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-14 — EX-14 – Five Year Warrant
Exhibit 14
TIVO INC.
No. FYW-17 CUSIP No. 888706 12 4
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT
IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS
SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO
THE WARRANT AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE
WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE
ISSUER AND THE WARRANT AGENT, (5) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT,
(6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO
SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN
OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A
TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY
COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT
OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A OR (2) AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902
UNDER) REGULATION S UNDER THE SECURITIES ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE
DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"),
AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION
FROM REGISTRATION UNDER THE 1933 ACT.
WARRANT CERTIFICATE
REPRESENTING 490,196 WARRANTS TO PURCHASE COMMON STOCK
This certifies that National broadcasting company, inc., or its
registered assigns, is the registered owner of four hundred ninety thousand
one hundred nintey-six (490,196) Warrants, each expiring August 28, 2006,
and each of which entitles the registered owner thereof (the
"Warrantholder") to purchase at any time prior to the expiration hereof
from TIVO INC., a Delaware corporation (the "Company"), one share of Common
Stock (the "Common Stock"), $0.001 par value per share, of the Company at
the purchase price of $7.85 per share of Common Stock (the "Exercise
Price"), subject to adjustment as provided in the Warrant Agreement
hereinafter referred to.
The Warrants evidenced by this Warrant are issued under and in
accordance with the Warrant Agreement, dated as of August 28, 2001 (the
"Warrant Agreement"), between the Company and The Bank of New York, as
warrant agent (the "Warrant Agent"), and the Registration Rights Agreement,
dated of even date therewith (the "Registration Rights Agreement"), among
the Company and the initial purchasers of the Warrants, and are subject to
the terms and provisions contained therein, to all of which terms and
provisions the holder of this Warrant consents by acceptance of this
Warrant and which Warrant Agreement and Registration Rights Agreement are
hereby incorporated by reference in and made a part of this Warrant.
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Reference is hereby made to the Warrant Agreement and the
Registration Rights Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Company and the Warrantholders. The summary of the terms of the Warrant
Agreement and the Registration Rights Agreement contained in this Warrant
is qualified in its entirety by express reference to such agreements. All
capitalized terms used but not defined in this Warrant shall have the
meanings assigned to them in the Warrant Agreement.
As provided in the Warrant Agreement, and subject to the terms and
conditions set forth therein, the Warrants shall be exercisable at any time
during the period commencing on the day after the date of the Warrant
Agreement and ending at 5:00 p.m., New York time, on August 28, 2006 (the
"Expiration Date"). This Warrant may be exercised on any Business Day on or
prior to close of business on the Expiration Date.
Any Warrant not exercised before the close of business on the
Expiration Date, or the Termination Date, as the case may be, shall become
void, and all rights of the holder under the Warrant Certificate evidencing
such Warrant and under this Agreement shall cease.
The Exercise Price and the number of shares of Common Stock
purchasable upon exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement. If any of the following events occur,
namely (i) any reclassification or change of the outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation, merger or combination of the
Company with another person as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock,
(iii) any statutory exchange, as a result of which holders of Common Stock
generally shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such Common
Stock (such transaction, a "Statutory Exchange"), (iv) any sale or
conveyance of the properties and assets of the Company as, or substantially
as, an entirety to any other person as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common
Stock, then the Company or the successor or purchasing person, as the case
may be, shall execute with the Warrant Agent a supplemental warrant
agreement providing that such Warrant shall be exercisable for the kind and
amount of shares of stock and other securities or property or assets
(including cash) receivable upon such reclassification, change,
consolidation, merger, combination, Statutory Exchange, sale or conveyance
by a holder of a number of shares of Common Stock issuable upon exercise of
such Warrants (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock available for issuance upon exercise of
all such Warrants) immediately prior to such reclassification, change,
consolidation, merger, combination, Statutory Exchange, sale or conveyance
assuming such holder of Common Stock did not exercise his rights of
election, if any, that holders of Common Stock who were entitled to vote or
consent to such transaction had as to the kind or amount of securities,
cash or other property receivable upon such consolidation, merger,
combination, Statutory Exchange, sale or conveyance (provided that, if the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, combination, Statutory Exchange, sale or conveyance
is not the same for each share of Common Stock in respect of which such
rights of election shall not have been exercised ("non-electing share"),
then for the purposes of Section 13 of the Warrant Agreement the kind and
amount of securities, cash or other property receivable upon such
consolidation, merger, combination, Statutory Exchange, sale or conveyance
for each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental warrant agreement shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for
in Section 12 of the Warrant Agreement. If, in the case of any such
reclassification, change, consolidation, merger, combination, Statutory
Exchange, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of shares of Common Stock include shares
of stock or other securities and assets of a corporation other than the
successor or purchasing person, as the case may be, in such
reclassification, change, consolidation, merger, combination, Statutory
Exchange, sale or conveyance, then such supplemental warrant agreement
shall also be executed by such other person and shall contain such
additional provisions to protect the interests of the holders of the
Warrants as the Board of Directors shall reasonably consider necessary by
reason of the foregoing. The Exercise Price for the stock and other
securities, property and assets (including cash) so receivable upon such
event shall be an amount equal to the Exercise Price immediately prior to
such event.
The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Warrants or to distribute certificates
which evidence such fractional shares. If more than one Warrant shall be
presented for exercise in full at the same time by the same holder, the
number of full shares of Common Stock which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
shares of Common Stock purchasable on exercise of all Warrants so
presented. In lieu any of fractional shares, there shall be paid to the
registered holders of Warrant Certificates at the time such Warrant
Certificates are exercised an amount in cash equal to the same fraction of
the current market value of a share of Common Stock. For purposes of this
calculation, the current market value of a share of Common Stock shall be
the Closing Price of a share of Common Stock for the Trading Day
immediately prior to the date of such exercise.
The Company covenants that it will at all times through 5:00 p.m.,
New York time, on the Expiration Date (or, if the Expiration Date shall not
be a Business Day, then on the next-succeeding Business Day) reserve, free
from preemptive rights, and keep available out of its authorized but
unissued shares or shares held in treasury or a combination thereof of
Common Stock, solely for the purpose of issue upon exercise of Warrants as
herein provided, sufficient shares of Common Stock, for issuance upon
exercise of, the Warrants from time to time as such Warrants are presented
for exercise. The Company covenants that all shares of Common Stock issued
upon exercise of Warrants shall be duly and validly issued and fully paid
and non-assessable and free from all taxes, liens and charges with respect
to the issue thereof.
The initial issuance of certificates of Common Stock upon the
exercise of Warrants shall be made without charge to the exercising
Warrantholders for any tax in respect of the issuance of such stock
certificates, and such stock certificates shall be issued in the respective
names of, or in such names as may be directed by, the registered holders of
the Warrants exercised, subject to the restrictions on transfer set forth
herein and in the Warrant Agreement; provided, however, that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such stock
certificate, any Warrant Certificates or other securities in a name other
than that of the registered holder of the Warrant Certificate surrendered
upon exercise of the Warrant, and the Company shall not be required to
issue or deliver such certificates or other securities unless and until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Subject to the terms and provisions of the Registration Rights
Agreement, the Company shall file under the Securities Act a registration
statement providing for the registration of all of the Warrants and the
shares of Common Stock issuable upon exercise thereof.
As provided in the Warrant Agreement and the Registration Rights
Agreement, the Warrantholders have additional rights and duties with
respect to the registration of the Warrants and the Common Stock issuable
upon exercise of the Warrants. A Warrantholder may be required to indemnify
and hold the Company and certain other persons harmless in connection with
written information furnished to the Company by or on behalf of such
Warrantholder specifically for use in any registration statement, or any
preliminary or final or summary Prospectus contained therein or any
amendment or supplement thereto.
By its acceptance of any Warrant represented by a Warrant
Certificate bearing a restrictive legend, each holder and beneficial owner
of such a Warrant acknowledges the restrictions on transfer of such a
Warrant set forth in such legend and agrees that it will transfer such a
Warrant only in accordance with such legend.
Subject to the restrictions on transfer set forth herein and in
the Warrant Agreement, this Warrant and all rights hereunder are
transferable by the registered Warrantholder hereof, in whole or in part,
on the Warrant register, upon surrender of this Warrant Certificate duly
endorsed, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Warrant Agent duly executed, with
signatures guaranteed as specified in the attached "Form of Assignment," by
the registered Warrantholder hereof or his attorney duly authorized in
writing and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer. Upon any partial transfer,
the Company will issue and the Warrant Agent will countersign and deliver
to such Warrantholder a new Warrant Certificate or Warrant Certificates
with respect to any portion not so transferred. Each taker and holder of
this Warrant, by taking and holding the same, consents and agrees that
prior to the registration of transfer as provided in the Warrant Agreement,
the Company and the Warrant Agent may treat the person in whose name the
Warrants are registered as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby, any notice
to the contrary notwithstanding.
This Warrant Certificate may be exchanged at the office of the
Warrant Agent for Warrant Certificates representing the same aggregate
number of Warrants, each new Warrant Certificate to represent such number
of Warrants as the holder hereof shall designate at the time of such
exchange.
Prior to the exercise of the Warrants represented hereby, the
holder of this Warrant shall not be entitled, as such, to any rights of a
stockholder of the Company, including, without limitation, the right to
vote or to consent to any action of the stockholders of the Company, to
receive dividends or other distributions, to exercise any preemptive right
or to receive any notice of meetings of stockholders of the Company, and
shall not be entitled to receive any notice of any proceedings of the
Company except as provided in the Warrant Agreement.
Copies of the Warrant Agreement are on file at the office of the
Warrant Agent and may be obtained by writing to the Warrant Agent at the
following address:
The Bank of New York
101 Barclay Street, Floor 21W
New York, NY 10286
Attention: Corporate Trust Administration
THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION,
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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This Warrant shall not be valid for any purpose until it shall
have been countersigned by the Warrant Agent.
TIVO INC.
By: /s/ Michael Ramsay
-----------------------------
Name: Michael Ramsay
Title: President and Chief Executive Officer
Attest:
By: /s/ David H. Courtney
-------------------------
Name: David H. Courtney
Title: Senior Vice President, Finance
and Administration and Chief Financial Officer
Countersigned:
THE BANK OF NEW YORK
as Warrant Agent
By: /s/ Michael Pitfick
-------------------------
Authorized Signatory
Dated: August 28, 2001
EXERCISE FORM
(To be executed only upon exercise of Warrant)
The undersigned registered holder of a Warrant Certificate
representing __________ Warrants irrevocably elects to exercise __________
of the Warrants represented by the Warrant Certificate for the purchase of
one share (subject to adjustment as set forth in the Warrant Agreement) of
Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so
exercised, and herewith
|_| makes payment of $__________ (such payment being in cash or by
certified or official bank check payable to the order or at the direction
of TiVo Inc.),
|_| tenders $_______ principal amount of the Company's 7%
Convertible Senior Notes due 2006, plus payment of $__________ (such
payment being in cash or by certified or official bank check payable to the
order or at the direction of TiVo Inc.),
|_| elects to make a "Cashless Exercise" of such Warrants as
provided in Section 10(b) of the Warrant Agreement,
all at the exercise price and on the terms and conditions specified in the
Warrant and the Warrant Agreement therein referred to, and surrenders all
of its right, title and interest in the number of Warrants exercised herein
to TiVo Inc., and directs that the shares of Common Stock or other
securities or property deliverable upon the exercise of such Warrants, and
any Warrant Certificate or interests in the Warrant representing
unexercised Warrants, be registered or placed in the name and at the
address specified below and delivered thereto.
Dated:
---------------------------------
(Signature of Warrantholder)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------------
This form must be delivered to the Warrant Agent at the Corporate Office,
which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y.
10286, Attention: Corporate Trust Administration. Copies of this form must
be sent by facsimile to TiVo Inc., attention General Counsel ((650)
519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600).
1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO:
IF IN CERTIFICATED FORM:
Social Security Number or identifying number:
Name:
-------------------------------------------------------------
Street Address:
---------------------------------------------------
City, State and Zip Code:
-----------------------------------------
IF IN BOOK-ENTRY FORM THROUGH DTC:
ACCOUNT NUMBER:
---------------------------------------------------
ACCOUNT NAME:
-----------------------------------------------------
ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN
THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO:
Social Security Number or identifying number:
Name:
-------------------------------------------------------------
Street Address:
---------------------------------------------------
City, State and Zip Code:
-----------------------------------------
FORM OF ASSIGNMENT AND TRANSFER
FOR VALUE RECEIVED the undersigned registered holder of the within
Warrant Certificate hereby sells, assigns and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the within
Warrant Certificate not being assigned hereby) all of the right of the
undersigned under the within Warrant Certificate, with respect to the
number of Warrants set forth below:
[Download Table]
Social Security
Number Number or Other
Name of Assignees Address of Warrants Identifying Number
and does hereby irrevocably constitute and appoint ____________________,
the undersigned's attorney, to make such transfer on the books of TiVo Inc.
maintained for the purpose, with full power of substitution in the
premises.
In connection with any transfer occurring within two years (or
such longer or shorter holding period required under Rule 144(k) of the
Securities Act) of the original issuance of such Warrant (unless such
Warrant is being transferred pursuant to a registration statement that has
been declared effective under the Securities Act), the undersigned confirms
that such Warrant is being transferred:
|_| *To TiVo Inc. or a subsidiary thereof; or
|_| *Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
|_| *To an Institutional Accredited Investor pursuant to and
in compliance with the Securities Act of 1933, as
amended; or
|_| *To an Individual Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended;
or
|_| *In an offshore transaction pursuant to and in compliance
with Regulation S under the Securities Act of 1933, as
amended; or
|_| *Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such
Warrant is not being transferred to an "affiliate" of the Company as
defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
|_| *The transferee is an Affiliate of the Company.
Dated:
-----------------------------------
(Signature of Warrantholder)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
-----------------------------------
Dates Referenced Herein and Documents Incorporated by Reference
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