EXHIBIT 10.1
SECOND AMENDMENT TO
INVESTMENT AGREEMENT
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This Second Amendment, dated as of January 30, 2001 (this "Second
Amendment"), to the Investment Agreement, dated as of June 9, 2000, as amended
by the First Amendment, dated as of September 11, 2000 (together, the
"Investment Agreement"), is made by and between TiVo Inc., a Delaware
corporation (the "Company"), and America Online, Inc., a Delaware corporation
(the "Purchaser"). Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Investment Agreement.
W I T N E S S E T H:
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WHEREAS, Section 7.8 of the Investment Agreement provides for the amendment
of the Investment Agreement upon the written consent of the Company and the
Purchaser;
WHEREAS, Section 1.4 of the Investment Agreement provides for a certain
portion of the Escrowed Funds to be designated as Earmarked Funds to be used
exclusively in accordance with Section 8.2 of the Product Integration and
Marketing Agreement (the "Commercial Agreement");
WHEREAS, the Purchaser has agreed to release a certain portion of the
Escrowed Funds to the Company upon terms and conditions agreed to by the
Purchaser and the Company;
WHEREAS, the Company has issued Warrants pursuant to Section 1.3 of the
Investment Agreement and, in connection with the release of Escrowed Funds, the
Company and the Purchaser have agreed to amend certain provisions of certain of
the outstanding Warrants;
WHEREAS, the Company and the Purchaser desire to amend certain provisions
of the Investment Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 1.4. Section 1.4 of the Investment Agreement is
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hereby amended by deleting such section in its entirety and substituting
therefor the following:
"(a) The Company has deposited ninety-one million, five hundred
thousand dollars ($91,500,000) of the proceeds received by the Company in
the Share Purchase into an interest-bearing escrow account (the "Escrow
Account") pursuant to the Escrow Agreement, dated as of September 11, 2000
(the "Escrow Agreement"), by and among U.S. Trust Company, National
Association (the "Escrow Agent"), the Purchaser and the Company. The
Purchaser and the Company shall direct the Escrow Agent to release to the
Company from the Escrow Account funds in an aggregate amount of forty-three
million, five hundred thousand dollars ($43,500,000). All amounts
remaining in the Escrow Account after such release, together with all
interest earned on any amounts held in the Escrow Account (all such funds
and interest, the "Escrowed Funds"), shall be held
as a trust fund and not subject to any lien, attachment, trustee process or
any other judicial process of any creditor of any party, and shall be held
and distributed in accordance with the terms hereof and the Escrow
Agreement.
Upon release to the Company in accordance with Section 1.4(b) and the
terms of the Escrow Agreement, forty-eight million dollars ($48,000,000) of
the Escrowed Funds shall be designated as "Earmarked Funds" and used
exclusively in accordance with Section 8.2 of the Commercial Agreement, and
any additional Escrowed Funds shall be released to the Company and may be
used by the Company for any purpose whatsoever. At any time that this
Agreement provides for the Escrowed Funds to be released from the Escrow
Account, both parties agree to take any action required under the Escrow
Agreement to cause the release of the Escrowed Funds.
(b) If (i)(x) the bona fide commercial release and deployment ("Set
Top Box Launch") of the Integrated Product (as defined in the Commercial
Agreement) has not occurred by December 31, 2001, or such later date as may
be mutually agreed by the Company and the Purchaser pursuant to Section 3.6
of the Commercial Agreement or otherwise (the "Planned Launch Date"), and
(y) the Purchaser has not committed a Material Breach (as defined in the
Commercial Agreement) of the Commercial Agreement that has not been cured
or waived at such time, or (ii) the Company breaches its obligations
pursuant to Section 6.9, Section 6.10 or Section 6.13 of this Agreement
(collectively, the "Financial Covenants"), then the Purchaser shall have
the option (the "Put Option"), exercisable for a period of ninety (90) days
following the Planned Launch Date or each such breach, as the case may be,
subject to the further provisions set forth herein, to require the Company,
exercisable by written notice to such effect to the Company, to repurchase
that number of Preferred Shares having an initial liquidation value equal
to the amount of the Escrowed Funds at such time (excluding any interest
included therein) (the "Put Amount") and, if all the Preferred Shares then
outstanding have an aggregate initial liquidation value of less than the
Put Amount, then the Purchaser may also require the Company to repurchase a
number of shares of Common Stock held by the Purchaser having a value
(calculated as the product of the number of shares of Common Stock and the
Common Stock Price paid by the Purchaser) equal to the difference between
the aggregate initial liquidation value of the Preferred Shares, if any,
and the Put Amount. The aggregate purchase price for the repurchase of
Shares pursuant to this Section 1.4(b) shall be deemed paid by the release
to the Purchaser of all the Escrowed Funds (including all interest included
therein); provided that the amount of the interest earned on funds
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deposited into the Escrow Account to be released to the Purchaser shall be
reduced by the amount of dividends actually paid in cash to the Purchaser
on the Preferred Shares, subject to a maximum equal to the amount of all
such interest. Notwithstanding the foregoing, in the event that the Set
Top Box Launch occurs after the Planned Launch Date, but prior to the
exercise of the Put Option, the Put Option under clause (i) above shall
immediately expire and be of no further force of effect.
In the event that the Put Option is exercised in accordance with the
terms of this Section 1.4(b), the closing of such repurchase shall occur as
soon as practicable following delivery of the Purchaser's notice of
exercise, subject to the receipt of necessary governmental approvals. The
Company agrees to use its best efforts to obtain all such
governmental approvals and take all such other actions as shall be required
to consummate such repurchase. At such closing, the Purchaser shall deliver
to the Company certificates representing the Shares to be repurchased and
the Company shall deliver to the Purchaser and the Escrow Agent under the
Escrow Agreement any notice of release or other instrument reasonably
requested by either of them to effectuate the release of the Escrowed Funds
(including all interest earned thereon, subject to the proviso in the
second sentence of this Section 1.4(b)) in accordance with the terms of the
Escrow Agreement and this Section 1.4(b). It is agreed that, in the event
the Purchaser is entitled to exercise the Put Option pursuant to clause
(ii) of the first sentence of this Section 1.4(b), such exercise shall be
in addition to and without limiting any other remedy or right, whether at
law or equity, that the Purchaser may have as a result of the breach of a
Financial Covenant.
(c) If the Set Top Box Launch occurs prior to December 31, 2001, the
Company shall be entitled to receive from the escrow under the Escrow
Agreement all Escrowed Funds. Forty-eight million dollars ($48,000,000) of
the Escrowed Funds released to the Company shall be designated as Earmarked
Funds and used exclusively in accordance with Section 8.2 of the Commercial
Agreement and any additional Escrowed Funds shall be released to the
Company and may be used by the Company for any purpose whatsoever.
2. Agreement to Amend the Escrow Agreement. In order to effectuate the
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foregoing, the Company and the Purchaser hereby agree to execute and deliver an
amendment to the Escrow Agreement in the form of Exhibit A hereto (the "Escrow
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Agreement Amendment"), with such changes and additions as shall be requested by
the Escrow Agent and reasonably acceptable to the Company and the Purchaser.
3. Amendment to the Warrants. In consideration for the release of the
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Escrowed Funds in accordance herewith and the other amendments effectuated
hereby, the Company hereby agrees that it shall amend (i) the TiVo Inc. Stock
Subscription Warrant No. VW-A-1, dated September 13, 2000, issued to the
Purchaser (the "VW-A-1 Warrant") and (ii) the TiVo Inc. Stock Subscription
Warrant No. VW-B-1, dated September 13, 2000, issued to the Purchaser (the
"VW-B-1 Warrant" and, together with the VW-A-1 Warrant, the "VW Warrants"), to
reflect certain changes in the exercise price of each VW Warrant as set forth
below. The Company shall deliver to the Purchaser an amended and restated form
of each warrant against delivery for cancellation of each warrant amended hereby
(the "Amended Warrants"). The Amended Warrants shall be in the forms of Exhibits
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B and C hereto. The Purchaser shall not be obligated to pay any additional
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consideration for the delivery of the Amended Warrants.
(a) The TiVo Inc. Stock Subscription Warrant No. VW-A-1, dated September
13, 2000, issued to the Purchaser is hereby amended by (i) deleting from the
first paragraph thereof the words "at a price per share (the "Warrant Price") of
$23.10625" and (ii) substituting in lieu thereof "at a price per share (the
"Warrant Price") of $7.29."
(b) The TiVo Inc. Stock Subscription Warrant No. VW-B-1, dated September
13, 2000, issued to the Purchaser is hereby amended by (i) deleting from the
first paragraph thereof the words "at a price per share (the "Warrant Price")
of $30.00" and (ii) substituting in lieu thereof "at a price per share (the
"Warrant Price") of $7.29."
4. Representations and Warranties of the Company.
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(a) Organization Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company has all requisite corporate power and
authority to execute and deliver this Second Amendment and the Escrow Agreement
Amendment and the Amended Warrants (collectively, the "Related Agreements"), to
carry out the provisions of this Second Amendment and the Related Agreements,
and to carry on its business as presently conducted and as presently proposed to
be conducted. The Company is duly qualified and is authorized to do business
and is in good standing as a foreign corporation in all jurisdictions in which
the nature of its activities and of its properties (both owned and leased) makes
such qualification necessary, except for those jurisdictions in which failure to
do so could not reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the Company or its business, assets, financial
condition, prospects, liabilities or results of operations (a "Material Adverse
Effect").
(b) Authorization; Binding Obligations.
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(i) All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution and
delivery of this Second Amendment and the Related Agreements and the performance
of all obligations of the Company hereunder and thereunder has been taken. Each
of this Second Amendment and the Related Agreements are valid and binding
obligations of the Company enforceable in accordance with their terms, except
(1) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors' rights
and (2) general principles of equity that restrict the availability of equitable
remedies. The subsequent exercise of the Amended Warrants and the issuance of
shares of Common Stock upon exercise thereof (the "Warrant Shares") are not and
will not be subject to any preemptive rights or rights of first refusal.
(ii) Other than filings which may be necessary pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), the Securities Exchange Act of
1934, as amended (the "Exchange Act"), no notice to, filing with, exemption or
review by, or authorization, consent or approval of, any public body or
authority is necessary for the consummation by the Company of the transactions
contemplated by this Second Amendment.
(c) Compliance with Other Instruments. The Company is not in violation or
---------------------------------
default under (i) any term of its Restated Certificate or Bylaws, (ii) any law,
ordinance, statute, rule or regulation or court order, judgment or decree or
(iii) any provision of any mortgage, indenture, contract, agreement, instrument
or contract to which it is party or by which it is bound or of any judgment,
decree, order, writ or any statute, rule or regulation applicable to the Company
which in the case of clause (iii) could reasonably be expected to, individually
or in the aggregate, have a Material Adverse Effect or which could have a
Material Adverse Effect, or which might materially and adversely affect the
consummation of the transactions contemplated by this Second Amendment or the
Related Agreements. The execution, delivery, and performance of and compliance
with this Second Amendment and the Related Agreements, and the issuance of the
Warrant Shares pursuant to the Amended Warrants will not result in any such
violation or default under clauses (i), (ii) or (iii) of the foregoing sentence,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of the Company or the suspension,
revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to the Company, its business or
operations or any of its assets or properties.
(d) Absence of Certain Changes. Since September 30, 2000, (i) no event,
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change or circumstance has occurred which would have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
and (ii) the Company has carried on its business in the ordinary course
consistent with past practices.
5. Representations and Warranties of the Purchaser.
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(a) Organization Good Standing and Qualification. The Purchaser is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Purchaser has all requisite corporate power and
authority to execute and deliver this Second Amendment and the Related
Agreements and to carry out the provisions of this Second Amendment and the
Related Agreements.
(b) Authorization; Binding Obligations. (i) All corporate action on the
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part of the Purchaser, its officers, directors and shareholders necessary for
the authorization, execution and delivery of this Second Amendment and the
Related Agreements and the performance of all obligations of the Purchaser
hereunder and thereunder has been taken. Each of this Second Amendment and the
Related Agreements are valid and binding obligations of the Purchaser
enforceable in accordance with their terms, except (1) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and (2) general
principles of equity that restrict the availability of equitable remedies.
(c) Investment Representations. The Purchaser understands that neither the
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Amended Warrants nor the Warrant Shares have been registered under the
Securities Act. The Purchaser hereby represents and warrants as follows as of
the date hereof and, for purposes of paragraphs (iii) and (v) below, as of the
date of any exercise of the Amended Warrants:
(i) Purchaser Bears Economic Risk. The Purchaser is capable of
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evaluating the merits and risks of its investment in the Company and by reason
of its, or of its management's, business or financial experience, the Purchaser
has the capacity to protect its own interests in connection with such investment
and the Amended Warrants and exercise of the Amended Warrants. The Purchaser
must bear the economic risk of its investment in the Company indefinitely unless
the Warrant Shares are registered pursuant to the Securities Act, or an
exemption from registration is available. The Purchaser also understands that
there is no assurance that any exemption from registration under the Securities
Act will be available and that, even if available, such exemption may not allow
the Purchaser to transfer all or any portion of the Amended Warrants or the
Warrant Shares under the circumstances, in the amounts or at the times the
Purchaser might propose.
(ii) Acquisition for Own Account. The Purchaser has acquired the
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Amended Warrants, and will acquire the Warrant Shares, if any, for the
Purchaser's own account and for investment only, and not with a view towards
their distribution.
(iii) Accredited Investor. The Purchaser is an accredited investor
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within the meaning of Regulation D under the Securities Act.
(iv) Company Information. The Purchaser has had an opportunity to
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discuss the Company's business, management and financial affairs with directors,
officers and management of the Company. The Purchaser has also had the
opportunity to ask questions of
and receive answers from, the Company and its management regarding the
terms and conditions of this investment.
(v) Rule 144. The Purchaser acknowledges and agrees that the Amended
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Warrants and, if issued, the Warrant Shares, must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
registration is available. The Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Company, the resale
occurring following the required holding period under Rule 144 and the number of
shares being sold during any three-month period not exceeding specified
limitations.
(vi) Address. The principal address of the Purchaser is 22000 AOL
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Way, Dulles, Virginia, 20166-9323.
6. Confidentiality. With respect to the first press release or other
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public announcement by the Company (the "Initial Press Release") and the first
filing by the Company with the SEC (the "Initial SEC Release") which, in each
case, includes information or statements concerning this Second Amendment, any
of the Related Agreements or any other agreements executed in connection
herewith or therewith, or the matters contemplated hereby or thereby, the
Company shall use its reasonable best efforts to cooperate with the Purchaser,
furnish drafts of all such information or statements to the Purchaser, and
provide the Purchaser with, in the case of the Initial Press Release, at least
one hour and, in the case of the Initial SEC Filing, at least 24 hours, within
which to review and comment upon any such information or statement. The Company
shall reflect all reasonable comments and requests of the Purchaser received by
the Company within the time set forth above in such information or statement
prior to the release thereof; provided that the Company shall be entitled to
file this Second Amendment, the Related Agreements and any other agreements
executed in connection herewith or therewith with the SEC. The Company shall
not release or permit the release of any such information or statement unless it
has first complied with the foregoing. In the event the Company or any of its
affiliates proposes to release any public information or statement (including
any SEC filings) with respect to this Second Amendment, any of the Related
Agreements or any other agreements executed in connection herewith or therewith,
or the matters contemplated hereby or thereby which is materially different in
substance, prominence or context from the Initial Press Release or the Initial
SEC Filings, then the Company shall be required to provide the Purchaser with
the 24-hour advance notice and comment period in accordance with the foregoing
prior to releasing any such information or statement.
7. Counterparts. This Second Amendment may be executed simultaneously or in
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any number of counterparts, each of which shall be deemed to be an original, and
all of which shall constitute one and the same instrument.
8. Effective Date; No Other Amendments. Each of the parties hereto
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agrees that the amendments to the Investment Agreement contained herein shall be
effective as of the date and year first above written upon execution of this
Second Amendment by each party hereto. Except as expressly amended hereby, the
provisions of the Investment Agreement are hereby ratified and confirmed by the
parties and shall remain in full force and effect. All references in
the Investment Agreement to "this Agreement" shall be read as references to the
Investment Agreement, as amended by the First Amendment and this Second
Amendment.
9. Construction and Governing Law. This Second Amendment shall be
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construed together with, and as a part of, the Investment Agreement and shall be
governed in all respects by the laws of the State of New York as such laws are
applied to agreements to be performed entirely in such state.
* * *
IN WITNESS WHEREOF, each of the undersigned has executed this Second
Amendment dated as of the date first written above.
TIVO INC.
By: /s/ DAVID H. COURTNEY
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Name: David H. Courtney
Title: Senior Vice President, Finance &
Administration
AMERICA ONLINE, INC.
By: /s/ LYNDA CLARIZIO
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Name: Lynda Clarizio
Title: Senior Vice President
Exhibit A
FIRST AMENDMENT TO ESCROW AGREEMENT
This FIRST AMENDMENT, dated as of January 30, 2001 (this "First
Amendment"), to the Escrow Agreement, dated as of September 11, 2000 (the
"Escrow Agreement"), is made by and between TIVO INC., a Delaware Corporation
(the "Company"), AMERICA ONLINE, INC., a Delaware corporation (the "Purchaser"),
and U.S. TRUST COMPANY, NATIONAL ASSOCIATION (the "Escrow Agent"). Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Escrow Agreement.
W I T N E S S E T H:
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WHEREAS, Section 8 of the Escrow Agreement provides for the amendment of
the Escrow Agreement upon the written consent of the Company, the Purchaser and
the Escrow Agent;
WHEREAS, the Purchaser and the Company are parties to the Investment
Agreement, dated as of June 9, 2000, as amended by the First Amendment, dated as
of September 11, 2000, and as amended by the Second Amendment, dated as of
January 30, 2001 (as so amended, the "Investment Agreement");
WHEREAS, pursuant to the Second Amendment to the Investment Agreement, the
Purchaser and the Company have agreed to direct the Escrow Agent to release
certain Escrowed Funds to the Company;
WHEREAS, the Company, the Purchaser and the Escrow Agent desire to amend
certain provisions of the Escrow Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 3. Section 3 of the Escrow Agreement is hereby amended
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by inserting the following new paragraph (c):
"(c) Release of Escrowed Funds at the Direction of the Company and
the Purchaser. All of the Escrowed Funds, or any portion thereof, shall be
released by the Escrow Agent to the Company, the Purchaser or a third
party, by wire transfer of immediately available funds to such account as
the Company and the Purchaser shall designate in writing, upon receipt by
the Escrow Agent of written instructions ("Joint Release Instructions")
signed by both the Company and the Purchaser that (i) certify that both the
Company and the Purchaser agree upon the release of the Escrowed Funds to
the account designated, (ii) specify the amount of the Escrowed Funds to be
released and (iii) specify the account information of the account to which
the Escrowed Funds shall be transferred."
2. Agreement to Release Escrowed Funds. Pursuant to the Joint Release
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Instructions attached as Annex A hereto, the Purchaser and the Company hereby
direct the Escrow Agent to release Escrowed Funds in the amount of forty-three
million, five hundred thousand dollars ($43,500,000) to the Company.
3. Governing Law. This First Amendment shall be governed by and construed in
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accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such state.
4. Confidentiality. With respect to the first press release or other public
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announcement by the Company (the "Initial Press Release") and the first filing
by the Company with the SEC (the "Initial SEC Release") which, in each case,
includes information or statements concerning this First Amendment, any of the
Related Agreements (as defined in the Second Amendment to the Investment
Agreement) or any other agreements executed in connection herewith or therewith,
or the matters contemplated hereby or thereby, the Company shall use its
reasonable best efforts to cooperate with the Purchaser, furnish drafts of all
such information or statements to the Purchaser, and provide the Purchaser with,
in the case of the Initial Press Release, at least one hour and, in the case of
the Initial SEC Filing, at least 24 hours, within which to review and comment
upon any such information or statement. The Company shall reflect all reasonable
comments and requests of the Purchaser received by the Company within the time
set forth above in such information or statement prior to the release thereof;
provided that the Company shall be entitled to file the Second Amendment, the
Related Agreements and any other agreements executed in connection herewith or
therewith with the SEC. The Company shall not release or permit the release of
any such information or statement unless it has first complied with the
foregoing. In the event the Company or any of its affiliates proposes to release
any public information or statement (including any SEC filings) with respect to
this First Amendment, any of the Related Agreements or any other agreements
executed in connection herewith or therewith, or the matters contemplated hereby
or thereby which is materially different in substance, prominence or context
from the Initial Press Release or the Initial SEC Filings, then the Company
shall be required to provide the Purchaser with the 24-hour advance notice and
comment period in accordance with the foregoing prior to releasing any such
information or statement .
5. Counterparts. This First Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6. Effective Date; No Other Amendments. Each of the parties hereto agrees that
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the amendments to the Escrow Agreement contained herein shall be effective as of
the date and year first above written upon execution of this First Amendment by
each party hereto. Except as expressly amended hereby, the provisions of the
Escrow Agreement are hereby ratified and confirmed by the parties and shall
remain in full force and effect. All references in the Escrow Agreement to "this
Agreement" shall be read as references to the Escrow Agreement, as amended by
this First Amendment.
IN WITNESS WHEREOF, each of the parties has caused this First Amendment to
be executed by a duly authorized officer as of the day and year first written
above.
AMERICA ONLINE, INC.
By: _____________________________
Name:
Title:
TIVO INC.
By: _____________________________
Name:
Title:
U.S. TRUST COMPANY, NATIONAL
ASSOCIATION
By: _____________________________
Name:
Title:
Annex I
JOINT RELEASE INSTRUCTIONS
JOINT RELEASE INSTRUCTIONS, dated ______, made by TIVO INC. (the "Company")
and AMERICA ONLINE, INC. (the "Purchaser") pursuant to the Escrow Agreement,
dated as of September 11, 2000, as amended by the First Amendment, dated as of
January 30, 2001 (the "Escrow Agreement"). Capitalized terms used but not
defined herein shall have the meanings given them in the Escrow Agreement.
1. The Company and the Purchaser agree that Escrowed Funds in an aggregate
amount of ___________________ shall be released as set forth herein.
2. The Escrow Agent is hereby directed to release ____________________ to
the following account of ____________________:
[Account Information]
3. The Escrow Agent is hereby directed to release ____________________ to
the following account of ____________________:
[Account Information]
AMERICA ONLINE, INC.
By: _____________________________
Name:
Title:
TIVO INC.
By: _____________________________
Name:
Title: