Investor Rights Agreement - TiVo Inc.
TIVO INC.
NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Ninth Amended and Restated Investor Rights Agreement (the
"Agreement") is entered into as of the 6th day of August, 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, Series H Preferred Stock, Series I Preferred
Stock, Series J 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, Series G
Preferred Stock, Series H Preferred Stock, Series I Preferred Stock and
Registrable Common Stock and possess registration rights, information rights and
other rights pursuant to that certain Eighth Amended and Restated Investor
Rights Agreement dated as of July 21, 1999, between the Company and such
Investors (the "Prior Agreement");
Whereas, the Company proposes to sell and issue up to three million
one hundred twenty three thousand seven hundred eighty nine (3,123,789) shares
of its Series J Preferred Stock pursuant to that certain Series J 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, Series G
Preferred Stock, Series H Preferred Stock, Series I 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:
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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 either pursuant to a registration statement or
Rule 144 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 having an aggregate offering price to the public of at least $10,000,000.
"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 (i) sold by a person to the public
either pursuant to a registration statement or Rule 144, (ii) sold in a private
transaction in which the transferor's rights under Section 2 of this Agreement
are not assigned, or (iii) held by a Holder whose registration rights have
expired under Section 2.7.
"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
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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, Series G Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock and Series J 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 transfers by Sony Corporation of America,
Inc. ("Sony America") to any wholly-owned direct or indirect subsidiary of Sony
Corporation) 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, (E) to an affiliate of
a Holder that does not manufacture or
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distribute customizable personal television systems or services, or (F) in the
case of Sony America, transfers to any wholly-owned direct or indirect
subsidiary or Sony Corporation; provided that in each case the transferee will
be subject to the terms of this Agreement to the same extent as if he or it 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 anticipated 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.
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(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). If a Holder who has
requested inclusion in such registration as provided above does not agree to the
terms of any such underwriting, such Holder shall be excluded therefrom by
written notice from the Company, the underwriter or the Initiating Holders. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall also be withdrawn from such registration. If Registrable
Securities are so withdrawn, or are voluntarily withdrawn, from the registration
and if the number of shares to be included in such registration was previously
reduced as a result of marketing factors pursuant to this Section 2.2(b), then
the Company shall offer to all Holders who have retained rights to include
Registrable Securities in the registration the right to include additional
Registrable Securities in the registration in an aggregate amount equal to the
number of shares so withdrawn, with such shares to 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). 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
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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
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(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.
(d) Registrations effected pursuant to this Section 2.4 shall not be
counted as demands for registration pursuant to Section 2.2 or 2.3.
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
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securities (including Registrable Securities) requesting such registration in
proportion to the number of shares which were ultimately included in such
registration. 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
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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.
(h) Cause all such Registrable Securities registered pursuant hereto
to be listed on each securities exchange or quoted on each quotation system on
which similar securities issued by the Company are then listed or quoted.
(i) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
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
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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. Where a registration requested pursuant to Section 2.2
or Section 2.4 is not completed because 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, the request to initiate such registration shall
not count against the number of requests permitted to be made pursuant to
Section 2.2 or Section 2.4. Where a registration requested pursuant to Section
2.2 or Section 2.4 is completed even though the number of shares or the
anticipated aggregate offering price of the Registrable Securities to be
included in the registration is less than the number of shares or the
anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration, the request initiate such
registration shall count against the number of requests permitted to be made
pursuant to Section 2.2 or Section 2.4.
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
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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 net 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
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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 net 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
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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-1 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 and Certain Stockholders.
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
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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 consistently applied, 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
four hundred eighty thousand (480,000) 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 consistently applied,
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-1, and any
amendment thereto, the Company shall deliver to Showtime one (1) copy of (i)
such Form S-1 or amendment, and (ii) each exhibit as filed with such Form S-1 or
amendment.
(f) As soon as practical after the filing of the Company's
Registration Statement on Form S-1 with the Securities and Exchange Commission
in connection with the Company's Initial Offering, and any amendment thereto,
the Company shall deliver to Sony America one (1) copy of (i) such Form S-1 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
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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. So
long as Walt Disney Company (including its affiliates) does not manufacture or
distribute customizable personal television systems or services, the Company
acknowledges and agrees that Walt Disney Company shall not be considered to be a
competitor of the Company for purposes of this Section 3.2. So long as Sony
Corporation or any of its affiliates manufactures or distributes the Company's
personal television systems or products that enable the Company's personal
television services, the Company acknowledges and agrees that Sony America shall
not be considered to be a competitor of the Company for purposes of this Section
3.2. So long as Sony Corporation (including its affiliates) does not manufacture
or distribute customizable personal television systems or services, the Company
acknowledges and agrees that Sony America shall not be considered to be a
competitor 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.
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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
Larry N. Chapman and any subsequent replacement shall be chosen by such Holders
from a list of three
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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 Series H Preferred Stock Board Seat. The Holders of all of the
outstanding shares of the Company's Series H Preferred Stock hereby agree that
any individual to be designated and elected as a director of the Company
pursuant to Section D.2(c)(v) of Article III of the Company's Amended and
Restated Certificate of Incorporation shall be mutually agreed to by such
Holders and all other directors of the Company.
3.9 Series I Preferred Stock Board Seat. The individual designated and
elected by the holders of Series I Preferred Stock as a director of the Company
pursuant to Section D.2(c)(vi) of Article III of the Company's Amended and
Restated Certificate of Incorporation shall, prior to the closing of the
Company's Initial Offering, be designated as a Class III director (as described
in the Company's Amended and Restated Certificate of Incorporation to be
effective as of the closing of the Initial Offering and attached hereto as
Exhibit B). As soon as practicable after the date of this Agreement, the
Company agrees to take all necessary corporate action to effect the purposes of
this Section 3.9. The Company represents and warrants that the Company's Board
of Directors approved such designation on July 14, 1999, and agrees that it will
take no action in contravention of this Section 3.9. The Holders agree,
severally and not jointly, not to take any action, or cause or direct its
designees on the Company's Board of Directors to take any action, in
contravention of this Section 3.9. In addition to the requirements set forth in
Section 5.6 below, any amendment or waiver of this Section 3.9 shall require the
prior written consent of holders of at least sixty-six and two-thirds percent
(66-2/3%) of the Series I Preferred Stock.
3.10 Future Authorization of Series I Preferred Stock. The Company shall
not authorize, designate or issue any shares of Series I Preferred Stock other
than the 3,315,000 shares currently authorized in the Company's Amended and
Restated Certificate of Incorporation. In addition to the requirements set forth
in Section 5.6 below, any amendment or waiver of this Section 3.10 shall require
the prior written consent of holders of at least sixty-six and two-thirds
percent (66-2/3%) of the Series I Preferred Stock.
3.11 Series J Preferred Stock Board Seat. The individual designated and
elected by the holders of Series J Preferred Stock as a director of the Company
pursuant to Section D.2(c)(vii) of Article III of the Company's Amended and
Restated Certificate of Incorporation shall, prior to the closing of the
Company's Initial Offering, be designated as a Class III director (as described
in the Company's Amended and Restated Certificate of Incorporation to be
effective as of the closing of the Initial Offering and attached hereto as
Exhibit B). As soon as practicable after the date of this Agreement, the
Company agrees to take all necessary corporate action to effect the purposes of
this Section 3.11. The Company represents and warrants that the Company's Board
of Directors approved such designation on July 14, 1999, and agrees that it will
take no action in contravention of this Section 3.11. The Holders agree,
severally and not jointly, not to take any action, or cause or direct its
designees on the Company's Board of Directors to take any action, in
contravention of this Section 3.11. In addition to the
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requirements set forth in Section 5.6 below, any amendment or waiver of this
Section 3.11 shall require the prior written consent of holders of at least
sixty-six and two-thirds percent (66-2/3%) of the Series J Preferred Stock.
3.12 Future Authorization of Series J Preferred Stock. The Company shall
not authorize, designate or issue any shares of Series I Preferred Stock other
than the 3,123,789 shares currently authorized in the Company's Amended and
Restated Certificate of Incorporation. In addition to the requirements set forth
in Section 5.6 below, any amendment or waiver of this Section 3.12 shall require
the prior written consent of holders of at least sixty-six and two-thirds
percent (66-2/3%) of the Series J Preferred Stock.
3.13 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.
3.14 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.
3.15 Board of Directors. As of the date of this Agreement (i) the
authorized size of the Board of Directors of the Company is eleven members, and
(ii) the members of the Board of Directors of the Company include Michael
Ramsay, James Barton, Geoffrey Yang, Stewart Alsop, Randy Komisar, Larry
Chapman, Thomas Rogers, Michael Homer and three vacancies.
3.16 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
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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
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(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; provided, however, that any amendment to the rights of any series of
Series Preferred under this Agreement that disproportionately and adversely
affects or otherwise 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.
20.
<PAGE>
(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 Amendment of Prior Agreement. Effective upon the execution of this
Agreement by the Company and the Holders of a majority of the Registrable
Securities covered by the Prior Agreement, the Prior Agreement shall be null and
void and shall be superseded by the provisions of this Agreement. Each Investor
that was a party to the Prior Agreement hereby waives the right of first refusal
contained in Section 4 of the Prior Agreement with respect to the sale and
issuance of the Series J Preferred Stock and the Common Stock issuable upon
conversion thereof, including any notice requirements related to such rights of
first offer.
5.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
21.
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Company:
TiVo Inc.
/s/ Michael Ramsay
By: ____________________________
Michael Ramsay, President
and Chief Executive Officer
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Investors:
New Enterprise Associates VII, Limited
Partnership
By: NEA Partners VII, Limited Partnership
Its General Partner
/s/ Mark W. Perry
By:________________________________________
Mark W. Perry
General Partner
NEA Presidents Fund, L. P.
By: NEA General Partners, L.P.
By: General Partner
/s/ Mark W. Perry
By:________________________________________
General Partner
NEA Ventures 1997, Limited Partnership
/s/ Susie Greathouse
By:________________________________________
Vice President
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth 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.
/s/ Geoffrey Y. Yang
By:____________________________________________
Geoffrey Y. Yang
General Partner
Institutional Venture Management VII, L.P.
/s/ Geoffrey Y. Yang
By:____________________________________________
Geoffrey Y. Yang
General Partner
IVP Founders Fund I, L.P.
By Its General Partner
Institutional Venture Management VI, L.P.
/s/ Geoffrey Y. Yang
By:____________________________________________
Geoffrey Y. Yang
General Partner
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Michael Ramsay
/s/ Michael Ramsay
_______________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
James Barton
/s/ James Barton
_________________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Robert C. Harris, Jr.
________________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Quattrone Family Trust UTA DTD 9/4/91
Frank P. Quattrone and Denise A.
Foderaro, Trustees
By:________________________________________
Trustee
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Robert Bishop
______________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
R. Randolph Scott
______________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Edward C. MacBeth
__________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Ta-Wei Chien
____________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Chin-Tong Chow
__________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Kurtis G. Heaton
________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Clifford C. Highlund and Vickie L.
Highlund Living Trust
/s/ Clifford C. Highlund
_______________________________________
Clifford C. Highlund, Trustee
/s/ Vickie L. Highlund
_______________________________________
Vickie L. Highlund, Trustee
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
________________________________________
David Allen Lockett
________________________________________
Deborah Marion Lockett
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
__________________________________
Paul M. Newby
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Komisar/Dunn Family Trust
/s/ Randy Komisar
______________________________________
Randy Komisar, Trustee
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Odyssey Capital, LLC
By:__________________________________________
Nicholas Donatiello, Jr., Managing Member
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
1998 Reiss Family trust
/s/ SallyAnn Reiss
______________________________________
SallyAnn Reiss, Trustee
/s/ Peter C. Reiss
______________________________________
Peter C. Reiss, Trustee
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Jean S. Kao
/s/ Jean Sweyton
__________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Randy Komisar
/s/ Randy Komisar
_________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Michael Barton
________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
GC&H Investments
/s/ John L. Cardoza
By:______________________________
John L. Cardoza
Executive Partner
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
John Arrillaga Survivors' Trust
/s/ John Arrillaga
By:__________________________________
John Arrillaga
Trustee
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth 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
/s/ Robert P. Parker
By:________________________________
Robert P. Parker
Name:______________________________
Managing Member
Title:_____________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Comdisco, Inc.
By: _____________________________
Name:____________________________
Title:___________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Steve Humphries
/s/ Steven Humphries/MA McClintock
____________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Fiona Bayne
___________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Ian Forrest
_________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Vulcan Ventures Incorporated
/s/ William D. Savoy
By:_____________________________
William D. Savoy
Name:___________________________
Vice President
Title:__________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Showtime Networks Inc.
/s/ Thomas J. Hayden
By:______________________________
Thomas J. Hayden
Name:____________________________
SVP Strategy & Development
Title:___________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
DIRECTV, Inc.
/s/ Lawrence N. Chapman
By:___________________________________
Lawrence N. Chapman
Name:_________________________________
Executive Vice President
Title:________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
NBC Multimedia, Inc.
/s/ Thomas Rogers
By: __________________________
Thomas Rogers
Name: ________________________
Title: _______________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Philips Corporate External Ventures B.V.
/s/ Jan P. Oosterveld
By: _____________________________
Jan P. Oosterveld
Name:____________________________
Senior Director, Corporate
Title:___________________________
Strategy and Member Group
___________________________
Management Committee
___________________________
Royal Philips Electronics
___________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Advance/Newhouse Programming Partnership
By: Advance Communication Corp. a General
Partner
By: __________________________________
Robert J. Miron, President
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
CBS Corporation
/s/ Fredric G. Reynolds
By:_______________________________
Fredric G. Reynolds
Name:_____________________________
Executive Vice President
Title:____________________________
& Chief Financial Officer
____________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Catalyst Investments, L.L.C.
/s/ Micheal Dean
By:_______________________________
Micheal Dean
Name:_____________________________
Vice President
Title:____________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Comcast Interactive Investments, Inc.
/s/ Judie Djonglay
By:___________________________________
Judie Djonglay
Name:_________________________________
VP
Title:________________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Cox Communications Holdings, Inc.
By:________________________________
Name:______________________________
Title:______________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Discovery Communications, Inc.
/s/ John S. Hendricks
By:___________________________
John S. Hendricks
Name:_________________________
Chairman & CEO
Title:________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
TV Guide Interactive, Inc.
/s/ Toby DeWeese
By:__________________________
Toby DeWeese
Name:________________________
VP Corp. Dev.
Title:_______________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
Liberty Media Corporation
/s/ Charles Y. Tanabe
By:__________________________
Charles Y. Tanabe
Name:________________________
Senior Vice President
Title:_______________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
In Witness Whereof, the parties hereto have executed this Ninth Amended and
Restated Investor Rights Agreement as of the date set forth in the first
paragraph hereof.
America Online, Inc.
/s/ Ronald M. Peck, Jr.
By:___________________________
Ronald M. Peck, Jr.
Name:_________________________
VP/AOL Investments
Title:________________________
SIGNATURE PAGE TO NINTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
<PAGE>
Exhibit A
INVESTOR RIGHTS AGREEMENT
SCHEDULE OF INVESTORS
<TABLE>
<CAPTION>
Series A Preferred Stock
Aggregate Purchase
Name Shares Price
----------------------------------- ----------------------------- --------------------------
<S> <C> <C>
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
Michael Ramsay 666,667 $ 400,000.20
(holds 656,667 after
transfers described below)
James Barton 166,667 $ 100,000.20
John Arillaga Survivors' Trust 41,667 $ 25,000.20
Robert C. Harris, Jr. 83,333 $ 49,999.80
GC&H Investments 41,666 $ 24,999.60
Fiona M. Bayne 5,000 Transfer from
Michael Ramsay
Ian Forrest 5,000 Transfer from
Michael Ramsay
Total: 5,000,000 $ 3,000,000
</TABLE>
<PAGE>
Exhibit A (Cont.)
SCHEDULE OF INVESTORS
Series B Preferred Stock
<TABLE>
<CAPTION>
Name Shares Aggregate Purchase Price
------------------------------------------------- --------------- --------------------------
<S> <C> <C>
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
Robert Bishop 119,048 $ 150,000.48
Edward C. MacBeth 59,524 $ 75,000.24
Ta-Wei Chien 59,524 $ 75,000.24
Robert C. Harris, Jr. 39,683 $ 50,000.58
Quattrone Family Trust UTA DTD 9/4/91 39,683 $ 50,000.58
R. Randolph Scott 39,683 $ 50,000.58
Michael Barton 39,683 $ 50,000.58
Randy Komisar 24,800 $ 31,248.00
Chin-Tong Chow 19,841 $ 24,999.66
Jean S. Kao 19,841 $ 24,999.66
========= =============
Subtotal: 3,635,914 $4,581,251.64
Third Closing: July 27, 1998
Edward C. MacBeth 25,000 (all 31,500
transferred to
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Steve Humphries)
Steve Humphries 25,000 Transferred from
Edward C. MacBeth
25,000 $ 31,500.00
========= =============
Total: 3,660,914 $4,612,751.64
</TABLE>
<PAGE>
Exhibit A (Cont.)
SCHEDULE OF INVESTORS
Series C Preferred Stock
<TABLE>
<CAPTION>
Name Shares Aggregate Purchase Price
--------------------------------------------- ------------ ----------------------------
<S> <C> <C>
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
SallyAnn Reiss and Peter Reiss as Trustees of
the 1998 Reiss family Trust 13,513 $ 24,999.05
Clifford C. Highlund & Vickie L. Highlund as
Trustees for the Clifford C. Highlund Living
Trust, dated December 27, 1994 13,513 $ 24,999.05
Paul M. Newby 13,513 $ 24,999.05
David Allen Lockett and Deborah Marion 13,513 $ 24,999.05
Lockett
Kurtis G. Heaton 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
</TABLE>
<PAGE>
Exhibit A (Cont.)
SCHEDULE OF INVESTORS
Series D Preferred Stock
<TABLE>
<CAPTION>
Name Shares Aggregate Purchase Price
--------------------------------------- ---------------- ----------------------------
<S> <C> <C>
Vulcan Ventures Incorporated 1,358,695 $4,999,997.60
Total: 1,358,695 $4,999,997.60
</TABLE>
<PAGE>
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES E PREFERRED STOCK
<TABLE>
<CAPTION>
Name Shares Aggregate Purchase Price
-------------------------- --------------- ---------------------------
<S> <C> <C>
Showtime Networks Inc. 270,270 1,999,998
Total: 270,270 1,999,998
</TABLE>
<PAGE>
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES F PREFERRED STOCK
<TABLE>
<CAPTION>
Name Shares Aggregate Purchase Price
-------------------------- ------------- ----------------------------
<S> <C> <C>
DIRECTV, Inc. 405,405 $2,999,997
Total: 405,405 $2,999,997
</TABLE>
<PAGE>
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES G PREFERRED STOCK
<TABLE>
<CAPTION>
Name Shares Aggregate Purchase Price
-------------------------- ---------------- ----------------------------
<S> <C> <C>
NBC Multimedia, Inc. 1,013,513 $7,499,996.20
Total: 1,013,513 $7,499,996.20
</TABLE>
<PAGE>
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES H PREFERRED STOCK
<TABLE>
<CAPTION>
Name Shares Consideration
-------------------------- ----------------- ----------------------
<S> <C> <C>
Philips Corporate External
Ventures B.V. 1,351,351 $9,999,997.40
Total: 1,351,351 $9,999,997.40
</TABLE>
9.
<PAGE>
EXHIBIT A (CONT.)
SCHEDULE OF INVESTORS
SERIES I PREFERRED STOCK
<TABLE>
<CAPTION>
Name Shares Consideration
-------------------------- ----------------- ----------------------
<S> <C> <C>
Advance/Newhouse Programming
Partnership 240,153 $ 2,499,992.73
CBS Corporation 240,153 $ 2,499,992.73
Catalyst Investments, L.L.C. 720,461 $ 7,499,999.01
Comcast Interactive
Investments, Inc. 480,307 $ 4,999,995.87
Cox Communications Holdings,
Inc. 240,153 $ 2,499,992.73
Discovery Communications,
Inc. 720,461 $ 7,499,999.01
TV Guide Interactive, Inc. 240,153 $ 2,499,992.73
Liberty Media Corporation 240,153 $ 2,499,992.73
Total: 3,121,994 $32,499,957.54
</TABLE>
10.
<PAGE>
Exhibit A (cont.)
SCHEDULE OF INVESTORS
Series J Preferred Stock
<TABLE>
<CAPTION>
Name Shares Consideration
---------------------------------- --------------------- ---------------------------
<S> <C> <C>
First Closing: August 6, 1999
America Online, Inc. Up to 480,307, but at Up to $4,999,995.87, but at
least 288,184 least $2,999,995.44
Second Closing: __________, 1999
</TABLE>
<PAGE>
Exhibit A (cont.)
SCHEDULE OF INVESTORS
Registrable Common Stock
<TABLE>
<CAPTION>
Name Shares Consideration
---------------------------------- --------------------- ----------------------------
<S> <C> <C>
DIRECTV, Inc. 2,981,196 Services, support and
promissory note as set forth
in the Marketing Agreement
Total: 2,981,196 Services, support and
promissory note as set forth
in the Marketing Agreement
</TABLE>
<PAGE>
Exhibit B
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TIVO INC.
I.
The name of this corporation is TiVo Inc.
II.
The address of the registered office of the Corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent, DE 19901. The
name of the registered agent of the Corporation in the State of Delaware at such
address is Amerisearch Corporate Services Inc.
III.
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is seventy seven million
(77,000,000) shares. Seventy five million (75,000,000) shares shall be Common
Stock, each having a par value of one tenth of one cent ($.001). Two million
(2,000,000) shares shall be Preferred Stock, each having a par value of one
tenth of one cent ($.001).
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate (a
"Preferred Stock Designation") pursuant to the Delaware General Corporation Law,
to fix or alter from time to time the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or
restrictions of any wholly unissued series of Preferred Stock, and to establish
from time to time the number of shares constituting any such series or any of
them; and to increase or decrease the number of shares of any series subsequent
to the issuance of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall
be decreased in accordance with the foregoing sentence, the shares constituting
such decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
V.
A. For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation,
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of its directors and of its stockholders or any class thereof, as the case may
be, it is further provided that:
(1) The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
(2) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, and to any
restrictions or limitations of applicable law, following the closing of the
initial public offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended, covering the offer and sale of Common
Stock to the public (the "Initial Public Offering"), the directors shall be
divided into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first annual
meeting of stockholders following the closing of the Initial Public Offering,
the term of office of the Class I directors shall expire and Class I directors
shall be elected for a full term of three years. At the second annual meeting of
stockholders following the Closing of the Initial Public Offering, the term of
office of the Class II directors shall expire and Class II directors shall be
elected for a full term of three years. At the third annual meeting of
stockholders following the Closing of the Initial Public Offering, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(3) Subject to the rights of the holders of any series of Preferred
Stock, the Board of Directors or any individual director may be removed from
office at any time with cause by the affirmative vote of the holders of a
majority of the voting power of all the then-outstanding shares of voting stock
of the Corporation, entitled to vote at an election of directors (the "Voting
Stock"). The Board of Directors or any individual director may not be removed
from office without cause.
(4) Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full
14.
<PAGE>
term of the director for which the vacancy was created or occurred and until
such director's successor shall have been elected and qualified.
B. (1) Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws
may be altered or amended or new Bylaws adopted by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then-outstanding shares of the Voting Stock. The Board of Directors shall
also have the power to adopt, amend, or repeal Bylaws.
(2) The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
(3) There shall be no cumulative voting by the stockholder's of this
Corporation.
(4) No action shall be taken by the stockholders of the Corporation
except at an annual or special meeting of stockholders called in accordance with
the Bylaws and following the closing of the Initial Public Offering no action
shall be taken by the stockholders by written consent.
(5) Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
VI.
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
15.
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B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the voting stock required by law, or this
Certificate of Incorporation, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the voting stock, voting together as a single class,
shall be required to alter, amend or repeal Articles V, VI and VII.
16.
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Table of Contents
<TABLE>
<CAPTION>
Page
<S> <C>
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............................. 6
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........................ 13
2.13 Rule 144 Reporting.................................. 13
Section 3.Covenants of the Company and Certain Stockholders.. 13
3.1 Basic Financial Information and Reporting........... 13
3.2 Inspection Rights................................... 15
3.3 Confidentiality of Records.......................... 15
3.4 Strategic Value I, L.P. Board Observer.............. 15
3.5 Vulcan Ventures Incorporated Board Observer......... 16
3.6 Showtime Board Observer............................. 16
3.7 DIRECTV Board Seat.................................. 16
3.8 Series H Preferred Stock Board Seat................. 17
3.9 Series I Preferred Stock Board Seat................. 17
3.10 Future Authorization of Series I Preferred Stock.... 17
3.11 Series J Preferred Stock Board Seat................. 17
3.12 Future Authorization of Series J Preferred Stock.... 18
3.13 Reservation of Common Stock......................... 18
3.14 Proprietary Information and Inventions Agreement.... 18
</TABLE>
i.
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Table of Contents
(Continued)
<TABLE>
<CAPTION>
Page
<S> <C>
3.15 Board of Directors.................................. 18
3.16 Termination of Covenants............................ 18
Section 4.Rights of First Refusal............................ 18
4.1 Subsequent Offerings................................ 18
4.2 Exercise of Rights.................................. 19
4.3 Issuance of Equity Securities to Other Persons...... 19
4.4 Termination of Rights of First Refusal.............. 19
4.5 Transfer of Rights of First Refusal................. 19
4.6 Excluded Securities................................. 19
Section 5.Miscellaneous...................................... 20
5.1 Governing Law....................................... 20
5.2 Survival............................................ 20
5.3 Successors and Assigns.............................. 20
5.4 Entire Agreement.................................... 20
5.5 Severability........................................ 20
5.6 Amendment and Waiver................................ 20
5.7 Delays or Omissions................................. 21
5.8 Notices............................................. 21
5.9 Titles and Subtitles................................ 21
5.10 Amendment of Prior Agreement........................ 21
5.11 Counterparts........................................ 22
</TABLE>
ii.