SECOND AMENDMENT
TO
RESTRICTED STOCK ACQUISITION AGREEMENT
This Second Amendment to Restricted Stock Acquisition Agreement (this
"Amendment") is made as of January 29, 1997, by and between Macrovision
Corporation, a California corporation, and Command Audio Corporation, a
California corporation ("CAC").
RECITALS
A. The parties entered into a Restricted Stock Acquisition Agreement
dated as of July 31, 1996, as previously amended by a First Amendment dated as
of November 29, 1996, (collectively the "Agreement").
B. The parties now wish to amend the Agreement as set forth herein.
AGREEMENT
The parties agree as follows:
1. AMENDMENT OF SECTION 2 OF THE AGREEMENT. Section 2 of the Agreement
is amended to read in its entirety as follows:
2. VESTED SHARES. As of January 29, 1997, all three hundred fifty
thousand (350,000) of the Shares issued by Macrovision to CAC pursuant to
this Agreement are "Vested Shares."
2. AMENDMENT OF SECTION 3 OF THE AGREEMENT. Section 3 of the Agreement
is amended to read in its entirety as follows:
3. SALE OF SHARES IN INITIAL PUBLIC OFFERING. Notwithstanding any
other provision contained in this Agreement to the contrary, CAC agrees to
sell, and Macrovision waives its right of first refusal pursuant to Section
11 below thus permitting CAC to sell, all three hundred fifty thousand
(350,000) of the Shares in the first underwritten registration of an
offering of the Common Stock of Macrovision (the "IPO") pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), provided that the IPO
becomes effective on or before March 31, 1997. The following provisions
shall apply to such sale:
3.1 SELLING SHAREHOLDER DOCUMENTS AND DELIVERY OF SHARES. CAC
shall sign and deliver such documents as may be required by the
underwriters or as otherwise may be necessary or desirable to register the
Shares in the IPO, including such indemnification provisions as may be
required of CAC. CAC shall deliver any and all certificates for the Shares
that CAC holds, and CAC
and Macrovision shall instruct the Escrow Agent to deliver any and all
certificates for the Shares that the Escrow Agent holds, to the person(s)
specified in, and in accordance with, such selling shareholder documents.
3.2 EXPENSES OF REGISTRATION. Macrovision shall pay any and all
registration, qualification and filing fees, printing expenses, escrow
fees, attorneys fees and disbursements of counsel for Macrovision, blue sky
fees and expenses, and the expense of any special audits, that are incurred
in connection with the IPO. All underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities
registered in the IPO shall be borne by CAC, Macrovision and other selling
shareholders pro rata on the basis of the number of shares each has
registered.
3.3 INDEMNIFICATION OF CAC. Macrovision will indemnify CAC, its
officers and directors against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto,
incident to the IPO, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they
were made, not misleading, or any violation by Macrovision of the 1933 Act
or the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any
rule or regulation promulgated under the 1933 Act, the 1934 Act or any
state securities laws applicable to Macrovision in connection the IPO, and
Macrovision will reimburse CAC, its officers and directors for any legal
and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that Macrovision will not be liable in any
such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or
alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to Macrovision by CAC, its
officers and/or directors (other than ▇▇▇▇ ▇▇▇▇) and stated to be
specifically for use therein. CAC shall give notice to Macrovision
promptly after CAC, or any of its officers or directors, has actual
knowledge of any claim as to which indemnity may be sought, and shall
permit Macrovision to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for Macrovision, who
shall conduct the defense of such claim or litigation, shall be approved by
CAC (whose approval shall not unreasonably be withheld), and that CAC may
participate in such defense at its own expense. Except with the written
consent of CAC, Macrovision shall not consent to entry of any judgment or
enter into any settlement on behalf of CAC, its officers or directors, that
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to CAC, and any defendant officers and directors, a
release from all liability in respect to such claim or litigation.
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3. AMENDMENT OF SECTION 4 OF THE AGREEMENT. Section 4 of the Agreement
is amended to read in its entirety as follows:
4. NO EFFECT ON OTHER TRANSACTIONS. CAC's sale of Shares pursuant
to Section 3 above shall not affect in any way the rights and obligations
of Macrovision and CAC under the Recapitalization and Stock Purchase
Agreement and/or under any other agreement or agreements between the
parties hereto.
4. AMENDMENT OF SECTION 5 OF THE AGREEMENT. Section 5 of the Agreement
is amended to read in its entirety as follows:
5. SHAREHOLDER RIGHTS. Until such time as CAC sells or otherwise
transfers the Shares, CAC shall have all the rights of a shareholder of
Macrovision with respect to the Shares.
5. NO OTHER PROVISIONS AFFECTED. Except as set forth herein, the
provisions, terms and conditions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
COMMAND AUDIO CORPORATION MACROVISION CORPORATION
By: /s/ illegible By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Title: Chairman & CEO Title: Chairman & CEO
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