The foregoing description of the Credit Agreement, the Guaranty and the Security Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement, the Guaranty and the Security Agreement, copies of which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.
Indemnification Agreement
Effective upon the completion of the Mergers, Xperi Holding entered into indemnification agreements (the “Indemnification Agreements”) with Xperi Holdings’ directors and officers. With specified exceptions, these Indemnification Agreements provide for indemnification against all liability and loss suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by any of these individuals in any action, suit or proceeding, to the fullest extent permitted by applicable law. The foregoing description of the Indemnification Agreements does not purport to be complete and is qualified in its entirety by reference to the form of Indemnification Agreement filed as Exhibit 10.4 to this Current Report and incorporated by reference into this Item 1.01.
Second Supplemental Indenture
In connection with the consummation of the TiVo Merger (as defined in Item 8.01), TiVo Corporation (“TiVo”), TiVo Solutions Inc. (“TiVo Solutions”) and Wells Fargo Bank, National Association (the “Convertible Notes Trustee”), entered into the Second Supplemental Indenture (the “Second Supplemental Indenture”), dated as of June 1, 2020, which supplements the Indenture, dated as of September 22, 2014 (the “Base Indenture”), between TiVo Solutions and the Convertible Notes Trustee, as supplemented by the First Supplemental Indenture, dated as of September 7, 2016 (the “First Supplemental Indenture”), between TiVo Solutions, TiVo, and the Convertible Notes Trustee (the Base Indenture, as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture, the “Indenture”), governing the 2% Convertible Senior Notes due 2021 (the “Convertible Notes”) issued by TiVo Solutions (f/k/a TiVo Inc.) in September 2014, of which $48,000 aggregate principal amount was outstanding on June 1, 2020.
The Second Supplemental Indenture provides that, from and after the effective time of the TiVo Merger, each holder of $1,000 principal amount of the Convertible Notes will have a right to convert such principal amount of the Convertible Notes into the New Reference Property (as defined in the Second Supplemental Indenture) during the periods of time and as provided in the Indenture, subject to TiVo Solutions’ right to elect to pay cash upon such a conversion as provided in the Indenture.
The foregoing descriptions of the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture, which are included as Exhibits 4.1, 4.2 and 4.3, respectively, hereto and incorporated into this Item 1.01 by reference.
| Item 1.02. | Termination of a Material Definitive Agreement. |
The information set forth in Item 1.01 of this Current Report is incorporated herein by reference.
In connection with the consummation of the Mergers, on June 1, 2020, (i) Xperi will have repaid all of the outstanding obligations in respect of principal, interest, fees and expenses under the Credit Agreement, dated as of December 1, 2016 (as amended by Amendment No. 1 to Credit Agreement, dated as of January 23, 2018, the “Existing Xperi Credit Agreement”), among Xperi, the lenders party thereto and Royal Bank of Canada, as administrative agent and collateral agent, (ii) TiVo will have repaid all of the outstanding obligations in respect of principal, interest, fees, premium and expenses under the Credit and Guaranty Agreement, dated as of November 22, 2019 (the “Existing TiVo Term Loan Credit Agreement”), among TiVo, certain subsidiaries of TiVo, the lenders party thereto and HPS Investment Partners, LLC, as administrative agent and collateral agent, and (iii) TiVo will have repaid all of the outstanding obligations in respect of principal, interest, fees and expenses under the Credit and Guaranty Agreement, dated as of November 22, 2019 (the “Existing TiVo ABL Credit Agreement”), among TiVo, certain subsidiaries of TiVo, the lenders and issuing banks party thereto, Morgan Stanley Senior Funding, Inc., as administrative agent and collateral agent, and Wells Fargo Bank, National Association, asco-collateral agent, and terminated all commitments under the Existing TiVo ABL Credit Agreement. The Existing Xperi Credit Agreement, Existing TiVo Term Loan Credit Agreement and Existing TiVo ABL Credit Agreement will have been terminated effective June 1, 2020.
| Item 2.01. | Completion of Acquisition or Disposition of Assets. |
Upon completion of the Xperi Merger, each share of common stock, par value $0.001 per share, of Xperi (the “Xperi Common Stock”) (excluding any shares of Xperi Common Stock that were held in treasury immediately prior to the effective time of the Xperi Merger, which were automatically canceled and retired for no consideration) was converted into the right to receive one fully paid andnon-assessable share of common stock, par value $0.001 per share, of Xperi Holding (the “Xperi Holding Common Stock”). Upon completion of the TiVo Merger, (i) each share of common stock, par value $0.001 per share, of TiVo (the “TiVo Common Stock”) (excluding any shares of TiVo Common Stock that were held in treasury immediately prior to the effective time of the TiVo Merger, which were automatically canceled and retired for no consideration) was converted into the right to receive 0.455 fully paid andnon-assessable shares of Xperi Holding Common Stock, in addition to cash in lieu of any fractional shares of Xperi Holding Common Stock.
As provided in the Merger Agreement, at the effective time of the Mergers, (i) all options, restricted shares, restricted stock unit awards and other equity awards relating to shares of Xperi Common Stock outstanding immediately prior to the effective time of the Mergers were generally automatically converted into options, restricted shares, restricted stock unit awards and other equity awards, respectively, relating to shares of Xperi Holding Common Stock after giving effect to appropriate adjustments to reflect the Mergers and otherwise generally on the same terms and conditions as applied under the applicable plans and award agreements immediately prior to the effective time of the Mergers, and (ii) all options, restricted shares, restricted stock unit awards and other equity awards relating to shares of TiVo Common Stock that were outstanding immediately prior to the effective time of the Mergers were generally automatically converted into options, restricted stock unit awards, restricted shares and other equity awards, respectively, relating to shares of Xperi Holding Common Stock after giving effect to appropriate adjustments to reflect the Mergers and otherwise generally on the same terms and conditions as applied under the applicable plans and award agreements immediately prior to the effective time of the Mergers.
The issuance of shares of Xperi Holding Common Stock in connection with the Mergers, as described above, was registered under the Securities Act of 1933, as amended, pursuant to a registration statement onFormS-4 (FileNo. 333-236492), filed by Xperi Holding with the Securities and Exchange Commission (the “SEC”) and declared effective on April 22,
