EXHIBIT 10.12B
INTERACTIVE NETWORK, INC.
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WAIVER AND AMENDMENT OF STOCK PURCHASE AGREEMENT
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WITH GANNETT CO., INC.
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WHEREAS, the undersigned entered into a Stock Purchase Agreement dated
December 2, 1992 (the "Agreement") with Interactive Network, Inc. (the
"Company") and David B. Lockton, under which the undersigned was granted a right
of first refusal to purchase certain securities proposed to be issued by the
Company.
WHEREAS, the Company proposes to raise $50,000,000 through the sale
and issuance of convertible secured promissory notes (the "Notes") and other
securities of the Company, on the terms and subject to the conditions set forth
in a Summary of Terms attached hereto as Appendix I. The Notes are convertible
into shares of Common Stock of the Company (the "Conversion Shares"). The Notes,
Conversion Shares and other securities of the Company issued or to be issued
pursuant to the Summary of Terms are referred to collectively herein as the
"Securities".
WHEREAS, the Company desires to grant registration rights to the
holders of the Notes with respect to the Conversion Shares and other shares of
Common Stock of the Company that may be issued upon conversion or exercise of
other Securities contemplated by the Summary of Terms or pursuant to anti-
dilution rights referred to in the Summary of Terms (collectively, the
"Shares").
IN CONSIDERATION OF, and as an inducement to, the consummation of the
transactions contemplated by the Summary of Terms, the undersigned agrees as
follows:
1. Waiver and Termination of Right of First Refusal. The undersigned
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hereby waives the provisions of Section 9.1 of the Agreement with respect to the
sale and issuance of the Securities in the transactions contemplated by the
Summary of Terms. The undersigned further agrees that the provisions of Section
9.1 of the Agreement are hereby terminated and shall be of no further force and
effect after the date hereof.
2. Board of Directors. The provisions of Section 7.5 of the
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Agreement are hereby amended to read in their entirety as follows:
"7.5 Board of Directors.
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(a) The Company shall include in the slate of nominees recommended by
the Company's Board of Directors or management to shareholders for
election as directors at
each annual meeting of shareholders of the Company one (1) person
designated by the Purchaser. The nominee may be employed by Purchaser.
The Company shall use its best efforts to cause all Common Stock for
which the Company's management or directors hold proxies or are
otherwise entitled to vote to be voted in favor of the election of
such designee and Lockton agrees to vote or cause all shares of Common
Stock of the Company owned of record or beneficially by him to be
voted in favor of such designee. In the event that such designee shall
cease to serve as a director for any reason (including removal for
cause), the Company shall use its best efforts to fill such vacancy
with another like designee.
(b) The designee of Purchaser shall be entitled to excuse himself from
all deliberations of the Board of Directors of the Company, or
discussions of such Board concerning business relationships between
the Company and Purchaser."
3. Registration Rights. The undersigned hereby consents pursuant to
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Section 8.12 of the Agreement to the grant of registration rights to Tele-
Communications, Inc., National Broadcasting Company, Inc., Motorola, and Sprint
Corporation or their respective wholly-owned subsidiaries, with respect to the
Shares. The undersigned further agrees that the provisions of Section 8 of the
Agreement are hereby amended as follows:
(A) Section 8.1 is hereby amended to add the following subsection (e):
"(e) "Strategic Lender Registrable Stock" means (i) all shares of
Common Stock of the Company issued to Tele-Communications, Inc.
("TCI"), National Broadcasting Company, Inc. ("NBC"), and Motorola and
Sprint Corporation ("Sprint") (collectively, the "Strategic
Partners"), or their respective wholly owned subsidiaries
(collectively, the "Strategic Lenders"), or any of them, upon
conversion of promissory notes, or securities into which said
promissory notes are convertible, issued to the Strategic Lenders by
the Company in connection with a loan (the "Loan") to the Company
pursuant to a definitive Note Purchase Agreement (the "Note
Agreement") having substantially the terms set forth in a Term Sheet
dated August 31, 1994, as amended, among the Company and the Strategic
Partners (the "Term Sheet"), (ii) all shares of Common
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Stock of the Company issued to the Strategic Lenders, or any of them,
or issued upon conversion of promissory notes, or securities into which
said promissory notes are convertible, in connection with financings
provided to the Company by the Strategic Lenders from June 1, 1994 to
the date hereof, (iii) all shares of Common Stock of the Company issued
pursuant to the anti-dilution provisions of the Note Agreement, (iv)
all shares of Common Stock of the Company issued to NBC pursuant to the
anti-dilution provisions of the Stock Purchase Agreement dated December
2, 1992 by and among the Company, NBC, Rainbow Programming Holdings,
Inc. and David B. Lockton, (v) all shares of Common Stock of the
Company issued to TCI Development Corporation ("TDC"), a wholly owned
subsidiary of TCI pursuant to the anti-dilution provisions of the
Amended and Restated Stock Purchase Agreement dated June 4, 1993 by and
among the Company, TDC and David B. Lockton, (vi) all shares of Common
Stock of the Company issued to the Strategic Lenders upon exercise of
warrants issued to the Strategic Lenders in connection with the
Commitment Fee as described in the Term Sheet, (vii) all shares of
Common Stock of the Company issued to the Strategic Lenders upon
exercise of warrants issued to the Strategic Lenders in connection with
the Funding Fee, as described in the Term Sheet, and (viii) all shares
of Common Stock of the Company issued as (or issuable upon conversion
of any securities issued by the Company pursuant to the Loan Agreement,
or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of any of the
foregoing; excluding in all cases, however, any Strategic Lender
Registrable Stock sold by a person in a transaction in which its
registration rights with respect to such stock are not assigned."
(B) Section 8.6 is hereby amended to add the following introductory clause:
"Except as otherwise provided in Section 8.14,"
(C) A new Section 8.14 shall be added to read in its entirety as follows:
"8.14 Limitation on Registration Rights. Notwithstanding any other
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provision set forth in this Section 8:
(a) If the underwriter in any registration for an
underwritten offering of Common Stock of the Company determines that
(i) marketing factors require a limitation of the number of shares to
be underwritten,
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(ii) the offering price per share would be reduced by the inclusion of
any shares other than the Strategic Lender Registrable Stock, or (iii)
some other limitation is advisable, then the number of shares of
Common Stock of the Company to be included in the registration and
underwriting shall first be allocated among all Strategic Lenders who
indicated to the Company their decision to distribute any of their
Strategic Lender Registrable Stock through such underwriting, and then
pursuant to the terms of this Section 8.
(b) Holders are not permitted to include any Registrable
Stock, or any other securities of the Company, in any registration
initiated by the Strategic Lenders in which any Strategic Lender
Registrable Stock is included in such registration."
4. Remainder of Agreement. Except as specifically provided herein,
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the Agreement shall remain in full force and effect.
Dated: September ___, 1994 GANNETT CO., INC.
By:
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Title:
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AGREED AND ACKNOWLEDGED
INTERACTIVE NETWORK, INC.
By:
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Title:
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