VOTING AGREEMENT, dated as of June 9, 2000 (this "Agreement"), among
America Online, Inc., a Delaware corporation ("America Online"), and the
stockholders of TiVo Inc., a Delaware corporation ("TiVo"), that are parties
hereto (each, a "Stockholder" and, collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, America Online and TiVo are, concurrently with the execution
and delivery of this Agreement, entering into an Investment Agreement, dated as
of the date hereof (including the exhibits thereto, the "Investment Agreement;"
capitalized terms used without definition herein having the meanings assigned to
them in the Investment Agreement), pursuant to which America Online will acquire
shares of the capital stock of TiVo; and
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of common stock, par value $0.001 per
share, of TiVo ("TiVo Common Stock"), as set forth on the signature page hereof
beneath such Stockholder's name (with respect to each Stockholder, such
Stockholder's "Existing Shares" and, together with any shares of TiVo Common
Stock or other voting capital stock of TiVo acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of convertible
securities or otherwise, such Stockholder's "Shares");
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. Each Stockholder hereby agrees that it shall, and shall
cause the holder of record on any applicable record date to, from time to time,
at the request of America Online, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of stockholders of TiVo,
however called, or in connection with any written consent of the holders of TiVo
Common Stock, (a) if a meeting is held, appear at such meeting or otherwise
cause the Shares that are beneficially owned or held of record by such
Stockholder or as to which such Stockholder has, directly or indirectly, the
right to vote or direct the voting to be counted as present thereat for purposes
of establishing a quorum, and (b) vote or consent (or cause to be voted or
consented), in person or by proxy, all Shares, and any other voting securities
of TiVo (whether acquired heretofore or hereafter) that are beneficially owned
or held of record by such Stockholder or as to which such Stockholder has,
directly or indirectly, the right to vote or direct the voting, in favor of (i)
the amendments to the certificate of incorporation of TiVo contemplated by the
Investment Agreement and the form of Amended and Restated Certificate of
Incorporation of TiVo attached as Exhibit A to the Investment Agreement and (ii)
the approval of the issuance by TiVo of the Shares, the Conversion Shares, the
Warrants and the Warrant Shares (as each such term is defined in the Investment
Agreement) pursuant to the terms of the Investment Agreement and shares of
Common Stock pursuant to the Stockholders Agreement (any matter under clauses
(i) or (ii), a "Subject Proposal").
1.2 Proxy. Each Stockholder hereby irrevocably grants to, and appoints, David
Courtney and any person designated in writing by him, and each of them
individually, as such Stockholder's proxy, agent and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of such
Stockholder, to vote (or cause to be voted) the Shares beneficially owned or
held of record by such Stockholder or as to which such Stockholder has, directly
or indirectly, the right to vote or direct the voting, or grant a consent or
approval in respect of such Shares, in each case, on any Subject Proposal in a
manner consistent with Section 1.1. America Online acknowledges that no
Stockholder is granting a proxy with respect to any matter to be voted on by
TiVo's stockholders other than a Subject Proposal. Each Stockholder hereby
affirms that such proxy is given in connection with the execution of the
Investment Agreement, is coupled with an interest and may under no circumstances
be revoked prior to the termination of this Agreement.
1.3 No Ownership Interest. Nothing contained in this Agreement shall be deemed
to vest in America Online any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and America Online shall have no authority to manage, direct,
superintend, restrict, regulate, govern, or administer any of the policies or
operations of TiVo or exercise any power or authority to direct the Stockholders
in the voting of any of the Shares, except as otherwise provided herein, or in
the performance of the Stockholders' duties or responsibilities as stockholders
of TiVo.
1.4 No Inconsistent Agreements. Each Stockholder hereby covenants and agrees
that, except as contemplated by this Agreement and the Investment Agreement, the
Stockholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy or power of attorney with
respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to America Online as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. Such Stockholder has
full power and authority to execute and deliver this Agreement, to perform such
Stockholder's obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such Stockholder
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by such Stockholder and no other
actions or proceedings on the part of such Stockholder are necessary to
authorize the execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Stockholder, and, assuming this
Agreement constitutes a valid and binding obligation of America Online,
constitutes a valid and binding obligation of such Stockholder, enforceable
against it in accordance with its terms.
2.2 Shares. Such Stockholder's Existing Shares are, and all of its Shares from
the date hereof through and on the Closing Date will be, owned beneficially and
of record by such Stockholder (subject to any dispositions of Shares permitted
by Section 3.1(a) hereof). As of the date hereof, such Stockholder's Existing
Shares constitute all of the shares of TiVo Common Stock owned of record or
beneficially by such Stockholder. Such Stockholder has or will have sole voting
power, sole power of disposition, sole power to issue instructions with respect
to the matters set forth in Article I hereof, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of
such Stockholder's Existing Shares and with respect to all of such Stockholder's
Shares at the Company Stockholders Meeting, with no limitations, qualifications
or restrictions on such rights, subject to applicable federal securities laws
and the terms of this Agreement.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of Stockholders.
(a) Each Stockholder, severally and not jointly, hereby agrees, while this
Agreement is in effect, and except as contemplated hereby, not to sell,
transfer, pledge, encumber, assign or otherwise dispose of (collectively, a
"Transfer") or enforce or permit the execution of the provisions of any
redemption, share purchase or sale, recapitalization or other agreement with
TiVo or enter into any contract, option or other arrangement or understanding
with respect to the offer for sale, sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of its Existing Shares, any Shares
acquired after the date hereof, any securities exercisable for or convertible
into TiVo Common Stock, any other capital stock of TiVo or any interest in any
of the foregoing with any Person, except to a Person who agrees in writing,
pursuant to an agreement delivered to AOL, to be bound by this Agreement as a
Stockholder and be subject to Sections 1.1 and 1.2.
(b) In the event of a stock dividend or distribution, or any change in TiVo
Common Stock by reason of any stock dividend or distribution, or any change in
TiVo Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
Shares may be changed or exchanged or which are received in such transaction.
ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate and no party shall have any
rights or duties hereunder upon the earlier of (a) the date on which the Company
Stockholder Approval (as defined in the Investment Agreement) is received, (b)
the termination of the Investment Agreement pursuant to the terms thereof, or
(c) December 31, 2000. Nothing in this Section 4.1 shall relieve or otherwise
limit any party of liability for breach of this Agreement.
4.2 Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate the transactions contemplated by this Agreement.
4.3 Notices. All notices and other communications hereunder shall be in writing
and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or telefacsimile, upon confirmation of receipt, (b)
on the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the tenth Business Day following
the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
(a) if to America Online, to its address specified in Section 7.8 of the
Investment Agreement (including a copy to Simpson Thacher & Bartlett); and
(b) if to a Stockholder, as provided on the signature pages hereof.
4.4 Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that both parties need not
sign the same counterpart.
4.5 Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware (without giving effect to choice of law
principles thereof).
4.6 Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
4.7 Enforcement. The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
[Remainder of this page intentionally left blank].
IN WITNESS WHEREOF, America Online and each of the Stockholders have
caused this Agreement to be signed by their respective officers or other
authorized person thereunto duly authorized as of the date first written above.
AMERICA ONLINE, INC.
By: /s/ David M. Colburn
Name: David M. Colburn
Title: President, Business Affairs
/s/ Michael Ramsay
Michael Ramsay
Number of Existing Shares: 2,114,999
Notices
Address: c/o TiVo, Inc.
2160 Gold Street
Alviso, CA 95002
Fax: (408) 519-5333
Attention:
/s/ James Barton
James Barton
Number of Existing Shares: 1,624,999
Notices
Address: TiVo, Inc.
2160 Gold Street
Alviso, CA 95002
Fax: (408) 519-5333
Attention:
/s/ David Courtney
David Courtney
Number of Existing Shares: 75,000
Notices
Address: TiVo, Inc.
2160 Gold Street
Alviso, CA 95002
Fax: (408) 519-5333
Attention:
New Enterprise Associates VII,
Limited Partnership
By: NEA Partners VII, Limited Partnership
Its General Partner
By: /s/ Mark Perry
Name: Mark W. Perry
Title: General Partner
NEA Presidents Fund, L.P.
By: NEA General Partners, L.P.
Its General Partner
By: /s/ C. Richard Kramlich
Name: C. Richard Kramlich
Title: General Partner
NEA Ventures 1997, Limited Partnership
By: /s/ Jacqueline Myers
Name: Jacqueline Myers
Title: Vice President
Number of Existing Shares: 4,167,204
Notices
Address: New Enterprise Associates
2490 Sand Hill Road
Menlo Park, CA 94025
Fax: (650) 854-9397
Attention: Stewart Alage
Institutional Venture Partners VII, L.P.
By Its General Partner
Institutional Venture Management VII, L.P.
By: /s/ Norman A. Fogelsong
Name: Norman A. Fogelsong
Title: General Partner
Institutional Venture Management VII, L.P.
By: /s/ Norman A. Fogelsong
Name: Norman A. Fogelsong
Title: General Partner
IVP Founders Fund I, L.P.
By Its General Partner
Institutional Venture Management VI, L.P.
By: /s/Norman A. Fogelsong
Name: Norman A. Fogelsong
Title: General Partner
Number of Existing Shares: 4,217,204
Notices
Address: 3000 Sand Hill Road
Bldg. 2, Suite 290
Menlo Park, CA 94025
Fax: (650) 854-5762
Attention: Geoffrey Young
Philips Venture Capital Fund B.V.
By: /s/ James Oosterveld
Name: James Oosterveld
Title: Director
and
By: /s/ A.Westerlaken
Name: A. Westerlaken
Title: Director
Number of Existing Shares: 1,351,351
Notices
Address: Philips Venture Capital Fund B.V.
Building HRT-24
Rembrandt Tower
Amstelplain 1
P.O. Box 77900
1070 MX Amsterdam
The Netherlands
Fax: 31 20 59 77 890
Attention: Mr. J. P. Oosterveld
Sony Corporation of America, Inc.
By: /s/ Kenneth L. Ness
Name: Kenneth L. Ness
Title: Senior Vice President and Secretary
Number of Existing Shares: 2,643,482
Notices
Address:
Fax:
Attention:
DirecTV, Inc.
By: /s/ E.W. Hartenstein
Name: E.W. Hartenstein
Title: Chariman of the Board
Number of Existing Shares: 3,386,601
Notices
Address: 2230 E. Imperial Highway
El Segundo, CA 90245
Fax: (310) 964-0222
cc: (310) 726-4884
Attention: E.W. Hartenstein
cc: Legal Department
/s/ John Hendricks
John Hendricks
Number of Existing Shares: 720,461
Notices
Address: Discovery Communications, Inc.
7700 Wisconsin Avenue
Bethesda, MD 20819
Fax: (301) 986-5999
Attention: John Hendricks
