General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 23± 120K
2: EX-1 Joint Agreement 1 10K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 25± 103K
Liquidation or Succession -- seriesg
4: EX-3 Sixth Amendment 28± 124K
5: EX-4 Instrument Defining the Rights of Security Holders 14± 60K
6: EX-5 Opinion re: Legality 28± 118K
7: EX-6 Registration Rights Agreement 20± 78K
8: EX-7 EX-7 - Letter Agreement 1 10K
9: EX-8 Opinion re: Tax Matters 9± 40K
10: EX-9 Warrant Agreement 46± 197K
11: EX-10 5 Yr. Warrant Agreement 47± 200K
12: EX-11 Statement re: Computation of Earnings Per Share 43± 187K
13: EX-12 Indenture 98± 410K
14: EX-13 Note 13± 52K
15: EX-14 EX-14 - Five Year Warrant 9± 39K
16: EX-15 One Year Warrant 10± 41K
17: EX-16 5 Year Terminable Warrant 9± 40K
18: EX-17 Nominee Agreement 2± 12K
EX-8 — Opinion re: Tax Matters
Exhibit 8
August 28, 2001
TiVo Inc.
2160 Gold Street
P.O. Box 2160
Alviso, California 95002
Purchase of NBC Advertising Inventory
Gentlemen:
This letter sets forth the agreement (the "Letter Agreement")
between the National Broadcasting Company, Inc. ("NBC"), and TiVo Inc.
("Advertiser") with respect to NBC's agreement to provide Advertiser with
certain advertising inventory on the NBC Television Network and NBC's owned
and operated television stations (collectively, "NBC TV") and the CNBC
Cable Network ("CNBC"), in each case to promote Advertiser, subject to the
following terms and conditions:
1. Spots. (a) NBC shall provide Advertiser with advertising spots (the
"Spots") to be telecast on NBC TV and CNBC on the Dates, Days and Times
mutually agreed by NBC and Advertiser and consistent with the parameters
set forth in Schedule 2 hereto; provided, however, that in the event that
no such agreement is reached with regard to the number or value of Spots to
be broadcast in any calendar quarter or year, NBC may propose and implement
a reasonable schedule for the broadcast of Spots in accordance with the
parameters and objectives set forth in Exhibit B for the Total Spot Value
set forth in Section 2 below. An initial schedule for the remainder of the
2001 calendar year shall be determined as soon as practicable following the
date hereof. All such Spots run by Advertiser shall be subject to NBC TV's
and CNBC's standard terms and conditions for such advertising, which, in
the case of NBC TV, are described in the "Participating Sponsorship
Agreement" attached hereto as Exhibit A (the "NBC TV Standard Terms") and,
in the case of CNBC, are described in the "Standard Terms and Conditions"
attached hereto as Exhibit B (the "CNBC Standard Terms" and together with
the NBC TV Standard Terms, the "Standard Terms"). The Standard Terms are
made a part of this Letter Agreement in their entirety; provided, however,
that in the case of a conflict between the terms of this Letter Agreement
and the terms of the Standard Terms, the terms of this Letter Agreement
shall govern. For purposes of the Standard Terms, Advertiser shall be both
the "Advertiser" and the "Agency" as such terms are used therein.
(b) The Spots shall promote Advertiser, its products and services
and may not advertise, promote or mention any other product, service,
television program, web site or third party whatsoever without the prior
written consent of NBC. The telecast of all Spots is subject to the current
standards, practices and business procedures of NBC and CNBC. NBC or CNBC,
as the case may be, in its sole discretion, reserves the right to limit or
withdraw the telecast of any Spots which it, at any time and in its sole
discretion, deems unsuitable or in violation of its standards, practices
and procedures, or if the subject matter and/or presentation is considered
by NBC or CNBC, as the case may be, to be offensive, defamatory or
otherwise inappropriate or inconsistent with its advertising philosophy or
format. In addition, with respect to the placement or telecast of
Advertiser's Spots in any particular program, NBC or CNBC, as the case may
be, may reject such placement or telecast if such placement or telecast
would compete with or violate the rights of any other advertiser, sponsor
or supplier of such program or program category, as determined by NBC or
CNBC in its sole discretion and in good faith, provided that (i) NBC or
CNBC, as the case may be, shall notify the Company as promptly as
reasonably practicable in the event that any such placement or telecast
shall be rejected and (ii) no placement or telecast shall be rejected on
account of a placement by another advertiser if Advertiser's Spot has been
purchased first in time; it being further understood that NBC's aggregate
commitments set forth in Section 2 below shall not be affected by any such
rejection. To the extent any of Advertiser's Spots are displaced for any of
the foregoing reasons, NBC or CNBC, as the case may be, when determining
the placement of replacement Spots for Advertiser, shall provide Advertiser
with the most favorable treatment with respect to such displacement
afforded to other advertisers whose Spots are similarly displaced;
provided, however that neither NBC nor CNBC will be obligated to provide
Advertiser with any more favorable rates than those set forth in Section 2
below.
(c) On or before each date set forth on Schedule 1 (a "Proposal
Date"), Advertiser shall deliver to Victoria Rubin of NBC a written
proposal that includes target audiences, advertising flight dates and
designated station markets for the Spots to be telecast during the
respective Telecast Period (an "Advertiser Proposal"). Within five business
days after receiving an Advertiser Proposal, NBC shall develop a proposed
advertising telecast schedule for the respective Telecast Period based on
such information and the parameters and objectives set forth in Schedule 2
(the "Proposed Schedule") and deliver the Proposed Schedule to Advertiser.
Within three business days after the Proposed Schedule is delivered to
Advertiser (the "Response Date"), Advertiser shall deliver a written
response to the Proposed Schedule to Victoria Rubin of NBC requesting
changes in the Proposed Schedule (the "Response"). The Response shall set
forth with specificity Advertiser's requested changes in the Proposed
Schedule, including requested dates and times for the Spots. Advertiser and
NBC shall use commercially reasonable efforts for a period of five business
days following the delivery to NBC of the Response to mutually agree upon
any requested changes in the Proposed Schedule. In the event that either
(i) Advertiser and NBC are unable to mutually agree on changes in the
Proposed Schedule within such subsequent five-business-day period, or (ii)
Advertiser shall fail to deliver a Response on or before the respective
Response Date, Advertiser shall be deemed to have accepted the Proposed
Schedule and NBC shall have the right to implement the Proposed Schedule
for such Telecast Period. In the event that Advertiser shall fail to
deliver any Advertiser Proposal on or before the respective Proposal Date,
NBC shall have the right to implement a schedule for the broadcast of Spots
within such Telecast Period based on the parameters and objectives set
forth in Schedule 2, and such schedule shall be deemed accepted by
Advertiser.
(d) Advertiser shall deliver new commercial material to NBC on or
before the date two weeks prior to the beginning of each Telecast Period.
If Advertiser fails to deliver new commercial material by such date, or
such commercial material is rejected in accordance with the terms of this
Letter Agreement and Advertiser fails to deliver substituted or revised
commercial material within seven days after being notified in writing of
the rejection thereof by NBC, NBC shall (i) telecast previously delivered
commercial material of Advertiser that meets NBC's current standards and
practices or (ii) if such previously delivered commercial material is not
available, be deemed to have telecast all of Advertiser's Spots for such
Telecast Period for purposes of this Letter Agreement even if such Spots
are not actually telecast.
(e) To the extent that any Spots shall be deemed to have been
telecast by NBC, NBC shall have no liability for any failure to broadcast
such Spots and Advertiser shall have no right to either (i) require NBC to
pay Advertiser any cash amount whatsoever or (ii) require NBC to telecast
any additional Spots in replacement thereof.
2. Value of Spots. NBC shall telecast Spots with a total net spot value of
(i) Five Million Dollars (US $5,000,000) (the "2001 Spot Value") during the
period beginning on October 1, 2001 and ending on December 31, 2001 (the
"2001 Advertising Period"); (ii) Five Million Two Hundred Seventy Thousand
Dollars $5,270,000 (the "2002 Spot Value") during the period beginning on
January 1, 2002 and ending on March 31, 2002 (the "2002 Advertising Period"
and, together with the 2001 Advertising Period, the "Advertising Period")
commencing on the first telecast of an Advertiser Spot (the "Effective
Date"). For purposes of this Agreement, (i) the value of each NBC TV Spot
shall be calculated at 85% of the scatter market rate in effect at the time
such Spot is ordered and (ii) the value of each CNBC Spot shall be
calculated at 85% of the gross market rate charged by CNBC at the time the
Spot is ordered. In addition, upon the prior written consent of NBC,
Advertiser reserves the right to use any portion of the Total Spot Value to
cover program sponsorships that Advertiser may wish to purchase during the
2001 Advertising Period and the 2002 Advertising Period on terms to be
negotiated in good faith (including the incorporation of appropriate
discounts afforded in this Agreement) with NBC TV or CNBC, as the case may
be. NBC shall use commercially reasonable efforts to help Advertiser
identify sponsorship opportunities; provided, however, that neither NBC TV
nor CNBC shall have any obligation whatsoever to agree to the terms of any
sponsorships with Advertiser.
3. Payment for the Spots. Subject to the terms and conditions of this
Letter Agreement and as consideration for NBC TV and CNBC's telecast of the
Spots pursuant hereto and for certain rights granted to NBC by Advertiser
pursuant to the August 8, 2001 Amendment to the operational agreement
between the parties hereto dated April 16, 1999 (the "Operational
Agreement"):
(a) Upon execution of this Letter Agreement, and after receipt of
a cash payment in the amount of Five Million Dollars (US $5,000,000) and
pursuant to the terms and conditions of the agreement regarding notes and
warrants (the "Notes and Warrants Purchase Agreement") offered by
Advertiser to investors in Advertiser's proposed Seventy Five Million
Dollar (US $75,000,000) private placement offering (the "Private
Placement"), Advertiser shall issue NBC notes and warrants in the principal
amount of Ten Million Dollars (US $10,000,000) (the "Notes and Warrants")
pursuant to the Notes and Warrants Purchase Agreement which the Advertiser
will negotiate in good faith with the financial investors in Advertiser's
current proposed ) private placement. The terms and conditions of the Notes
and Warrants Purchase Agreement executed by NBC, including any
representations, warranties and covenants, shall be substantially similar
to those contained in the Notes and Warrants Purchase Agreement given to
the other investors in the Private Placement. Notwithstanding anything to
the contrary in this Letter Agreement, in the event that Advertiser does
not issue Notes and Warrants to investors pursuant to the terms and
conditions of the Notes and Warrants Purchase Agreement, this Letter
Agreement shall terminate without any liability whatsoever upon the return
of the aforementioned cash payment to NBC; provided that Advertiser shall
pay NBC in cash the total net spot value of any Spots telecast prior to
such termination.
(b) This Five Million Dollar (US $5,000,000) cash payment and the
Five Million Two Hundred Seventy Thousand Dollars (US $5,270,000) of
advertising inventory to be provided by NBC to Advertiser during the 2002
Advertising Period shall be Advertiser's full consideration for the
issuance of the Notes to NBC.
(c) Pursuant to the Operational Agreement, Advertiser shall
provide certain services to NBC as described therein having a value of Two
Hundred Seventy Thousand Dollars (US $270,000). In exchange for such
services, NBC shall provide Advertiser with Spots pursuant to this Letter
Agreement having a total net spot value of Two Hundred Seventy Thousand
Dollars (US $270,000).
(c) On or before October 1, 2001, Advertiser shall pay NBC the sum
of Five Million Dollars (US $5,000,000) for the advertising inventory to be
provided by NBC to Advertiser during the 2001 Advertising Period.
(d ) NBC shall provide Advertiser with a written report within 10
business days after the end of each calendar month after the Effective Date
during which Advertiser's Spots have been telecast and setting forth the
aggregate value of Advertiser's Spots telecast by NBC TV and/or CNBC in the
preceding month and any charges incurred by Advertiser pursuant to Section
4 of the NBC TV Standard Terms.
4. Representations and Warranties. NBC and Advertiser each represent and
warrant that this Letter Agreement has been duly authorized, executed and
delivered by such party and that this Letter Agreement constitutes the
legal, valid and binding obligations of such party, enforceable against it
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally or by general principles of equity.
5. Termination. (a) Notwithstanding any other remedy available to NBC, in
the event that:
(i) NBC notifies Advertiser in writing (with specificity)
that Advertiser has materially breached this Letter Agreement and
Advertiser has not cured such alleged breach within thirty (30)
days of its receipt of such notice (or if such breach is not
capable of being totally cured through Advertiser's diligent
effort within the initial thirty (30) day period and Advertiser
proceeds to cure and does in fact cure such breach within sixty
(60) days of the initial notice);
(ii) Advertiser admits in writing its inability to pay
its debts generally; makes a general assignment for the benefit of
creditors; has any proceeding instituted by or against it seeking
to adjudicate it as bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of Advertiser or its debts
under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or similar official for
it or any substantial part of its property; provided, in the case
where such proceeding is involuntarily instituted against
Advertiser, such proceeding remains undismissed after thirty (30)
days; or
(iii) The Operational Agreement is terminated for any
reason in accordance with the terms thereof,
then, in any such case, NBC shall have the right, but not
the obligation, to terminate this Letter Agreement, without any
further obligation hereunder. Notwithstanding the foregoing, the
terms contained in Sections 6, 7, 8, 9 and 10 shall survive the
termination hereof.
(b) Notwithstanding any other remedy available to Advertiser, in
the event that:
(i) Advertiser notifies NBC in writing (with specificity)
that NBC has materially breached this Letter Agreement and NBC has
not cured such alleged breach within thirty (30) days of its
receipt of such notice (or if such breach is not capable of being
totally cured through NBC's diligent effort within the initial
thirty (30) day period and NBC proceeds to cure and does in fact
cure such breach within sixty (60) days of the initial notice); or
(ii) NBC admits in writing its inability to pay its debts
generally; makes a general assignment for the benefit of
creditors; has any proceeding instituted by or against it seeking
to adjudicate it as bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of NBC or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or similar official for it or
any substantial part of its property; provided, in the case where
such proceeding is involuntarily instituted against NBC, such
proceeding remains undismissed after thirty (30) days,
then, in any such case, Advertiser shall have the right,
but not the obligation, to terminate this Letter Agreement,
without prejudice to Advertiser's legal remedies or the rights of
the parties hereunder. Notwithstanding the foregoing, the terms
contained in Sections 6, 7, 8, 9 and 10 shall survive the
termination hereof.
(c) Notwithstanding clauses (a)(i) and (b)(i) above, in the event
that a party believes in good faith that it has not breached this
Agreement, it shall so inform the other party within ten (10) days of
notice of the alleged breach, and the time periods set forth in clause
(a)(i) or (b)(i), as the case may be, shall be tolled for sixty (60) days
or such longer period as the parties may reasonably agree (the "Tolling
Period") in order to allow senior management representatives from each
party to meet to resolve the disagreement. Promptly after commencement of
the Tolling Period, the non-breaching party shall provide the breaching
party with a reasonable proposal in reasonable detail for curing the
alleged breach, and a termination right shall only occur if the breaching
party fails to comply with the terms of such proposal. The time periods set
forth in clause (a)(i) or (b)(i), as the case may be, shall resume if no
resolution is reached during the Tolling Period.
6. Miscellaneous. This Letter Agreement and the exhibits and schedules
hereto and thereto constitute the entire agreement and understanding of the
parties relating to the subject matter hereof and supersede all prior and
contemporaneous agreements, negotiations and understandings between the
parties, both oral and written relating thereto. No waiver or modification
of any provision of this Letter Agreement shall be effective unless in
writing and signed by both parties. The terms of this Letter Agreement
shall apply to parties hereto and any of their successors or assigns;
provided, however, that this Letter Agreement may not be transferred or
assigned by Advertiser, including, without limitation, the right to receive
Spots to be telecast by NBC TV and/or CNBC, without the prior written
consent of NBC, except in connection with the sale of all or substantially
all of Advertiser's assets. This Letter Agreement may be executed in
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement.
7. Governing Law. This Letter Agreement shall be governed by and construed
under the laws of the State of New York applicable to contracts fully
performed in New York.
8. Liability for Failure to Broadcast Spots. Subject to NBC's review of
Advertiser's buy, certain portions of such buy will be guaranteed on the
A25-49 demographic. In the event that any of the agreed upon advertising
impressions are not delivered during the applicable Advertising Period
("Shortfall"), such Shortfall shall not be considered a breach of this
Agreement by NBC; instead, NBC will provide Advertiser with "makegood"
advertisements in accordance with NBC's standard makegood practice which
have a total value, based on the current market value, equal to the value
of the Shortfall. If, after issuance of the Notes and Warrants pursuant to
Section 3 of this Letter Agreement , there shall occur (i) any termination
of this Letter Agreement in accordance with the terms hereof, (ii) the
bankruptcy, liquidation, insolvency or reorganization of Advertiser or
(iii) a Change of Control of Advertiser without the prior written consent
of NBC with respect to this Letter Agreement, all Spots (whether or not
actually telecast) shall be deemed to have been telecast by NBC. NBC shall
have no liability for any failure to broadcast such Spots and Advertiser
shall have no right to either (a) require NBC to pay Advertiser any cash
amount whatsoever or (b) require NBC to telecast any additional Spots.
"Change of Control" shall mean (A) any consolidation, reorganization or
merger of Advertiser with any third party, other than a transaction
resulting in the holders of the capital stock of Advertiser (prior to such
consolidation, reorganization or merger) having Control over the surviving
or resulting entity, (B) any third party (other than NBC) having Control
over Advertiser or (C) any sale, transfer or other disposition by
Advertiser of all or substantially all of its assets to any third party
(other than NBC). "Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of Advertiser, whether through ownership of voting securities,
as trustee or executor, by contract or credit arrangement or otherwise.
9. Limitation of Liability. In no event shall either party's liability
hereunder include any special, indirect, incidental or consequential Losses
or damages, even if such party shall have been advised of the possibility
of such potential Losses or damages, except in the case of willful
misconduct or fraud or in the event such damages are awarded by a court of
competent jurisdiction in a third party claim. "Losses" shall mean any
damages, liabilities, claims, judgments and expense, including reasonable
attorneys' fees.
10. Confidentiality. Neither party shall issue a press release or make any
statement to the general public concerning this Letter Agreement, the Spots
or the existence thereof, without the express prior written consent of the
other; provided, however, that Advertiser's statements as to the existence
of a business relationship with NBC in connection with the Private
Placement will not be considered to violate the confidentiality of this
Letter Agreement. In addition, either party shall be entitled to disclose
the terms of this Letter Agreement in order to comply with applicable legal
and regulatory requirements. Advertiser agrees to keep all information
provided to it by NBC regarding this Letter Agreement, the Spots, or any
other information relating thereto, highly confidential, and shall not
disclose any portion of such information without the prior written consent
of NBC.
If you are in agreement with the above terms and conditions,
please indicate your acceptance by signing in the space provided below, and
return one original to me.
Very truly yours,
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Carla Sinatra
-----------------------
Name: Carla Sinatra
Title: Vice President, Business
Development
ACCEPTED AND AGREED:
TIVO INC.
By: /s/Matthew Zinn
-------------------------
Name: Matthew Zinn
Title: Vice President and General Counsel
[SIGNATURE PAGE TO TIVO INC. ADVERTISING LETTER AGREEMENT]
Schedule 1
Proposal Dates
Telecast Period Proposal Date
2001 Advertising Period August 20, 2001
2002 Advertising Period November 20, 2001
Schedule 2
Advertiser Objectives and Parameters on Inventory
Objectives:
A. The parties agrees to negotiate in good faith to create a media schedule
that will achieve the following Advertiser marketing objectives:
1. Acquire new TiVo subscribers
2. Educate consumers on the TiVo service
3. Drive traffic to www.tivo.com
4. Build TiVo brand awareness and identity
B. The parties agree to negotiate in good faith to put together a media
schedule that will deliver the following metrics:
1. NBC will make reasonable commercial efforts to include the following in
the daypart mix:
a. A minimum of 50-60% National Primetime
b. A minimum of 20-25% National Late Night
2. Subject to NBC's review of Advertiser's buy, certain portions of such
buy may be guaranteed on the AD25-49 demographic.
3. NBC will make reasonable commercial efforts to air the agreed upon
inventory within Advertiser's requested flight dates.
4. Guaranteed CPM only as negotiated and agreed to between NBC and
Advertiser's agency and as determined by marketplace conditions.
5. Subject to inventory availability, NBC and Advertiser may begin
discussions on October 1, 2001 for 2002 Olympics advertising spots during
the 2002 Advertising Period.
Dates Referenced Herein and Documents Incorporated by Reference
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