Stockholders And Registration Rights Agreement

STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT


by and between


TIVO INC.


and


AMERICA ONLINE, INC.


dated as of June 9, 2000


TABLE OF CONTENTS


Page


RECITALS.....................................................................1


ARTICLE I DEFINITIONS........................................................1
SECTION 1.1 Certain Defined Terms..................................1
SECTION 1.2 Other Definitional Provisions........................ .9


ARTICLE II CORPORATE GOVERNANCE OF THE COMPANY...............................9
SECTION 2.1 Board Representation/Observation.......................9
SECTION 2.2 Available Information.................................11
SECTION 2.3 Access................................................12
SECTION 2.4 Voting of Shares......................................12
SECTION 2.5 Termination of Rights and Obligations.................13
SECTION 2.6 Other Approval Rights.................................13
SECTION 2.7 Ownership Restrictions................................13


ARTICLE III TRANSFERS.......................................................13
SECTION 3.1 Transfer Restrictions.................................13
SECTION 3.2 Transferees...........................................14
SECTION 3.3 Right of First Offer..................................14
SECTION 3.4 Termination of Rights and Obligations.................15


ARTICLE IV EQUITY PURCHASE RIGHTS...........................................16
SECTION 4.1 Unregistered Securities Offerings.....................16
SECTION 4.2 Other Issuances of Common Stock.......................17
SECTION 4.3 Issuances of Convertible Securities...................18
SECTION 4.4 No Restrictions.......................................19
SECTION 4.5 Termination of Equity Purchase Rights.................20


ARTICLE V REGISTRATION RIGHTS...............................................20
SECTION 5.1 Registration on Request...............................20
SECTION 5.2 Incidental Registrations..............................24
SECTION 5.3 Additional Registration Rights........................25


ARTICLE VI REGISTRATION PROCEDURES..........................................25
SECTION 6.1 Registration Procedures...............................25
SECTION 6.2 Information Supplied..................................29
SECTION 6.3 Restrictions on Disposition...........................29
SECTION 6.4 Indemnification.......................................29
SECTION 6.5 Required Reports......................................33
SECTION 6.6 Holdback Agreement....................................33
SECTION 6.7 No Inconsistent Agreement.............................33


ARTICLE VII STANDSTILL......................................................34
SECTION 7.1 Acquisition of Additional Voting Securities...........34


ARTICLE VIII RIGHT OF NOTIFICATION AND FORBEARANCE..........................35
SECTION 8.1 Right of Notification.................................35
SECTION 8.2 Forbearance...........................................36
SECTION 8.3 Other Rights..........................................36


ARTICLE IX MISCELLANEOUS....................................................36
SECTION 9.1 Termination...........................................36
SECTION 9.2 Amendments and Waivers................................37
SECTION 9.3 Successors, Assigns and Transferees...................37
SECTION 9.4 Notices...............................................37
SECTION 9.5 Further Assurances....................................37
SECTION 9.6 Entire Agreement......................................37
SECTION 9.7 Delays or Omissions...................................38
SECTION 9.8 Governing Law; Jurisdiction; Waiver of Jury Trial.....38
SECTION 9.9 Severability..........................................38
SECTION 9.10 Enforcement..........................................38
SECTION 9.11 Titles and Subtitles.................................38
SECTION 9.12 Counterparts; Facsimile Signatures...................38


STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT


THIS STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of June 9, 2000, among TiVo Inc., a Delaware corporation (the "Company"), and America Online, Inc., a Delaware corporation ( "AOL").


RECITALS


WHEREAS, the Company and AOL have entered into a Definitive Product Integration and Marketing Relationship Agreement, dated as of the date hereof (the "Commercial Agreement") pursuant to which the Company and AOL will work together to jointly develop a branded interactive television service;


WHEREAS, the Company and AOL have entered into a Investment Agreement, dated as of the date hereof (the "Investment Agreement"), pursuant to which the Company has agreed to sell to AOL and AOL has agreed to purchase from the Company shares of its Common Stock (the "Shares") and, in certain circumstances, its Series A Convertible Preferred Stock, par value $0.001 per share (the "Preferred Shares"), upon the terms provided in the Investment Agreement and in the amended and restated certificate of incorporation of the Company in the form attached to the Investment Agreement as Exhibit A, and (ii) warrants to purchase shares of Common Stock, upon the terms provided in the Investment Agreement and in the forms of warrants attached as Exhibits B, C, D and E to the Investment Agreement (the "Warrants").


WHEREAS, the parties hereto desire to enter into certain arrangements relating to the Company and AOL's interest in the Company.


NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the parties hereto agree as follows:


ARTICLE I


DEFINITIONS


SECTION1.1 Certain Defined Terms. As used herein, the following terms shall have the following meanings:


"Acquisition Proposal" means any offer or proposal for any merger, consolidation, purchase of substantial assets of the Company (including securities), tender, exchange or other offer for any Equity Securities or other business combination involving the Company or any of its Subsidiaries.


"Acquisition Proposal Notice" has the meaning assigned to such term in Section 8.1(a). "Acquisition Restrictions" has the meaning assigned to such term in Section 7.1(a).


"Adverse Effect" has the meaning ascribed to such term in Section 5.1(g).


"Adverse Market Effect" has the meaning ascribed to such term in Section 5.1(h).


"Affiliate" means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person.


"AOL Offer Notice" has the meaning assigned to such term in Section 3.3(a).


"AOL Offered Securities" has the meaning assigned to such term in Section 3.3(a).


"AOL Observer" has the meaning ascribed to such term in Section 2.1.


"AOL Participation Securities" has the meaning assigned to such term in Section 4.3(a).


"AOL Representative" has the meaning ascribed to such term in Section 2.1.


"AOL Unregistered Shares" has the meaning assigned to such term in Section 4.1(a).


"Arbitrating Investment Banker" has the meaning assigned to such term in the definition of Fair Market Value contained in this Section 1.1.


"beneficial owner" or "beneficially own" has the meaning given such term in Rule 13d-3 under the Exchange Act and a Person's beneficial ownership of either Common Stock or Preferred Shares or other Voting Securities of the Company shall be calculated in accordance with the provisions of such Rule; provided that, for purposes of determining beneficial ownership, a Person shall be deemed to be the beneficial owner of any security which may be acquired by such Person whether within sixty (60) days or thereafter, upon the conversion, exchange or exercise of any warrants, options, rights or other securities.


"Business Day" means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in The City of New York.


"Bylaws" means the Amended and Restated Bylaws of the Company, as in effect on the date hereof and as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, the terms of the Certificate and the terms of this Agreement.


"Capital Stock" means, with respect to any Person at any time, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of capital stock, partnership interests (whether general or limited) or equivalent ownership interests in or issued by such Person and, with respect to the Company, includes any and all shares of Common Stock, the Preferred Shares and any other shares of preferred stock of the Company.


"Certificate" means the Amended and Restated Certificate of Incorporation of the Company as in effect on the date hereof and as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and the terms of this Agreement.


"Change of Control" means:


(a) any Person is or becomes the beneficial owner, directly or indirectly (whether by merger, consolidation, purchase of securities or otherwise), of more than 50% of the total voting power of all the outstanding Voting Securities of the Company (or its successor by merger, consolidation or purchase of all or substantially all of its assets) (for the purposes of this clause, such person shall be deemed to beneficially own any Voting Securities of the Company held by an entity, if such Person beneficially owns, directly or indirectly, more than 50% of the total voting power of the Voting Securities of such entity).


(b) during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the Company Board (together with any new Directors whose election by such Company Board or whose nomination for election by the stockholders of the Company, as the case may be, was approved by a vote of at least a majority of the Directors then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Company Board then in office;


(c) the Transfer, lease or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any Third Party; or


(d) the adoption by the stockholders of the Company of a plan or proposal for the liquidation or dissolution of the Company.


"Claims" has the meaning assigned to such term in Section 6.4(a).


"Closing" has the meaning assigned to such term in the Investment Agreement.


"Commercial Agreement" has the meaning assigned to such term in the Recitals.


"Common Stock" means the common shares, par value $0.001 per share, of the Company and any securities issued in respect thereof, or in substitution therefor, in connection with any stock split, dividend, spin-off or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization or business combination.


"Company Board" means the Board of Directors of the Company.


"Company Offering" has the meaning assigned to such term in Section 5.1(h).


"control" (including the terms "controlled by" and "under common control with"), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.


"Delay Notice" has the meaning assigned to such term in Section 5.1(h).


"Demand Party" has the meaning assigned to such term in Section 5.1(a).


"Director" means a member of the Company Board.


"Equity Securities" means any and all shares of Capital Stock of the Company, securities of the Company convertible into, or exchangeable or exercisable for, such shares, and options, warrants or other rights to acquire such shares (including the Warrants).


"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


"Fair Market Value" means, as of any date, (A) with respect to the securities of any Person, either (x) the average of the closing reported sale prices of such securities on the principal national securities exchange or automated quotation service on which such security is then listed or quoted for the ten consecutive trading days immediately prior to the date as of which Market Value is being determined, or (y) if such securities are not publicly traded, then the fair market value of such securities as mutually agreed in good faith between the Company and AOL or, failing such agreement, as determined by a nationally recognized investment banking firm selected by mutual agreement of an investment banking firm selected by AOL and an investment banking firm selected by the Company (the "Arbitrating Investment Banker"), and (B) with respect to any other assets, the fair market value of such assets as determined by the Arbitrating Investment Banker in accordance with the procedures set forth in clause (y) above.


"GAAP" means generally accepted accounting principles, as in effect in the United States of America from time to time.


"Group" has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act.


"Holder" means AOL and any Affiliates of AOL as well as any Transferee of AOL or any of its Affiliates entitled to the rights under Articles V and VI of this Agreement.


"Incentive Issuances" means the issuance or grant of any option to purchase Common Stock or shares of Common Stock (including upon the exercise of options) in the ordinary course of business under any employee stock option, employee stock purchase or other equity-based employee incentive plan, which plan was approved by the Company Board prior to such grant or issuance.


"Indemnified Parties" has the meaning assigned to such term in Section 6.4(a).


"Information Delay Notice" has the meaning assigned to such term in Section 5.1(h).


"Investment Agreement" has the meaning assigned to such term in the Recitals.


"Law" has the meaning assigned to such term in the Investment Agreement.


"Managing Underwriters" has the meaning assigned to such term in Section 5.1(f).


"Material Breach of the Commercial Agreement" means a "Material Breach" as defined in the Commercial Agreement.


"NASD" means the National Association of Securities Dealers, Inc.


"Nasdaq" means the Nasdaq National Market tier of The Nasdaq Stock Market.


"NYSE" means The New York Stock Exchange, Inc.


"Other Issuance Shares" has the meaning assigned to such term in Section 4.2(a).


"Other Share Issuance" has the meaning assigned to such term in Section 4.2(a).


"Ownership Percentage" means, at any time, the ratio, expressed as a percentage, (i) of the total shares of Common Stock beneficially owned by AOL and its Affiliates to (ii) the total number of outstanding shares of Common Stock, in each case (x) including (A) all shares issuable upon conversion of the Preferred Shares, if any, and (B) all shares issuable upon exercise of all the Warrants (regardless of whether they are exercisable at such time), but (y) excluding all shares issuable upon the conversion or exercise of Participation Securities or any other convertible or exercisable securities of the Company.


"Participation Offering" has the meaning assigned to such term in Section 4.3(a).


"Participation Offering Notice" has the meaning assigned to such term in Section 4.3(b).


"Participation Securities" has the meaning assigned to such term in Section 4.3(a).


"Person" means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivisions thereof or any Group comprised of two or more of the foregoing.


"Preferred Shares" has the meaning assigned to such term in the Recitals.


"Pro Rata Portion" means:


(a) for purposes of Section 4.1, on any issuance date for Unregistered Shares, the number or amount of Unregistered Shares equal to the product of (i) the total number or amount of Unregistered Shares to be issued by the Company on the applicable date multiplied by (ii) the fraction determined by dividing (A) the number of shares of Common Stock beneficially owned by AOL and its Affiliates (including the shares of Common Stock issuable upon conversion of the Preferred Shares, but excluding any shares of Common Stock issuable pursuant to the Warrants or Participation Securities held by AOL on such date) by (B) the total number of shares of Common Stock outstanding on such date;


(b) for purposes of Section 4.2, on any issuance date for an Other Share Issuance, the number or amount of Other Issuance Shares included in such Other Share Issuance equal to the product of (i) the total number or amount of Other Issuance Shares issued by the Company on the applicable date multiplied by (ii) the fraction determined by dividing (A) the number of shares of Common Stock beneficially owned by AOL and its Affiliates (including the shares of Common Stock issuable upon conversion of the Preferred Shares, but excluding any shares of Common Stock issuable pursuant to the Warrants or Participation Securities held by AOL on such date) by (B) the total number of shares of Common Stock outstanding on such date; or


(c) for purposes of Section 4.3, on any issuance date for Participation Securities, the number or amount of Participation Securities equal to the product of (i) the total number or amount of Participation Convertible Securities to be issued by the Company multiplied by (ii) the fraction determined by dividing (A) the number of shares of Common Stock beneficially owned by AOL and its Affiliates on such date (including the shares of Common Stock issuable upon conversion of the Preferred Shares, exercise of the Warrants, and exercise or conversion of Participation Securities previously issued and outstanding) by (B) the total number of shares of Common Stock outstanding on such date (including the shares of Common Stock issuable upon conversion of the Preferred Shares, exercise of the Warrants, and exercise or conversion of Participation Securities previously issued and outstanding).


"Registrable Securities" means any Preferred Shares and any Common Stock (including the Warrant Shares) held by any Holder. For purposes of this Agreement, any required calculation of the amount of, or percentage of, Registrable Securities shall be based on the number of shares of Common Stock which are Registrable Securities, including shares issuable upon the conversion, exchange or exercise of any security convertible, exchangeable or exercisable into Common Stock (including the Warrants and the Preferred Shares). As to any particular Registrable Securities, once issued, such Registrable Securities shall cease to be Registrable Securities when:


(i) a registration statement with respect to the sale by the
Holder of such securities shall have become effective under
the Securities Act and such securities shall have been
disposed of in accordance with such registration statement;


(ii) such securities shall have been distributed to the public
pursuant to Rule 144; or


(iii) such securities shall have ceased to be outstanding.


"Registration Expenses" means any and all expenses incident to performance of or compliance with Articles V and VI of this Agreement, including:


(i) all SEC and NYSE or other securities exchange, Nasdaq or NASD
registration and filing fees;


(ii) all fees and expenses of complying with securities or blue sky
laws (including the reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities);


(iii) all printing, messenger and delivery expenses;


(iv) all fees and expenses incurred in connection with the listing
of the Registrable Securities on Nasdaq or any other
securities exchange pursuant to this Agreement and all rating
agency fees;


(v) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of
any special audits and/or "cold comfort" letters required by
or incident to such performance and compliance;


(vi) any reasonable fees and disbursements of underwriters and
their counsel customarily paid by the issuers or sellers of
securities, and the reasonable fees and expenses of special
experts retained in connection with the requested
registration, but excluding underwriting discounts and
commissions; and


(vii) all expenses incurred in connection with any road shows.


"Rule 144" means Rule 144 (or any successor provision) promulgated under the Securities Act.


"Schedule 13D" means the Statement on Schedule 13D filed by AOL pursuant to Rule 13d-1 under the Exchange Act relating to AOL's interest in the Company's Capital Stock, and any amendments thereto.


"SEC" means the U.S. Securities and Exchange Commission or any other federal agency then administering the Securities Act or the Exchange Act and other federal securities laws.


"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


"Set Top Box Launch" has the meaning assigned to such term in the Investment Agreement.


"Shares" has the meaning assigned to such term in the Recitals.


"Standstill Period" means the period commencing on the date hereof and continuing until the earlier of:


(i) the eighth anniversary of the date hereof; or


(ii) the first date on which AOL does not own in excess of 10% of
the outstanding shares of Common Stock.


"Subsidiary" means (i) any corporation of which a majority of the securities entitled to vote generally in the election of directors thereof, at the time as of which any determination is being made, are owned by another entity, either directly or indirectly, and (ii) any joint venture, general or limited partnership, limited liability company or other legal entity in which an entity is the record or beneficial owner, directly or indirectly, of a majority of the voting interests or the general partner.


"Third Party" means any Person who is not an Affiliate of AOL, including any Group, other than a Group which includes AOL or any of its Affiliates as members.


"Transaction Agreements" means the, collectively, this Agreement, the Investment Agreement, the Warrants, the Voting Agreement (as defined in the Investment Agreement), the Escrow Agreement (as defined in the Investment Agreement), the Restated Certificate (as defined in the Investment Agreement) and the Commercial Agreement.


"Transaction Delay Notice" has the meaning assigned to such term in Section 5.1(h).


"Transfer" means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Equity Securities beneficially owned by a Person.


"Transferee" means any Person to whom AOL or any Transferee thereof Transfers Equity Securities of the Company.


"Unregistered Offering" has the meaning assigned to such term in Section 4.1(a).


"Unregistered Offering Notice" has the meaning assigned to such term in Section 4.1(b).


"Unregistered Shares" has the meaning assigned to such term in Section 4.1(a).


"Voting Securities" means, at any time, shares of any class of Equity Securities which are then entitled to vote generally in the election of Directors.


"Warrants" has the meaning assigned to such term in the Recitals.


"Warrant Shares" means the shares of Common Stock or other Equity Securities purchasable pursuant to the Warrants, as adjusted from time to time in accordance with the terms of ...