EXHIBIT 10.18
WAIVER AGREEMENT
This Waiver Agreement (this "Agreement") is entered into as of January
6, 1997 (the "Effective Date") by and between Macrovision Corporation, a
California corporation ("Macrovision") and Pacific Media Development, Inc., a
California corporation ("PMD").
A. Macrovision and University National Bank & Trust Company, (the
"Trustee") as trustee under a Trust Agreement dated May 21, 1991 (the
"Trust") were parties to a certain Stock and Convertible Note Purchase
Agreement dated as of May 24, 1991 (the "Purchase Agreement").
B. Pursuant to the Purchase Agreement, certain shareholders and
optionholders of Macrovision (collectively, the "Grantors"), pursuant to
certain Shareholder Option Agreements and Optionholder Option Agreements,
respectively (collectively, the "Option Agreements") granted the Trustee as
trustee under the Trust certain rights upon certain events (collectively, the
"Options") to acquire certain shares of Macrovision Common Stock held by such
Grantors.
C. On or about December 3, 1996, all shares of Macrovision Common and
Preferred Stock that had been held in the Trust were delivered by the Trustee
for reissuance in the name of PMD as record holder of such shares. All of the
rights and obligations of the Trustee with respect to such shares, the
Purchase Agreement and the Option Agreements have been assigned and
delegated, respectively, to PMD pursuant to an Assignment Agreement and
Consent.
D. Pursuant to the Option Agreements, the Options become exercisable
upon the filing of a registration statement by Macrovision under the
Securities Act of 1933, as amended (the "Securities Act") in connection with
the initial public offering of Macrovision securities, so long as certain
other conditions are met.
E. Macrovision now contemplates filing, in January 1997, a registration
statement under the Securities Act for an initial public offering of its
securities, and desires that PMD waive any and all rights it has to exercise
the Options in connection with that filing.
F. PMD is willing to so waive its rights to exercise the Options on the
terms and conditions set forth herein.
The parties hereto agree as follows:
1. REGISTRATION STATEMENT. For the purposes of this Agreement, the
"Registration Statement" means a registration statement filed by Macrovision,
not later than January 13, 1997, under the Securities Act in connection with
the initial public offering of its securities, including all pre-effective
amendments thereto, with Macrovision selling not more than three million five
hundred thousand (3,500,000) shares of its common stock (with such number of
shares determined prior and without regard to any reverse stock split) in
such offering, including underwriters' overallotment options, but excluding
shares being sold by persons other than Macrovision.
2. WAIVER. In consideration of the performance by Macrovision of its
obligations hereunder, PMD hereby waives any and all rights it has to
exercise the Options, under the Option Agreements or under Section 8.4 of the
Purchase Agreement, in connection with the filing of the Registration
Statement or the decision of Macrovision's board of directors to file the
Registration Statement. PMD represents and warrants to Macrovision that it
has received by assignment all rights that University Bank as Trustee under
the Trust held pursuant to the Purchase Agreement and the Option Agreements
and that no person other than PMD has any right to exercise the Options.
3. SALE OF SHARES BY PMD. In consideration of the waiver made by PMD
in Section 2 above, Macrovision agrees to cause PMD to be permitted to sell,
pursuant to the Registration Statement, not less than one million (1,000,000)
shares of Macrovision stock (with such number of shares determined prior and
without regard to any reverse stock split).
4. CLOSING OF INITIAL PUBLIC OFFERING. Macrovision agrees that if the
initial public offering pursuant to the Registration Statement has not closed
on or before March 31, 1997, then PMD will have the right to exercise the
Options as the result of the filing of either any further pre-effective
amendment to the Registration Statement filed after such date or any new
registration statement filed by Macrovision after such date under the
Securities Act in connection with the initial public offering of its
securities.
5. THIRD PARTY BENEFICIARIES. The parties hereto agree that the
Grantors are named, intended third party beneficiaries of this Agreement.
6. NOTICE TO GRANTORS. After the execution hereof, Macrovision may
notify each Grantor, in writing, of the waiver granted by PMD hereby. Such
notices shall be made in accordance with each Grantor's respective Option
Agreement, and in form reasonably satisfactory to PMD.
7. ASSIGNMENT; BINDING EFFECT. The benefits and burdens of each party
under this Agreement will not be assignable without the prior written consent
of the other party hereto, and any attempt to assign them without that
consent will be void. Notwithstanding the foregoing, any party may assign
this Agreement to the surviving corporation in a merger or consolidation to
which it is a party or to any person that acquires all or substantially all
of its capital stock or assets. This Agreement shall inure to the benefit of
and shall be binding upon the successors and permitted assigns of the parties
hereto.
8. CHOICE OF LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the laws of the State of California, excluding
that body of law pertaining to choice of law. If any provision of this
Agreement is found invalid or unenforceable, it will be enforced to the
maximum extent permissible, and the legality and enforceability of the other
provisions of this Agreement will not be affected.
2
9. ENTIRE AGREEMENT; MODIFICATION. This Agreement sets forth the
entire agreement between the parties with respect to the subject matter
hereof, and all prior discussions, representations, proposals, offers and
oral written communications of any nature, including without limitation the
provisions of the Memorandum of Understanding dated as of July 12, 1996,
relating to such subject matter, are entirely superseded hereby and
extinguished by the execution hereof. No modification hereof or waiver of any
right hereunder will be effective unless it is evidenced in a writing
executed by an authorized representative of the party to be charged therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
MACROVISION CORPORATION
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
--------------------------------------
(Printed Name)
CFO
--------------------------------------
(Printed Title)
PACIFIC MEDIA DEVELOPMENT, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx
--------------------------------------
(Printed Name)
President & Secretary
--------------------------------------
(Printed Title)
3
