Funds Release Agreement - TiVo Inc., America Online Inc. and BNY Western Trust Co.
FUNDS RELEASE AGREEMENT
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This FUNDS RELEASE AGREEMENT, dated as of April 29, 2002 (this
"Agreement"), is made by and among TiVo Inc., a Delaware corporation (the
"Company"), America Online, Inc., a Delaware corporation (the "Purchaser"), and
BNY Western Trust Company, as successor in interest to U.S. Trust Company,
National Association (the "Escrow Agent").
W I T N E S S E T H:
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WHEREAS, the Company and the Purchaser are parties to the Investment
Agreement, dated as of June 9, 2000, as amended by the First Amendment, dated as
of September 11, 2000, the Second Amendment, dated as of January 30, 2001, the
Third Amendment, dated as of March 28, 2002, and the Fourth Amendment, dated as
of April 9, 2002 (together, the "Investment Agreement"), and the Company, the
Purchaser and the Escrow Agent are parties to the Escrow Agreement, dated as of
September 11, 2000, as amended by the First Amendment, dated as of January 30,
2001 (together, the "Escrow Agreement");
WHEREAS, pursuant to the Investment Agreement and the Escrow Agreement,
certain funds have been deposited with the Escrow Agent which, together with
interest earned thereon, equals $51,855,377.13 as of the date of this Agreement
(together with any additional funds added to such amount, the "Escrowed Funds");
WHEREAS, pursuant to the terms of Section 1.4(b) of the Investment
Agreement, as of December 31, 2001, the Purchaser has the right to exercise the
Put Option (as defined in the Investment Agreement) and is hereby exercising the
Put Option;
WHEREAS, in connection therewith, the Company and the Purchaser desire to
release the Escrowed Funds to the Purchaser upon the terms of the Investment
Agreement and as set forth herein, and further desire to terminate the Escrow
Agreement and the Investment Agreement as set forth herein;
WHEREAS, in connection with the exercise of the Put Option, the Purchaser
and the Company desire that the Purchaser waive the Purchaser's rights to
receive certain dividends payable on the preferred stock, par value $.001 per
share (the "Preferred Stock"), as set forth in the Company's Amended and
Restated Certificate of Incorporation (the "Restated Certificate");
WHEREAS, in connection with the exercise of the Put Option, the Purchaser
and the Company desire any Preferred Shares (as defined in the Investment
Agreement) held by the Purchaser to be converted on September 13, 2002 into
shares of the Company's common stock, par value $.001 per share (the "Common
Stock"), pursuant to the terms of such Preferred Shares as set forth in the
Restated Certificate;
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WHEREAS, the Company and the Purchaser are parties to the Stockholders and
Registration Rights Agreement, dated as of June 9, 2000 (the "Stockholders
Agreement"), and pursuant to Section 5.2 of the Stockholders Agreement, the
Purchaser has certain piggy-back registration rights as set forth therein;
WHEREAS, the Company and the Purchaser desire to waive such piggy-back
registration rights with respect to certain registration statements as set forth
herein;
WHEREAS, the Company and the Purchaser desire to terminate certain
provisions of Article II of the Stockholders Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
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the meanings assigned to them in the Investment Agreement.
2. Repurchase; Release of Escrowed Funds.
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(a) Pursuant to Section 1.4(b) of the Investment Agreement, the
Purchaser has elected to exercise the Put Option, and as a result of such
exercise, on April 30, 2002, the Company shall repurchase 1,600,000
Preferred Shares from the Purchaser (such exercise and repurchase referred
to herein as the "Repurchase") for an aggregate repurchase price of
forty-eight million dollars ($48,000,000) (the "Aggregate Repurchase
Price"), which represents (i) the total amount of Escrowed Funds held in
the Escrow Account through the date hereof, less (ii) three million eight
hundred fifty-five thousand three hundred seventy-seven dollars and
thirteen cents ($3,855,377.13) which represents the interest earned on the
Escrowed Funds (together with any additional interest earned on the
Escrowed Funds subsequent to the date of this Agreement, the "Accrued
Interest Amount").
(b) In connection with the Repurchase and pursuant to Section 1.4(b)
of the Investment Agreement, on April 30, 2002, the Purchaser shall deliver
to Latham & Watkins, counsel to the Company, a facsimile copy of the
certificate representing the Preferred Shares to be repurchased, with the
original of such certificate being mailed by overnight courier for delivery
to Latham & Watkins on May 1, 2002, and the Company and the Purchaser
hereby irrevocably direct the Escrow Agent to, and the Escrow Agent shall,
deliver on April 30, 2002, cash in the amount of forty-four million dollars
($44,000,000), which represents the Aggregate Repurchase Price less four
million dollars ($4,000,000) to be paid by the Purchaser to the Company as
payment for certain development work under the Development and Distribution
Agreement, dated as of the date hereof, between the Company and the
Purchaser (the "Development Amount"), by wire transfer of immediately
available funds to the following account of the Purchaser:
J.P. Morgan Chase
ABA #021 000 021
Account #323-070752
New York, N.Y.
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The original and facsimile copies of the certificate representing the
Preferred Shares shall be held in escrow by Latham & Watkins until the
distribution of the Escrowed Funds as provided herein, and thereafter
Latham & Watkins shall release such certificates to the Company for
cancellation. In the event that the original certificate for the Preferred
Shares has not been received by Latham & Watkins at the time of the release
of the Escrowed Funds as provided herein, the Company may rely on the
facsimile copy of such certificate until the original is received by Latham
& Watkins.
(c) In connection with the Repurchase, on April 30, 2002, the Company
shall deliver to Simpson Thacher & Bartlett, counsel to the Purchaser, a
facsimile copy of one or more certificates, in the name of the Purchaser,
representing the remaining 1,111,861 Preferred Shares not subject to the
Repurchase, free and clear of all liens and encumbrances (the "Remaining
Shares"). The Company shall send the original certificate(s) representing
the Remaining Shares to Simpson Thacher & Bartlett by overnight courier for
delivery on May 1, 2002. The original and facsimile copies of the
certificate(s) representing the remaining shares shall be held in escrow by
Simpson Thacher & Bartlett until the distribution of the Escrowed Funds as
provided herein, and thereafter Simpson Thacher & Bartlett shall release
such certificate(s) to the Purchaser. In the event that the original
certificate(s) for the Remaining Shares have not been received by Simpson
Thacher & Bartlett at the time of the release of the Escrowed Funds as
provided herein, the Purchaser may rely on the facsimile copy of such
certificate(s) until the original(s) are received by Simpson Thacher &
Bartlett.
(d) The Company and the Purchaser hereby irrevocably direct the Escrow
Agent to, and the Escrow Agent shall, deliver on April 30, 2002, cash in
the amount of seven million eight hundred fifty-five thousand three hundred
seventy-seven dollars and thirteen cents ($7,855,377.13), which represents
the Development Amount and the Accrued Interest Amount, by wire transfer of
immediately available funds to the following account of the Company:
To: SIL VLY BK SJ
Routing & Transit #: 121140399
For credit of: TiVo checking account
Credit account number: 3300224342
By order of: America Online, Inc.
(e) In addition, the Company and the Purchaser hereby irrevocably
direct the Escrow Agent to, and the Escrow Agent shall, deliver cash in the
amount of any additional interest earned on the Escrowed Funds prior to
April 30, 2002, but credited to the Escrow Account subsequent to April 30,
2002, to the account of the Company specified in Section 2(d) above as soon
as practicable after such funds are credited to the Escrow Account.
(f) The Company, the Purchaser and the Escrow Agent each acknowledge
that this Agreement constitutes written notice, as required by Section
1.4(b) of the Investment Agreement, of the Purchaser's intention to
exercise the Put Option and release instructions in accordance with the
Escrow Agreement.
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(g) Effective upon the distribution of the Escrowed Funds as provided
herein, each of the Purchaser and the Company releases and discharges the
Escrow Agent from any and all claims, liens, charges and other rights under
the Escrow Agreement.
3. Conversion of the Remaining Preferred Shares. The Purchaser hereby
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irrevocably agrees to convert on September 13, 2002 (the "Conversion") all
shares of Preferred Stock then held by the Purchaser into shares of Common Stock
(the "Conversion Shares") pursuant to and in accordance with Article III,
Section D(4)(d) of the Restated Certificate.
4. Waiver of Dividend Rights to the Terms of the Preferred Stock. Pursuant
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to Article III, Section D(1)(e) of the Restated Certificate, the Purchaser, as
the holder of all the outstanding shares of Preferred Stock, hereby elects to
irrevocably waive the Company's obligation to pay dividends on any shares of
Preferred Stock pursuant to Article III, Sections D(1)(a) through (d) of the
Restated Certificate effective April 1, 2002 and further waives, effective April
1, 2002, the accrual of any such dividends, including, without limitation, for
purposes of calculating the conversion rate of the Preferred Stock pursuant to
Article III, Section D(4)(b) of the Restated Certificate. The right of the
Preferred Stock to participate in dividends or distributions paid on the Common
Stock, contained in Article III, Section D(1)(f) of the Restated Certificate,
shall not be affected.
5. Termination and Release.
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(a) Pursuant to Section 5 of Article I of the Escrow Agreement, upon
the release by the Escrow Agent of the Escrowed Funds to the Purchaser and
the Company in accordance with the provisions hereof, the Escrow Agreement
shall terminate, and there shall be no remaining rights or obligations of
the Company or the Purchaser thereunder.
(b) Pursuant to Section 7.1 of the Investment Agreement, the parties
hereby mutually agree that upon the release by the Escrow Agent of the
Escrowed Funds to the Purchaser and the Company in accordance with the
provisions hereof, the Investment Agreement shall terminate, and, except as
set forth in Section 5(c) below, there shall be no remaining rights or
obligations of the Company or the Purchaser thereunder.
(c) Effective upon the termination of the Investment Agreement and the
Escrow Agreement, each party to the Investment Agreement and the Escrow
Agreement, on behalf of itself and each of its respective successors,
assigns, affiliates and representatives, hereby forever releases and
discharges each other from any and all liabilities, claims, liens, charges
and other rights and obligations (each, a "Claim") with respect to the
Escrowed Funds, the Escrow Agreement and the Investment Agreement, except
in the case of the Investment Agreement, for any Claim for a breach of any
of the representations and warranties contained therein. The Purchaser and
the Company hereby mutually agree that the release of the Escrowed Funds to
the Purchaser and the Company in accordance with the provisions hereof
satisfies all rights and obligations of the Purchaser and the Company with
respect to the Escrowed Funds under the Investment Agreement and the Escrow
Agreement.
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6. Waiver of Registration Rights.
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(a) The Purchaser, as to all of the Registrable Securities (as defined
in the Stockholders Agreement) owned by the Purchaser, hereby (i) waives
all piggy-back registration rights that it may be entitled to pursuant to
Section 5.2 of the Stockholders Agreement in connection with the filing of
any registration statement with the Securities and Exchange Commission that
relates solely to the issuance or resale of Common Stock of the Company
issued for consideration other than cash or Cash Equivalents in connection
with any bona fide arm's length commercial agreement approved by the Board
of Directors of the Company or an authorized committee of the Board of
Directors of the Company (each such registration statement, a "Commercial
Registration Statement"), and (ii) waives the Company's obligation to
comply with all notice requirements under Section 5.2 of the Stockholders
Agreement in connection with any Commercial Registration Statement. For
purposes of this Section 6(a), the term "Cash Equivalents" shall mean (i)
marketable direct obligations issued by, or unconditionally guaranteed by,
the United States government or any agency thereof; (ii) certificates of
deposit, bankers' acceptances, time deposits, eurodollar time deposits or
overnight bank deposits issued by, or repurchase obligations of, any
commercial bank organized under the laws of the United States of America or
any state thereof; (iii) commercial paper instruments; (iv) securities
issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government; and (v)
shares of money market, mutual or similar funds.
(b) In addition to the foregoing, the Purchaser and the Company hereby
amend clause (ii) of the last sentence of the definition of "Registrable
Securities" in the Stockholders Agreement to read in its entirety:
"(ii) (x) such securities shall have been distributed to the
public or (y) such securities are otherwise saleable pursuant to Rule
144(k) under the Securities Act and, solely with respect to such
securities held by AOL or its Affiliates, the Company and AOL
reasonably agree that AOL or such Affiliate has not been an Affiliate
of the Company for at least three (3) months; or"
(c) The waivers set forth in this Section 6 shall not constitute a
waiver of any of the Purchaser's other rights pursuant to the Stockholders
Agreement or any other agreement between the Purchaser and the Company.
7. Termination of Certain Provisions of the Stockholders Agreement. Upon
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release by the Escrow Agent of the Escrowed Funds to the Purchaser and the
Company in accordance with the provisions hereof, Article II of the Stockholders
Agreement shall be terminated and shall be of no further force or effect.
8. Transfers. Subsequent to the termination of the Standstill Period (as
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defined in the Stockholders Agreement) and until the first date on which the
Purchaser does not beneficially own in excess of 4.0% of the outstanding shares
of Common Stock (as calculated pursuant to Rule 13d-3 under the Exchange Act):
(a) the Purchaser shall, prior to any block sale on a securities
exchange or automated quotation system in excess of 500,000 shares of
Common Stock (or securities
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convertible into, or exchangeable or exercisable for, in excess of 500,000
shares of Common Stock) at a discount (the "Transfer Price Limit") in
excess of 6.0% of the average of the daily volume weighted average price of
the Common Stock over the five trading days prior to the date of such
proposed block sale deliver to the Company written notice (the "Transfer
Notice"), which notice shall state the number of Equity Securities proposed
to be transferred (the "Transfer Securities"), the intended method of
transfer and the proposed minimum price at which such Common Stock will be
transferred;
(b) for a period of three (3) business days following receipt of the
Transfer Notice, the Company shall have the option, but not the obligation,
by written notice to the Purchaser (the "Option Notice"), to require the
Purchaser to effect the Transfer of such Transfer Securities through an
underwritten, SEC registered, secondary offering (a "Registered Offering").
In the event the Company exercises its option pursuant to this Section
8(b), the Company and the Purchaser shall have such rights and obligations
with respect to such offering as if the Transfer Securities were
"Registrable Securities" pursuant to the terms of the Stockholders
Agreement and the Transfer Notice was an otherwise permissible request for
an underwritten registration pursuant to Section 5.1 of the Stockholders
Agreement; provided that (i) at the closing of a Registered Offering, the
Company shall pay to the Purchaser an amount in cash equal to the amount by
which the price at which such Transfer Securities are sold in the
Registered Offering (less any underwriting discounts or commissions and any
out-of-pocket fees and expenses incurred or paid by the Purchaser which
would not have been incurred or paid in the block sale identified in the
Transfer Notice) is less than the Transfer Price Limit, if at all, and (ii)
any such Registered Offering shall not reduce the number of registration
requests to which the Purchaser is entitled pursuant to Section 5.1 of the
Stockholders Agreement;
(c) notwithstanding the foregoing, this Section 8 shall:
(i) cease to apply to any block sale of Transfer Securities (x)
if the Company does not exercise its option pursuant to and in
accordance with Section 8(b) or (y) if the Company exercises its
option pursuant to and in accordance with Section 8(b), and the
Registered Offering has not been completed within either (A)
forty-five (45) days of delivery of the Option Notice by the Company
to the Purchaser in the event the Securities and Exchange Commission
notifies the Company that it will not review the registration
statement filed pursuant to this Section 8 or (B) ninety (90) days of
delivery of the Option Notice by the Company to the Purchaser in the
event the Securities and Exchange Commission notifies the Company that
it will review the registration statement filed pursuant to this
Section 8; and
(ii) not apply to transactions (including swaps, options, puts,
calls, cashless collars, forward contracts, prepaid forward contracts,
futures contracts, lending or borrowing of shares) that are entered
into solely for bona fide hedging purposes.
9. Transferees Bound. In addition to any limitations on transfer or other
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transfer restrictions contained in the Stockholders Agreement or any other
agreement between the Company and the Purchaser, the Purchaser agrees:
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(a) not to Transfer (as defined in the Stockholders Agreement) any
shares of Preferred Stock unless such Transferee agrees to be bound by the
provisions of Sections 3, 4 and 8 of this Agreement;
(b) not to Transfer any Equity Securities (including shares of
Preferred Stock) and simultaneously transfer any registration rights with
respect to such Equity Securities pursuant to the Stockholders Agreement
unless such Transferee agrees to be bound by the provisions of Section 6 of
this Agreement; and
(c) not to Transfer any Equity Securities (including shares of
Preferred Stock) to any Affiliate (as defined in the Stockholders
Agreement) of the Purchaser unless such Transferee agrees to be bound by
the provisions of Section 8 of this Agreement.
10. Confidentiality. Before the Company or any of its affiliates releases
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any press release or other statement or makes any other disclosure concerning
the exercise of the Put Option, this Agreement or the matters contemplated
hereby (excluding any disclosure contained in any filing of the Company with the
SEC), the Company shall cooperate with the Purchaser, furnish drafts of all such
statements or disclosure to the Purchaser, and provide the Purchaser a
reasonable opportunity to review and comment upon any such statement or
disclosure. The Company shall reflect all reasonable comments and requests of
the Purchaser in such statement or disclosure prior to the release thereof, and
the Purchaser agrees to review and provide comments on any such statement or
disclosure promptly following receipt thereof. The Company shall not release or
make or permit the release or making of any such statement or disclosure unless
it has first complied with the foregoing.
11. Counterparts. This Agreement may be executed simultaneously or in any
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number of counterparts, each of which shall be deemed to be an original, and all
of which shall constitute one and the same instrument.
12. Governing Law. This Agreement shall be governed in all respects by the
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laws of the State of New York as such laws are applied to agreements to be
performed entirely in such state.
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IN WITNESS WHEREOF, each of the undersigned has executed this Funds Release
Agreement dated as of the date first written above.
TIVO INC.
By: /s/ David H. Courtney
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Name: David H. Courtney
Title: Executive Vice President
AMERICA ONLINE, INC.
By: /s/ Lynda Clarizio
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Name: Lynda Clarizio
Title: Senior Vice President
Acknowledged and Agreed:
BNY WESTERN TRUST COMPANY, as
successor in interest to U.S. Trust Company,
National Association
By: /s/ J. Koratz
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Name: J. Koratz
Title: Assistant Vice President