interest in the corporation, (C) which is a limited liability company to
its members or former members in accordance with their interest in the
limited liability company, (D) to the Holder's family member or trust for
the benefit of an individual Holder, or (E) to an affiliate of Holder that
does not manufacture or distribute customizable personal television systems
or services; provided that in each case the transferee will be subject to
the terms of this Agreement to the same extent as if he were an original
Holder hereunder.
(b) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be
stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state
securities laws or as provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
INVESTOR RIGHTS AGREEMENT, AS AMENDED, THAT CONTAINS CERTAIN
RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES, INCLUDING A
MARKET STAND-OFF AGREEMENT. A COPY OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the
securities proposed to be disposed of may lawfully be so disposed of
without registration, qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to
such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
2.2 Demand Registration.
(a) Subject to the conditions of this Section 2.2, if the Company
shall receive a written request from the Holders of at least thirty percent
(30%) of the Registrable Securities then outstanding (the "Initiating
Holders") that the Company file a registration statement under the
Securities Act covering the registration of Registrable Securities having
an aggregate offering price to the public of at least $10,000,000 (a
"Qualified Public Offering"), then the Company shall, within thirty (30)
days of the receipt thereof, give written notice of such request to all
Holders, and subject to the limitations of this Section 2.2, use its best
efforts to effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that the Holders request to be
registered.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
so advise the Company as a part of their request made pursuant to this
Section 2.2 or any request pursuant to Section 2.4 and the Company shall
include such information in the written notice referred to in Section
2.2(a) or Section 2.4(a), as applicable. In such event, the right of any
Holder to include its Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders (which underwriter or underwriters shall
be reasonably acceptable to the Company). Notwithstanding any other
provision of this Section 2.2 or Section 2.4, if the underwriter advises
the Company that marketing factors require a limitation of the number of
securities to be underwritten (including Registrable Securities) then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares that
may be included in the underwriting shall be allocated to the Holders of
such Registrable Securities on a pro rata basis based on the number of
Registrable Securities held by all such Holders (including the Initiating
Holders). Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(i) prior to the earlier of September 1, 2001 or 180 days
after the effective date of a registration statement pertaining to the
Initial Offering; and
(ii) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective.
2.3 Piggyback Registrations. The Company shall notify all Holders
of Registrable Securities in writing at least thirty (30) days prior to the
filing of any registration statement under the Securities Act for purposes
of a public offering of securities of the Company (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating
to employee benefit plans or with respect to corporate reorganizations or
other transactions under Rule 145 of the Securities Act) and will afford
each such Holder an opportunity to include in such registration statement
all or part of such Registrable Securities held by such Holder. Each Holder
desiring to include in any such registration statement all or any part of
the Registrable Securities held by it shall, within fifteen (15) days after
the above-described notice from the Company, so notify the Company in
writing. Such notice shall state the intended method of disposition of the
Registrable Securities by such Holder. If a Holder decides not to include
all of its Registrable Securities in any registration statement thereafter
filed by the Company, such Holder shall nevertheless continue to have the
right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with
respect to offerings of its securities, all upon the terms and conditions
set forth herein.
(a) Underwriting. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten
offering, the Company shall so advise the Holders of Registrable Securities
in the above-described notice. In such event, the right of any such Holder
to be included in a registration pursuant to this Section 2.3 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding
any other provision of the Agreement, if the underwriter determines in good
faith that marketing factors require a limitation of the number of shares
to be underwritten, the number of shares that may be included in the
underwriting shall be allocated, first, to the Company; second, to the
Holders on a pro rata basis based on the total number of Registrable
Securities held by the Holders; and third, to any stockholder of the
Company (other than a Holder) on a pro rata basis. No such reduction shall
(i) reduce the securities being offered by the Company for its own account
to be included in the registration and underwriting, or (ii) reduce the
amount of securities of the selling Holders included in the registration
below thirty percent (30%) of the total amount of securities included in
such registration, unless such offering is the Initial Offering and such
registration does not include shares of any other selling stockholders, in
which event any or all of the Registrable Securities of the Holders may be
excluded in accordance with the immediately preceding sentence.
(b) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 2.5 hereof.
2.4 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders of at least 100,000 shares of Registrable Securities
a written request or requests that the Company effect a registration on
Form S-3 (or any successor to Form S-3) or any similar short-form
registration statement and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of
Registrable Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such
written notice from the Company; provided, however, that the Company shall
not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 2.4:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders, or
(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any)
at an aggregate price to the public of less than $3,000,000, or
(iii) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 2.4, or
(iv) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent
to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders. All such Registration
Expenses incurred in connection with registrations requested pursuant to
this Section 2.4 after the first four (4) registrations shall be paid by
the selling Holders pro rata in proportion to the number of shares sold by
each.
2.5 Expenses of Registration. Except as specifically provided
herein, all Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Section 2.2 or any
registration under Section 2.3 or Section 2.4 herein shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the holders of the securities so registered
pro rata on the basis of the number of shares so registered. The Company
shall not, however, be required to pay for expenses of any registration
proceeding begun pursuant to Section 2.2 or 2.4, the request of which has
been subsequently withdrawn by the Initiating Holders unless (a) the
withdrawal is based upon material adverse information concerning the
Company of which the Initiating Holders were not aware at the time of such
request or (b) the Holders of a majority of Registrable Securities agree to
forfeit their right to one requested registration pursuant to Section 2.2
or Section 2.4, as applicable, in which event such right shall be forfeited
by all Holders. If the Holders are required to pay the Registration
Expenses, such expenses shall be borne by the holders of securities
(including Registrable Securities) requesting such registration in
proportion to the number of shares for which registration was requested. If
the Company is required to pay the Registration Expenses of a withdrawn
offering pursuant to clause (a) above, then the Holders shall not forfeit
their rights pursuant to Section 2.2 or Section 2.4 to a demand
registration.
2.6 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to
cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
ninety (90) days or, if earlier, until the Holder or Holders have completed
the distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by
them.
(d) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business
or to file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Furnish, at the request of a majority in interest of the
Holders participating in the registration, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (i) an
opinion, dated as of such date, of the counsel representing the Company for
the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated
as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and
if permitted by applicable accounting standards, to the Holders requesting
registration of Registrable Securities.
2.7 Termination of Registration Rights. All registration rights
granted under this Section 2 shall terminate and be of no further force and
effect five (5) years after the date of the Company's Initial Offering. In
addition, a Holder's registration rights shall expire if (a) the Company
has completed its Initial Offering and is subject to the provisions of the
Exchange Act, and (b) all Registrable Securities held by and issuable to
such Holder may be sold under Rule 144 during any ninety (90) day period.
Following such expiration provided for in the preceding two sentences, such
Holder's shares of Common Stock of the Company shall no longer be
considered Registrable Securities for purposes of this Section 2.
2.8 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) The Company shall not be required to submit any registration
statement to the Commission pursuant to Section 2.2, 2.3 or 2.4 if the
selling Holders have not furnished to the Company such information
regarding themselves, the Registrable Securities held by them and the
intended method of disposition of such securities as shall be required to
effect the registration of their Registrable Securities; provided, however,
that the Company may eliminate the shares proposed to be sold by any
selling Holder from registration pursuant to Section 2.2, 2.3 or 2.4 if
such Holder has not provided such information, to the reasonable
satisfaction of the Company, within twenty (20) days of having received
written notice of a request for such information from the Company.
(c) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.2 or Section 2.4 if, due to
the operation of subsection 2.2(b), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in
the registration does not equal or exceed the number of shares or the
anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in Section
2.2 or Section 2.4, whichever is applicable.
2.9 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) The Company will indemnify and hold harmless each Holder, the
partners, officers, directors and legal counsel of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation") by the
Company: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with the
offering covered by such registration statement; and the Company will
reimburse each such Holder, partner, officer, director, legal counsel,
underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided however, that
the indemnity agreement contained in this Section 2.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld, nor shall the Company be
liable in any such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by such
Holder, partner, officer, director, legal counsel, underwriter or
controlling person of such Holder.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration
qualifications or compliance is being effected, indemnify and hold harmless
the Company, each of its directors, its officers, and legal counsel and
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter or
other such Holder, or partner, director, officer or controlling person of
such other Holder may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder under an instrument duly executed by
such Holder and stated to be specifically for use in connection with such
registration; and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
legal counsel, controlling person, underwriter or other Holder, or partner,
officer, director, legal counsel or controlling person of such other Holder
in connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in
this Section 2.9(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Holder, which consent shall not be
unreasonably withheld; provided further, that in no event shall any
indemnity under this Section 2.9 exceed the proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
2.9, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however, that
an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2.9, but the omission
so to deliver written notice to the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than
under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or
liabilities referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall to the extent
permitted by applicable law contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the
other in connection with the Violation(s) that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided,
that in no event shall any contribution by a Holder hereunder exceed the
proceeds from the offering received by such Holder.
(e) The obligations of the Company and Holders under this Section
2.9 shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim
or litigation.
2.10 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 2 may
be assigned by a Holder to a transferee or assignee of Registrable
Securities which (a) (i) is a subsidiary, parent, affiliate, general
partner, limited partner or retired partner of a Holder, or (ii) is a
Holder's family member or trust for the benefit of an individual Holder,
and (b) acquires at least thirty percent (30%) of the shares of Registrable
Securities held by a Holder as of the date of this Agreement. No assignment
of Registrable Securities pursuant to this Section 2.10 shall be effective
unless (A) the transferor shall, within ten (10) days after such transfer,
furnish to the Company written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (B) such transferee shall agree
to be subject to all restrictions set forth in this Agreement.
2.11 Amendment of Registration Rights. Any provision of this
Section 2 may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Holders of at least sixty-six and two-thirds percent (66-2/3%) of the
Registrable Securities then outstanding; provided, however, that any
alteration or change in the rights or privileges of any series of Series
Preferred that discriminates against such series of Series Preferred shall
additionally require the written consent of at least sixty-six and
two-thirds percent (66-2/3%) of such series of Series Preferred. Any
amendment or waiver effected in accordance with this Section 2.11 shall be
binding upon each Holder and the Company. By acceptance of any benefits
under this Section 2, Holders of Registrable Securities hereby agree to be
bound by the provisions hereunder.
2.12 "Market Stand-Off" Agreement. Each Holder hereby agrees that
such Holder shall not sell or otherwise transfer or dispose of any Common
Stock (or other securities) of the Company held by such Holder (other than
those included in the registration) for a period specified by the
representative of the underwriters of Common Stock (or other securities) of
the Company not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act, provided that such agreement shall apply only to the
Company's Initial Offering.
Each Holder agrees to execute and deliver such other agreements as
may be reasonably requested by the Company or the underwriter which are
consistent with the foregoing or which are necessary to give further effect
thereto. The obligations described in this Section 2.12 shall not apply to
a registration relating solely to employee benefit plans on Form S-l or
Form S-8 or similar forms that may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction on Form
S-4 or similar forms that may be promulgated in the future. The Company may
impose stop-transfer instructions with respect to the shares of Common
Stock (or other securities) subject to the foregoing restriction until the
end of said one hundred eighty (180) day period.
2.13 Rule 144 Reporting. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date
of the first registration filed by the Company for an offering of its
securities to the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish
to such Holder forthwith upon request: a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 of
the Securities Act, and of the Exchange Act (at any time after it has
become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and
documents as a Holder may reasonably request in availing itself of any rule
or regulation of the SEC allowing it to sell any such securities without
registration.
SECTION 3. COVENANTS OF THE COMPANY.
3.1 Basic Financial Information and Reporting.
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business
transactions pursuant to a system of accounting established and
administered in accordance with generally accepted accounting principles
consistently applied, and will set aside on its books all such proper
accruals and reserves as shall be required under generally accepted
accounting principles consistently applied.
(b) As soon as practicable after the end of each fiscal year of
the Company, and in any event within ninety (90) days thereafter, the
Company will furnish each Investor a balance sheet of the Company, as at
the end of such fiscal year, and a statement of income and a statement of
cash flows of the Company, for such year, all prepared in accordance with
generally accepted accounting principles consistently applied and setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail. Such financial statements shall be
accompanied by a report and opinion thereon by independent public
accountants of national standing selected by the Company's Board of
Directors.
(c) The Company will furnish each Investor, as soon as practicable
after the end of each month, and in any event within thirty (30) days
thereafter, a balance sheet of the Company as of the end of each such
month, and a statement of income and a statement of cash flows of the
Company for such month and for the current fiscal year to date, prepared in
accordance with generally accepted accounting principles, with the
exception that no notes need be attached to such statements and year-end
audit adjustments may not have been made.
(d) To each Investor (with its affiliates) who owns not less than
five hundred thousand (500,000) shares of Registrable Securities (a "Major
Investor"), the Company will furnish each such Major Investor (i) as soon
as practicable after the end of the first, second and third quarterly
accounting periods in each fiscal year of the Company, and in any event
within forty-five (45) days thereafter, a balance sheet of the Company as
of the end of each such quarterly period, and a statement of income and a
statement of cash flows of the Company for such period and for the current
fiscal year to date, prepared in accordance with generally accepted
accounting principles, with the exception that no notes need be attached to
such statements and year-end audit adjustments may not have been made; (ii)
at least thirty (30) days prior to the beginning of each fiscal year an
annual budget and operating plans for such fiscal year (and as soon as
available, any subsequent revisions thereto); and (iii) as soon as
practicable after the end of each month, and in any event within thirty
(30) days thereafter, a balance sheet of the Company as of the end of each
such month, and a statement of income and a statement of cash flows of the
Company for such month and for the current fiscal year to date, including a
comparison to plan figures for such period and to the financial statements
for the comparable period for the prior fiscal year, prepared in accordance
with generally accepted accounting principles consistently applied, with
the exception that no notes need be attached to such statements and
year-end audit adjustments may not have been made.
(e) In the event Showtime Networks, Inc. ("Showtime") has
Registrable Securities included in the Company's Registration Statement on
Form S-1 with the Securities and Exchange Commission in connection with the
Company's Initial Offering, as soon as practical after the filing of such
Form S-l, and any amendment thereto, the Company shall deliver to Showtime
one (1) copy of (i) such Form S-l or amendment, and (ii) each exhibit as
filed with such Form S-1 or amendment.
3.2 Inspection Rights. Each Major Investor shall have the right to
visit and inspect any of the properties of the Company or any of its
subsidiaries, and to discuss the affairs, finances and accounts of the
Company or any of its subsidiaries with its officers, and to review such
information as is reasonably requested all at such reasonable times and as
often as may be reasonably requested; provided, however, that the Company
shall not be obligated under this Section 3.2 with respect to a competitor
of the Company or with respect to information which the Board of Directors
determines in good faith is confidential and should not, therefore, be
disclosed. So long as NBC Multimedia, Inc. and National Broadcasting
Company, Inc. (including, in each case, their affiliates) do not
manufacture or distribute customizable personal television systems or
services, the Company acknowledges and agrees that NBC Multimedia, Inc. and
National Broadcasting Company, Inc. shall not be considered to be
competitors of the Company for purposes of this Section 3.2.
3.3 Confidentiality of Records. Each Investor agrees to use, and
to use its best efforts to insure that its authorized representatives use,
the same degree of care as such Investor uses to protect its own
confidential information to keep confidential any information furnished to
it which the Company identifies as being confidential or proprietary (so
long as such information is not in the public domain), except that such
Investor may disclose such proprietary or confidential information to any
partner, subsidiary or parent of such Investor for the purpose of
evaluating its investment in the Company as long as such partner,
subsidiary or parent is advised of the confidentiality provisions of this
Section 3.3.
3.4 Strategic Value I, L.P. Board Observer. So long as Strategic
Value I, L.P. ("SVI") or one of its affiliates holds at least 730,000
shares of the Company's Series C Preferred Stock or Common Stock, SVI shall
have the right to appoint a representative (the "SVI Representative") who
shall have the right to attend all meetings of the Company's Board of
Directors in a nonvoting observer capacity, to receive notice of such
meetings and to receive the information provided by the Company to the
Board of Directors; provided, however, that the Company may require as a
condition precedent to SVI's rights under this Section 3.4 that each person
proposing to attend any meeting of the Company's Board of Directors and
each person to have access to any of the information provided by the
Company to the Board of Directors shall agree to hold in confidence and
trust and to act in a fiduciary manner with respect to all information so
received during such meetings or otherwise; and, provided further, that the
Company reserves the right not to provide information and to exclude the
SVI Representative from any meeting or portion thereof if delivery of such
information or attendance at such meeting by such SVI Representative would
result in disclosure of trade secrets to the SVI Representative or would
adversely affect the attorney-client privilege between the Company and its
counsel. Notwithstanding the foregoing, SVI shall have no rights under this
Section 3.4 during any period in which an officer of SVI is serving as a
director of the Company.
3.5 Vulcan Ventures Incorporated Board Observer. So long as Vulcan
Ventures Incorporated ("Vulcan") or one of its affiliates holds at least
1,000,000 shares of the Company's Series D Preferred Stock or Common Stock,
Vulcan shall have the right to appoint a representative (the "Vulcan
Representative") who shall have the right to attend all meetings of the
Company's Board of Directors in a nonvoting observer capacity, to receive
notice of such meetings and to receive the information provided by the
Company to the Board of Directors; provided, however, that the Company may
require as a condition precedent to Vulcan's rights under this Section 3.5
that each person proposing to attend any meeting of the Company's Board of
Directors and each person to have access to any of the information provided
by the Company to the Board of Directors shall agree to hold in confidence
and trust and to act in a fiduciary manner with respect to all information
so received during such meetings or otherwise; and, provided further, that
the Company reserves the right not to provide information and to exclude
the Vulcan Representative from any meeting or portion thereof if delivery
of such information or attendance at such meeting by such Vulcan
Representative would result in disclosure of trade secrets to the Vulcan
Representative or would adversely affect the attorney-client privilege
between the Company and its counsel. Notwithstanding the foregoing, Vulcan
shall have no rights under this Section 3.5 during any period in which an
officer of Vulcan is serving as a director of the Company.
3.6 Showtime Board Observer. So long as Showtime or one of its
affiliates holds at least 200,000 shares of the Company's Series E
Preferred Stock or Common Stock, Showtime shall have the right to appoint a
representative (the "Showtime Representative") who shall have the right to
attend all meetings of the Company's Board of Directors in a nonvoting
observer capacity, to receive notice of such meetings and to receive the
information provided by the Company to the Board of Directors; provided,
however, that the Showtime Representative executes a nondisclosure
agreement in a form acceptable to the Company; provided further, that the
Company may require as a condition precedent to Showtime's rights under
this Section 3.6 that each person proposing to attend any meeting of the
Company's Board of Directors and each person to have access to any of the
information provided by the Company to the Board of Directors shall agree
to hold in confidence and trust and to act in a fiduciary manner with
respect to all information so received during such meetings or otherwise;
and, provided further, that the Company reserves the right not to provide
information and to exclude the Showtime Representative from any meeting or
portion thereof if delivery of such information or attendance at such
meeting by such Showtime Representative would result in disclosure of trade
secrets to the Showtime Representative or would adversely affect the
attorney-client privilege between the Company and its counsel.
Notwithstanding the foregoing, Showtime shall have no rights under this
Section 3.6 during any period in which an officer of Showtime is serving as
a director of the Company.
3.7 DIRECTV Board Seat. So long as DIRECTV, Inc. ("DIRECTV") or
one of its affiliates holds at least 2,500,000 shares of the Company's
capital stock (consisting of the Company's Series F Preferred Stock and
Common Stock), the Holders of the Company's Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock shall vote to
designate a person designated by DIRECTV as the director which such Holders
are entitled to designate pursuant to Section D.2(c)(iii) of Article III of
the Company's Amended and Restated Certificate of Incorporation; provided
that the person initially designated by DIRECTV shall be Xxxxx X. Xxxxxxx
and any subsequent replacement shall be chosen by such Holders from a list
of three executives of DIRECTV provided to such Holders in DIRECTV's sole
discretion. In addition to the requirements set forth in Section 5.6 below,
and so long as DIRECTV or one of its affiliates holds at least 2,500,000
shares of the Company's capital stock (consisting of Series F Preferred
Stock and Common Stock), any amendment or waiver of this Section 3.7 shall
require the prior written consent of DIRECTV.
3.8 Reservation of Common Stock. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the
conversion of the Preferred Stock, all Common Stock issuable from time to
time upon such conversion.
3.9 Proprietary Information and Inventions Agreement. The Company
shall require all employees and consultants to execute and deliver a
Proprietary Information and Inventions Agreement in the form attached to
the Purchase Agreement.
3.10 Board of Directors. As of the date of this Agreement (i) the
authorized size of the Board of Directors of the Company is seven members,
and (ii) the members of the Board of Directors of the Company include
Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxxx
and two vacancies. Pursuant to Section 3.7 of this Agreement, the Holders
of the Company's Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock shall, upon execution of this Agreement, promptly
designate and elect Xxxxx X. Xxxxxxx as a director of the Company pursuant
to Section D.2(c)(iii) of Article III of the Company's Amended and Restated
Certificate of Incorporation. The Holders of all of the outstanding shares
of the Company's Series G Preferred Stock hereby designate and elect Xxxxxx
Xxxxxx as a director of the Company pursuant to Section D.2(c)(iv) of
Article III of the Company's Amended and Restated Certificate of
Incorporation.
3.11 Termination of Covenants. All covenants of the Company
contained in Section 3 of this Agreement shall expire and terminate as to
each Investor on the effective date of the registration statement
pertaining to the Initial Offering.
SECTION 4. RIGHTS OF FIRST REFUSAL.
4.1 Subsequent Offerings. Each Investor shall have a right of
first refusal to purchase its pro rata share of all Equity Securities, as
defined below, that the Company may, from time to time, propose to sell and
issue after the date of this Agreement, other than the Equity Securities
excluded by Section 4.6 hereof. Each Investor's pro rata share is equal to
the ratio of (a) the number of shares of the Company's Common Stock
(including all shares of Common Stock issued or issuable upon conversion of
the Shares) which such Investor is deemed to be a holder immediately prior
to the issuance of such Equity Securities to (b) the total number of shares
of the Company's outstanding Common Stock (including all shares of Common
Stock issued or issuable upon conversion of the Shares or upon the exercise
of any outstanding warrants or options) immediately prior to the issuance
of the Equity Securities. The term "Equity Securities" shall mean (i) any
Common Stock, Preferred Stock or other security of the Company, (ii) any
security convertible, with or without consideration, into any Common Stock,
Preferred Stock or other security (including any option to purchase such a
convertible security), (iii) any security carrying any warrant or right to
subscribe to or purchase any Common Stock, Preferred Stock or other
security or (iv) any such warrant or right.
4.2 Exercise of Rights. If the Company proposes to issue any
Equity Securities, it shall give each Investor written notice of its
intention, describing the Equity Securities, the price and the terms and
conditions upon which the Company proposes to issue the same. Each Investor
shall have fifteen (15) days from the giving of such notice to agree to
purchase its pro rata share of the Equity Securities for the price and upon
the terms and conditions specified in the notice by giving written notice
to the Company and stating therein the quantity of Equity Securities to be
purchased. Notwithstanding the foregoing, the Company shall not be required
to offer Or sell such Equity Securities to any Investor who would cause the
Company to be in violation of applicable federal securities laws by virtue
of such offer or sale.
4.3 Issuance of Equity Securities to Other Persons. If the
Investors fail to exercise in full the rights of first refusal, the Company
shall have ninety (90) days thereafter to sell the Equity Securities in
respect of which the Investor's rights were not exercised, at a price and
upon general terms and conditions materially no more favorable to the
purchasers thereof than specified in the Company's notice to the Investors
pursuant to Section 4.2 hereof. If the Company has not sold such Equity
Securities within ninety (90) days of the notice provided pursuant to
Section 4.2, the Company shall not thereafter issue or sell any Equity
Securities, without first offering such securities to the Investors in the
manner provided above.
4.4 Termination of Rights of First Refusal. The rights of first
refusal established by this Section 4 shall not apply to, and shall
terminate upon the effective date of the registration statement pertaining
to the Company's Initial Offering.
4.5 Transfer of Rights of First Refusal. The rights of first
refusal of each Investor under this Section 4 may be transferred to the
same parties, subject to the same restrictions as any transfer of
registration rights pursuant to Section 2.10.
4.6 Excluded Securities. The rights of first refusal established
by this Section 4 shall have no application to any of the following Equity
Securities:
(a) shares of Common Stock (and/or options, warrants or other
Common Stock purchase rights issued pursuant to such options, warrants or
other rights) issued or to be issued to employees, officers or directors
of, or consultants or advisors to the Company or any subsidiary, pursuant
to stock purchase or stock option plans or other compensatory arrangements
that are approved by the Board of Directors;
(b) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination approved by the Board of Directors;
(c) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company;
(d) shares of Common Stock issued upon conversion of the Shares;
(e) any Equity Securities issued pursuant to any equipment leasing
arrangement, or debt financing from a bank or other institution; provided
that such transactions and the issuance of shares therein, have been
approved by the Company's Board of Directors; and
(f) any Equity Securities issued in connection with strategic
transactions involving the Company and other entities, including (i) joint
ventures, manufacturing, marketing or distribution arrangements or (ii)
technology transfer or development arrangements; provided that such
strategic transactions and the issuance of shares therein, have been
approved by the Company's Board of Directors.
SECTION 5. MISCELLANEOUS.
5.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to
agreements among California residents entered into and to be performed
entirely within California.
5.2 Survival. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by any Holder
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.
5.3 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 Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate
written notice of the transfer of any Registrable Securities specifying the
full name and address of the transferee, the Company may deem and treat the
person listed as the holder of such shares in its records as the absolute
owner and holder of such shares for all purposes, including the payment of
dividends or any redemption price.
5.4 Entire Agreement. This Agreement, the Exhibits and Schedules
hereto, the Purchase Agreement and the other documents delivered pursuant
thereto 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.
5.5 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.
5.6 Amendment and Waiver
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the
Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived
only with the written consent of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the Registrable Securities.
(c) Notwithstanding the foregoing, this Agreement may be amended
with only the written consent of the Company to include additional
purchasers of Shares as "Investors," "Holders" and parties hereto.
5.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any
breach, default or noncompliance of the Company under this Agreement 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 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 any Holder's part of any breach,
default or noncompliance under the Agreement or any waiver on such Holder's
part of any provisions or conditions of this Agreement must be in writing
and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, by law, or otherwise
afforded to Holders, shall be cumulative and not alternative.
5.8 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 party to be notified at
the address as set forth on the signature pages hereof or Exhibit A hereto
or at such other address as such party may designate by ten (10) days
advance written notice to the other parties hereto.
5.9 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
5.10 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.
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS 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 SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
INSTITUTIONAL VENTURE PARTNERS VII, L.P.
By Its General Partner
Institutional Venture Management VII, L.P.
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Xxxxxxxx X. Xxxx
General Partner
INSTITUTIONAL VENTURE MANAGEMENT VII, L.P.
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Xxxxxxxx X. Xxxx
General Partner
IVP FOUNDERS FUND I, L.P.
By Its General Partner
Institutional Venture Management VI, L.P.
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Xxxxxxxx X. Xxxx
General Partner
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
INVESTORS
NEW ENTERPRISE ASSOCIATES VII, L.P.
By NEA Partners VII, L.P.,
Its General Partner
By: /s/ C. Xxxxxxx Xxxxxxxx
------------------------------------
C. Xxxxxxx Xxxxxxxx
General Partner
NEA PRESIDENTS FUND, L.P.
By NEA Partners, L.P.,
Its General Partner
By: /s/ C. Xxxxxxx Xxxxxxxx
-----------------------------------
C. Xxxxxxx Xxxxxxxx
General Partner
NEA VENTURES 1997, L.P.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------
Vice President
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
----------------------------
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
STRATEGIC VALUE I, L.P.
By Its General Partner
SV Partners, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: Managing Member
---------------------------
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: Vice President
-------------------------
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
DIRECTV, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------
Title: Vice President
-------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this SIXTH
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in
the first paragraph hereof.
NBC MULTIMEDIA, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------------
Title: President
----------------------------
EXHIBIT A
INVESTOR RIGHTS AGREEMENT
SCHEDULE OF INVESTORS
SERIES A PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
New Enterprise Associates VII, L.P. 1,950,000 $ 1,170,000.00
NEA Presidents Fund, L.P. 41,667 $ 25,000.20
NEA Ventures 1997, L.P. 8,333 $ 4,999.80
Institutional Venture Partners VII, L.P. 1,890,000 $ 1,134,000.00
Institutional Venture Management VII, L.P. 40,000 $ 24,000.00
IVP Founders Fund I, L.P. 70,000 $ 42,000.00
Xxxxxxx Xxxxxx 666,667 $ 400,000.20
(holds 656,667 after
transfers described
below
Xxxxx Xxxxxx 166,667 $ 100,000.20
Xxxx Xxxxxxxx Survivors' Trust 41,667 $ 25,000.20
Xxxxxx X. Xxxxxx, Xx. 83,333 $ 49,999.80
GC&H Investments 41,666 $ 24,999.60
Xxxxx X. Xxxxx 5,000 Transfer from
Xxxxxxx Xxxxxx
Xxx Xxxxxxx 5,000 Transfer from
Xxxxxxx Xxxxxx
Total: 5,000,000 $ 3,000,000
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES B PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
First Closing: May 29, 1998
New Enterprise Associates VII, L.P. 1,587,302 $ 2,000,000.52
Institutional Venture Partners VII, L.P. 1,539,683 $ 1,940,000.58
Institutional Venture Management VII, L.P. 31,746 $ 39,999.96
IVP Founders Fund I, L.P. 15,873 $ 19,999.98
======================== ======================
Subtotal: 3,174,604 $ 4,000,001.04
Second Closing: June 26, 1998
Xxxxxx Xxxxxx 119,048 $ 150,000.48
Xxxxxx X. XxxXxxx 59,524 $ 75,000.24
Ta-Xxx Xxxxx 59,524 $ 75,000.24
Xxxxxx X. Xxxxxx, Xx. 39,683 $ 50,000.58
Xxxxxxxxx Family Trust UTA DTD 9/4/91 39,683 $ 50,000.58
R. Xxxxxxxx Xxxxx 39,683 $ 50,000.58
Xxxxxxx Xxxxxx 39,683 $ 50,000.58
Xxxxx Xxxxxxx 24,800 $ 31,248.00
Xxxx-Xxxx Chow 19,841 $ 24,999.66
Xxxx X. Xxx 19,841 $ 24,999.66
======================== ======================
Subtotal: 3,635,914 $ 4,581,251.64
Third Closing: July 27, 1998
Xxxxxx X. XxxXxxx 25,000 (all 31,500
transferred to
Xxxxx Xxxxxxxxx)
Xxxxx Xxxxxxxxx 25,000 Transferred from
Xxxxxx X. XxxXxxx
25,000 $ 31,500.00
======================== ======================
Total: 3,660,914 $ 4,612,751.64
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES C PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
First Closing: October 8, 1998
Strategic Value I, L.P. 972,973 $ 1,800,000.05
New Enterprise Associates VII, L.P. 594,595 $ 1,100,000.75
Institutional Venture Partners VII, L.P. 576,757 $ 1,067,000.45
Institutional Venture Management VII, L.P. 11,892 $ 22,000.20
IVP Founders Fund, I, L.P. 5,946 $ 11,000.10
Subtotal: 2,162,163 $ 4,000,001.55
Second Closing: October 30, 1998
Comdisco 135,136 $ 250,001.60
Odyssey Capital, LLC 135,136 $ 250,001.60
XxxxxXxx Xxxxx and Xxxxx Xxxxx as Trustees of the 13,513 $ 24,999.05
1998 Xxxxx family Trust
Xxxxxxxx X. Xxxxxxxx & Xxxxxx X. Xxxxxxxx as Trustees 13,513 $ 24,999.05
for the Xxxxxxxx X. Xxxxxxxx Living Tr dated December
27, 1994
Xxxx X. Xxxxx 13,513 $ 24,999.05
Xxxxx Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx Locket 13,513 $ 24,999.05
Xxxxxx X. Xxxxxx 13,513 $ 24,999.05
======================== ======================
Subtotal: 337,837 $ 624,998.45
TOTAL 2,500,000 $ 4,625,000.00
Subsequent Sales of Series C:
Odyssey Capital, LLC 13,513 $ 24,999.05
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES D PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
Vulcan Ventures Incorporated 1,358,695 $ 4,999,997.60
TOTAL: 1,358,695 $ 4,999,997.60
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES E PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
Showtime Networks Inc. 270,270 $ 1,999,998
TOTAL: 270,270 $ 1,999,998
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES F PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
DIRECTV, Inc. 405,405 $ 2,999,997
TOTAL: 405,405 $ 2,999,997
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES G PREFERRED STOCK
Aggregate
Name Shares Purchase Price
------------------------------------------------------- ------------------------ ----------------------
NBC Multimedia, Inc. 1,013,513 $ 7,499,996.20
TOTAL: 1,013,513 $ 7,499,996.20
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
REGISTRABLE COMMON STOCK
Aggregate
Name Shares Purchase Price
--------------------------------------------------- ------------------------- -------------------------
DIRECTV, Inc. 2,981,196 Services, support and
promissory note as set
forth in the Marketing
Agreement
TOTAL: 2,981,196 Services, support and
promissory note as set
forth in the Marketing
Agreement
