EXHIBIT 10
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of February 20, 2001 ("First Amendment"), to
the Rights Agreement dated as of January 16, 2001 (the "Rights Agreement"),
between TiVo Inc., a Delaware corporation (the "Company"), and Wells Fargo
Shareowner Services (the "Rights Agent"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the Rights
Agreement. All section and exhibit references are to sections and exhibits of
the Rights Agreement.
WHEREAS, pursuant to Section 26, the Company and the Rights Agent may
from time to time supplement or amend any provision of the Rights Agreement in
accordance with the terms of such Section 26.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in this Amendment, the parties hereby amend the Rights
Agreement as follows:
1. Section 1.1 is hereby amended and restated in its
entirety as follows:
"1.1. "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined) of
15% or more of the Common Shares of the Company then outstanding but
shall not include (i) an Exempt Person or (ii) any Existing Holder,
unless and until such time as such Existing Holder shall become the
Beneficial Owner of 30.01% or more of the Common Shares of the Company
then outstanding; provided that no Existing Holder shall become an
"Acquiring Person" due to any acquisition of beneficial ownership or
other effect by reason of or due to (i) any acquisition of beneficial
or record ownership by AOL and its Affiliates and Associates of
securities of the Company pursuant to the terms of any of the
Transaction Agreements (as defined in the Stockholders and Registration
Rights Agreement by and between the Company and America Online, Inc.,
dated as of June 9, 2000), as amended from time to time (including,
without limitation, the issuance of securities thereunder, the exercise
of ongoing securities purchase rights thereunder, the conversion,
exercise, antidilution, adjustment, dividend or redemption provisions
of the preferred stock and warrants issued thereunder or otherwise) or
(ii) any action taken by the Company (including, without limitation,
repurchases of securities or dividends on equity securities). "Existing
Holder" shall mean America Online, Inc., together with all of its
Affiliates and Associates, until such time as America Online, Inc.,
together with all of its Affiliates and Associates, cease to
beneficially own any Common Shares. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 15% (or, in the case of an
Existing Holder, 30%) or more of the Common Shares of the Company then
outstanding; provided, however, that if any Person other than an
Existing Holder shall become the Beneficial Owner of 15% or more of the
Common Shares of the Company
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then outstanding solely by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the Beneficial
Owner of one or more additional Common Shares of the Company, then such
Person shall be deemed to be an "Acquiring Person" unless upon becoming
the Beneficial Owner of such additional shares of Common Stock such
Person does not beneficially own 15% or more of the shares of Common
Stock then outstanding. Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this Section 1.1, has become such inadvertently
(including, without limitation, because (A) such Person was unaware
that it beneficially owned a percentage of Common Stock that would
otherwise cause such Person to be an "Acquiring Person" or (B) such
Person was aware of the extent of its Beneficial Ownership of Common
Stock but had no actual knowledge of the consequences of such
Beneficial Ownership under this Agreement), and without any intention
of changing or influencing control of the Company, and such Person
divests as promptly as practicable a sufficient number of Common Shares
so that such Person would no longer be an Acquiring Person, as defined
pursuant to the foregoing provisions of this Section 1.1, then such
Person shall not be deemed to be or have become an "Acquiring Person"
at any time for any purposes of this Agreement. For all purposes of
this Agreement, any calculation of the number of Common Shares
outstanding at any particular time (from the adoption of this Agreement
and thereafter), including for purposes of determining the particular
percentage of such outstanding Common Shares of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement, without regard to the 60-day
limitation in Rule 13d-3(d)(1)(i).
2. This First Amendment shall be effective as of the date
hereof and, except as expressly set forth herein, the Rights Agreement shall
remain in full force and effect and be otherwise unaffected hereby.
3. This First Amendment may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all such counterparts shall together constitute one and the same document.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first written above.
TIVO INC.
By /s/ David H. Courtney
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David H. Courtney
CFO & Senior Vice President, Finance &
Administration
WELLS FARGO SHAREOWNER SERVICES
By /s/ Corbin B. Connell
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Corbin B. Connell
Assistant Vice President
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