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▇▇▇▇, ▇▇▇▇▇▇▇ AND UNIT PURCHASE AGREEMENT
TiVo Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned (the "Investor"), hereby confirms its agreement with you as
follows:
1. This Note, Warrant and Unit Purchase Agreement (the "Agreement") is made
as of the date set forth below between TiVo Inc., a Delaware corporation
(the "Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to $51,750,000
aggregate principal amount of 7% Convertible Senior Notes due 2006 (each a
"Note"), 2,536,766 warrants (each a "Five-Year Warrant") to purchase one
share of TiVo common stock, par value $.001 per share (the "Common Stock")
and 3,843,582 units (each a "Unit"), each consisting of (a) one warrant
(each a "One-Year Warrant") to purchase one share of Common Stock and one
warrant (each a "Five-Year Terminable Warrant" and, together with the
Five-Year Warrants and the One-Year Warrants, the "Warrants"; the Notes and
the Warrants are hereinafter referred to as the "Securities") to purchase
..33 of a share of Common Stock, to certain investors in a private placement
(the "Offering"). ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sutro Capital Markets, Inc. are acting as the exclusive
placement agents (the "Placement Agents") in the offering of the
Securities. The Notes are being issued pursuant to an Indenture, dated as
of August 28, 2001 (the "Indenture") by and between the Company and The
Bank of New York, as trustee (the "Trustee"). The Five-Year Warrants are
being issued pursuant to a Warrant Agreement, dated as of August 28, 2001
(the "Five-Year Warrant Agreement") by and between the Company and The Bank
of New York, as warrant agent (the "Warrant Agent"). The One-Year Warrants
are being issued pursuant to a Warrant Agreement, dated as of August 28,
2001 (the "One-Year Warrant Agreement") by and between the Company and The
Bank of New York, as warrant agent. The Five-Year Terminable Warrants are
being issued pursuant to a Warrant Agreement, dated as of August 28, 2001
(the "Five-Year Terminable Warrant Agreement," and together with the
Five-Year Warrant Agreement and the One-Year Warrant Agreement, the
"Warrant Agreements") by and between the Company and The Bank of New York,
as warrant agent.
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will sell to the Investor $10,000,000.00
principal amount of Notes, 490,196 Five-Year Warrants to purchase one share
of Common Stock (which number of Five-Year Warrants shall be equal to
49.0196 shares per $1,000 principal amount of Notes purchased by Investor
hereunder) and 742,721 Units (which number of Units shall be equal to
74.2721 Units per $1,000 principal amount of Notes purchased by Investor
hereunder), for an aggregate purchase price of $ 10,000,000.00 (the
"Purchase Price"), pursuant to the Terms and Conditions for Purchase of
Securities attached hereto as Annex I and incorporated herein by this
reference as if fully set forth herein. The Purchase Price shall be
satisfied in the following manner: $5,000,000 in cash and $5,000,000 in
broadcast and cable television advertising inventory on Investor's network
pursuant to the terms and conditions of the Letter Agreement, dated as of
the date hereof, between the Company and the Investor. The Company and the
Investor agree that the fair value to the Company of the advertising
inventory described above for which Securities will be issued is not less
than $5,000,000. The Securities sold to Investors will be evidenced by
certificated securities registered in the names of such Investors as more
fully described in Annex I attached hereto.
4. All transferees of the Securities and the Common Stock into which the
Securities are convertible or exercisable shall be bound by the transfer
restrictions set forth herein and in the Indenture and the Warrant
Agreements.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
Dated as of: August 16, 2001
NATIONAL BROADCASTING COMPANY, INC.
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"INVESTOR"
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Print Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title:Executive Vice President
Address:30 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
AGREED AND ACCEPTED:
TIVO INC.
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance and
Adminstration and Chief Financial Officer
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SECURITIES
1. Authorization and Sale of the Securities. Subject to the terms
and conditions of this Agreement, the Company has authorized the sale of
the Securities.
2. Agreement to Sell and Purchase the Securities; Subscription
Date.
2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon
the terms and conditions hereinafter set forth, the number of Securities
set forth on the first page of the Agreement (the "First Page") to which
these Terms and Conditions for Purchase of Securities are attached as Annex
I at the purchase price set forth on such First Page (the "Purchase
Price").
2.2 The Company may enter into this same form of Agreement (except
as to the form of consideration) with certain other investors (the "Other
Investors") and may complete sales of Securities to them. (The Investor and
the Other Investors are hereinafter sometimes collectively referred to as
the "Investors," and this Agreement and the Agreements executed by the
Other Investors are hereinafter sometimes collectively referred to as the
"Agreements.") The Company will accept executed Agreements from the
Investors for the purchase of Securities commencing upon the date on which
the Company provides the Investors with the proposed purchase price for the
Securities and concluding upon the date (the "Subscription Date") on which
the Company has notified ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., on behalf of the
Placement Agents, in writing that it is no longer accepting Agreements from
Investors for the purchase of Securities.
2.3 On August 24, 2001, Investor will wire in same-day funds the
Purchase Price into an escrow account (the "Escrow Account"). The Escrow
Account will be governed by an escrow agreement dated the date hereof
(substantially in the form of Exhibit D hereto, the "Escrow Agreement") by
and among the Company, the Investors and the escrow agent named therein.
The funds held in the Escrow Account will be released as specified in the
Escrow Agreement.
2.4 Investor acknowledges that the Company intends to pay the
Placement Agents a fee in respect of the sale of the Securities to the
Investor and a financial advisor a fee in connection with the completion of
the Offering. Each of the parties hereto represents that, on the basis of
any actions and agreements by it, there are no other brokers or finders
entitled to compensation in connection with the sale of the Securities to
the Investor.
3. Closing. The completion of the purchase and sale of the
Securities (the "Closing") shall occur at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other place to be specified by the Company and the Placement Agents, and at
such time (the "Closing Date") as the Investors will be notified in advance
by the Placement Agents. The Notes sold to Investors will be evidenced by
certificated securities and will be mailed to such Investors by overnight
courier on the Closing Date to each such Investor's address set forth on a
First Page hereto. Copies of such certificated Notes will be sent via
facsimile to such Investors on the Closing Date. The Notes will be
imprinted with a legend that prohibits their transfer except in accordance
therewith. The Notes sold to or held by "affiliates" of the Company (as
defined in Rule 501(b) of Regulation D under the Securities Act,
"Affiliates") may be imprinted with an additional legend that prohibits
their transfer except in accordance therewith. The Warrants sold to
Investors will be evidenced by certificated securities and will be mailed
to such Investors by overnight courier on the Closing Date. Copies of such
certificated Warrants will be sent via facsimile to such Investors on the
Closing Date. The Warrants will be imprinted with a legend that prohibits
their transfer except in accordance therewith. The Warrants sold to or held
by Affiliates may be imprinted with an additional legend that prohibits
their transfer except in accordance therewith.
The Company's obligation to issue the Securities to the Investor
shall be subject to the following conditions, any one or more of which may
be waived by the Company: (a) the tender to the Company of the Purchase
Price; (b) Investors shall have tendered to the Company the aggregate
purchase price for at least $40,000,000 of Securities in cash; (c) receipt
by the Company of completed versions of Exhibit A and Exhibit B attached
hereto from each Investor; (d) the accuracy of the representations and
warranties made by the Investors and the fulfillment of those undertakings
of the Investors to be fulfilled prior to the Closing; (e) the execution
and delivery by each of the Investors of the Registration Rights Agreement,
dated as of August 28, 2001 (the "Registration Rights Agreement"); (f) the
execution and delivery by the Trustee of the Indenture; (g) the execution
and delivery by the Warrant Agent of each Warrant Agreement; and (h) no
material controversy involving any of the Company's stockholders with
respect to the Offering shall have arisen such that The Nasdaq Stock Market
does not permit the issuance of the Securities without the approval of the
Company's stockholders at a stockholder meeting.
The Investor's obligation to purchase the Securities shall be
subject to the following conditions, any one or more of which may be waived
by the Investor: (a) Investors shall have executed Agreements for the
purchase of at least $40,000,000 principal amount of Notes and Warrants and
shall have tendered to the Company for the purchase of the Securities at
least $40,000,000 in cash; (b) the representations and warranties of the
Company set forth herein shall be true and correct in all material
respects; (c) the fulfillment of those undertakings of the Company to be
fulfilled prior to the Closing, including delivery of the opinion of
counsel required by Section 4.17 hereof; (d) the execution and delivery by
the Company and each of the Investors of the Registration Rights Agreement;
(e) the execution and delivery by the Company and the Trustee of the
Indenture; (f) the execution and delivery by the Company and the Warrant
Agent of each Warrant Agreement; and (g) no material controversy involving
any of the Company's stockholders with respect to the Offering shall have
arisen such that The Nasdaq Stock Market does not permit the issuance of
the Securities without the approval of the Company's stockholders at a
stockholder meeting.
4. Representations, Warranties and Covenants of the Company.
Except as otherwise described in the private placement memorandum, dated
August 16, 2001, delivered to the Investors (including the documents
incorporated by reference therein and the documents attached as exhibits
thereto (the "Memorandum"), in the Company's periodic reports on Forms 10-Q
and 10-K, in the Company's definitive proxy statement on Form 14A and in
the Company's current reports on Form 8-K as filed by the Company with the
Securities and Exchange Commission in 2001 (the "SEC Documents"), and in
the Company's press releases dated April 5, 2001 and July 10, 2001
(collectively, including the documents incorporated by reference therein,
the "Company Information"), which qualify the following representations and
warranties in their entirety, the Company hereby represents and warrants
to, and covenants with, the Investor, as follows:
4.1 Organization. The Company is duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
organization. The Company has full power and authority to own, operate and
occupy its properties and to conduct its business as presently conducted
and is registered or qualified to do business and in good standing in each
jurisdiction in which it owns or leases property or transacts business and
where the failure to be so qualified would have a material adverse effect
upon the business, financial condition, properties or operations of the
Company and its subsidiary, taken as a whole ("Material Adverse Effect"),
and no proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power
and authority or qualification.
4.2 Due Authorization. The Company has all requisite power and
authority to execute, deliver and perform its obligations under the
Agreements, the Indenture, the Notes, the Warrant Agreements, the Warrants
and the Registration Rights Agreement (the "Operative Documents") and the
Operative Documents have been duly authorized and validly executed and
delivered by the Company and (assuming the due authorization, execution and
delivery of each Operative Document by the other parties thereto)
constitute legal, valid and binding agreements of the Company enforceable
against the Company in accordance with their terms, except as rights to
indemnity and contribution may be limited by state or federal securities
laws or the public policy underlying such laws, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' and contracting parties'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4.3 Non-Contravention. The execution and delivery of the
Agreements, the issuance and sale of the Securities to be sold by the
Company under the Agreements, the issuance by the Company of shares of
Common Stock upon conversion of the Notes and exercise of the Warrants (the
"Shares"), the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A) conflict
with or constitute a violation of, or default (with the passage of time or
otherwise) under, (i) any material bond, debenture, note or other evidence
of indebtedness, or any material lease, contract, indenture, mortgage, deed
of trust, loan agreement, joint venture or other agreement or instrument to
which the Company is a party or by which it or its property is bound, where
such conflict, violation or default is likely to result in a Material
Adverse Effect, (ii) the charter, by-laws or other organizational documents
of the Company, or (iii) any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or authority
binding upon the Company or its property, where such conflict, violation or
default is likely to result in a Material Adverse Effect, or (B) result in
the creation or imposition of any lien, encumbrance, claim, security
interest or restriction whatsoever upon any of the material properties or
assets of the Company or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or any material
indenture, mortgage, deed of trust or any other agreement or instrument to
which the Company is a party or by which it is bound or to which any of the
property or assets of the Company is subject. No consent, approval,
authorization or other order of, or registration, qualification or filing
with, any regulatory body, administrative agency, or other governmental
body in the United States is required for the execution and delivery of the
Agreements, the valid issuance and sale of the Securities and the issuance
of the Shares issuable upon conversion and exchange thereof, other than
such as have been made or obtained, and except for any securities filings
required to be made under federal or state securities laws.
4.4 Capitalization. Except for any shares, options, or shares
issuable upon exercise of options issued pursuant to employee benefit plans
disclosed in the Company's SEC Documents, the capitalization of the Company
is as described in the Company's SEC Documents. The Securities have been
duly authorized, and when issued and paid for in accordance with the terms
of the Agreements, will be duly and validly issued and fully paid. The
Shares have been duly authorized, and when issued and paid for in
accordance with the terms of the Securities, will be duly and validly
issued, fully paid and nonassessable. The outstanding shares of capital
stock of the Company have been duly and validly issued and are fully paid
and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. Except as
set forth in or contemplated in the Memorandum or in the Company's SEC
Documents, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any unissued shares of capital stock
or other equity interest in the Company, or any contract, commitment,
agreement, understanding or arrangement of any kind to which the Company is
a party and relating to the issuance or sale of any capital stock of the
Company, any such convertible or exchangeable securities or any such
rights, warrants or options. Except as disclosed in the Memorandum or the
Company's SEC Documents, there are no stockholders agreements, voting
agreements or other similar agreements with respect to the Common Stock to
which the Company is a party.
4.5 Legal Proceedings. There is no material legal or governmental
proceeding pending to which the Company is a party or of which the business
or property of the Company is subject that is not disclosed in the
Memorandum or Company's SEC Documents.
4.6 No Violations. The Company is not in violation of its charter,
bylaws or other organizational document, or in violation of any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company, which
violation, individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect, or is in default (and there exists no
condition which, with the passage of time or otherwise, would constitute a
default) in the performance of any material bond, debenture, note or any
other evidence of indebtedness in any indenture, mortgage, deed of trust or
any other material agreement or instrument to which the Company is a party
or by which the Company is bound or by which the property of the Company is
bound, which would be reasonably likely to have a Material Adverse Effect.
4.7 Governmental Permits, Etc. The Company has all necessary
franchises, licenses, certificates and other authorizations from any
foreign, federal, state or local government or governmental agency,
department or body that are currently necessary for the operation of the
business of the Company as currently conducted except where the failure to
currently possess could not reasonably be expected to have a Material
Adverse Effect.
4.8 Intellectual Property. (i) The Company owns or possesses
adequate rights to use all patents, patent rights, inventions, trade
secrets, know-how, trademarks, service marks, trade names, copyrights or
other information (collectively, "Intellectual Property") which are
necessary to conduct its businesses as now or as proposed to be conducted
by it as described in the SEC Documents, except where the failure to
currently own or possess would not have a Material Adverse Effect, (ii) the
Company has not received any notice of, and has no knowledge of, any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, could reasonably be expected
to have a Material Adverse Effect, and (iii) to the Company's knowledge,
none of the patent rights owned or licensed by the Company are
unenforceable or invalid.
4.9 Financial Statements. The financial statements of the Company
and the related notes contained in the Company's SEC Documents present
fairly, in accordance with generally accepted accounting principles, the
financial position of the Company as of the dates indicated, and the
results of its operations and cash flows for the periods therein specified,
subject, in the case of unaudited financial statements for interim periods,
to normal year-end audit adjustments. Such financial statements (including
the related notes) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
therein specified, except as disclosed in the Company's SEC Documents and
except that unaudited financial statements may not contain all footnotes
required by generally accepted accounting principles.
4.10 No Material Adverse Change. Since April 30, 2001, there has
not been any loss or damage (whether or not insured) to the physical
property of the Company which has been sustained which has a Material
Adverse Effect.
4.11 Nasdaq Compliance. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on the Nasdaq
National Market (the "Nasdaq Stock Market"), and the Company has taken no
action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the Nasdaq Stock Market. The Company has received written
confirmation from the Nasdaq Stock Market, Inc. that, with respect to the
Offering, the Company has satisfied its obligations under the shareholder
approval requirements of the Nasdaq Stock Market's Marketplace Rules.
4.12 Reporting Status. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), during the 12 months
preceding the date of this Agreement. The following documents complied in
all material respects with the SEC's requirements as of their respective
filing dates, and the information contained therein as of the respective
dates thereof did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under where
they were made, not misleading:
(a) The Company's amended and restated annual report on Form 10-K
for the year ended December 31, 2000, filed on April 9, 2001 (the
"10-K/A");
(b) The Company's transition report on Form 10-K for the one-month
transition period ended January 31, 2001, filed on April 30, 2001 (the
"10-K")
(c) The Company's quarterly report on Form 10-Q for the quarter
ended April 30, 2001, filed on June 14, 2001;
(d) The Company's current reports on Form 8-K, filed on February
1, 2001, February 14, 2001, February 28, 2001, March 15, 2001, March 19,
2001 and July 24, 2001; and
(e) The Company's proxy statement for the 2001 annual meeting of
stockholders, filed on April 30, 2001 (excluding the performance graph, the
Compensation Committee Report and the Audit Committee Report contained
therein).
4.13 Listing. The Company shall comply with all requirements of
the National Association of Securities Dealers, Inc. with respect to the
issuance of the Securities and the listing of the Shares on the Nasdaq
Stock Market.
4.14 Foreign Corrupt Practices. Neither the Company nor, to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, have (i) directly or indirectly, used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or made
by any person acting on its behalf and of which the Company is aware in
violation of law or (iv) violated in any material respect any provision of
the Foreign Corrupt Practices Act of 1977, as amended.
4.15 No Manipulation of Stock. The Company has not taken and will
not, in violation of applicable law, take, any action outside the ordinary
course of business designed to or that might reasonably be expected to
cause or result in unlawful manipulation of the price of the Common Stock
to facilitate the sale or resale of the Shares.
4.16 Transfer Taxes. On the Closing Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Securities to be sold to the
Investor hereunder will be, or will have been, fully paid or provided for
by the Company and all laws imposing such taxes will be or will have been
fully complied with.
4.17 Legal Opinion. The Company shall cause to be delivered to the
Investors and the Placement Agents by counsel to the Company a legal
opinion substantially in the form attached hereto as Exhibit C.
4.18 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of the Investors in the Agreements, it is
not necessary to register the Securities or the Shares under the Securities
Act of 1933, as amended (the "Securities Act"). The Five-Year Warrants are
not of the same class (within the meaning of Rule 144A under the Securities
Act) as securities of the Company listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system. Neither the Company nor any of its
Affiliates has (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security which is or could be
integrated with the sale of the Securities or the Shares or (ii) engaged in
any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) in connection with the
offering of the Securities or the Shares or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act.
The Company shall comply with all applicable laws, including the Securities
Act, and any applicable state securities laws in connection with the offer
and sale of the Shares and other securities and property deliverable, (i)
upon conversion of the Notes and (ii) upon exercise of the Warrants.
4.19 Accountants. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which has expressed its
opinion with respect to the financial statements set forth in the 10-K/A
and the 10-K, are independent accountants as required by the Securities Act
and the rules and regulations promulgated thereunder (the "Rules and
Regulations").
4.20 Contracts. The contracts described in the SEC Documents or
attached as exhibits thereto that are material to the Company are in full
force and effect on the date hereof, and neither the Company nor, to the
Company's knowledge, any other party to such contracts is in breach of or
default under any of such contracts which breach or default would have a
Material Adverse Effect.
4.21 Taxes. The Company has filed all necessary federal, state and
foreign income and franchise tax returns due prior to the date hereof and
has paid or accrued all taxes shown as due thereon, and the Company has no
knowledge of a tax deficiency which has been or might be asserted or
threatened against it which could reasonably be expected to have a Material
Adverse Effect.
4.22 Investment Company. The Company is not an "investment
company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for an investment company, within the meaning of the
Investment Company Act of 1940, as amended.
4.23 Insurance. The Company maintains and will continue to
maintain insurance of the types and in the amounts that the Company
reasonably believes is adequate for its business, all of which insurance is
in full force and effect.
4.24 Reports. The Company shall file the reports required to be
filed by it under the Exchange Act, including the rules, regulations and
polices adopted by the Commission thereunder, in a timely manner in
accordance with the requirements of the Exchange Act, and if at any time
the Company is not required to file such reports, the Company shall (i)
upon the request of any holder of the Five-Year Warrants, make available
such information as necessary to permit sales of such Five-Year Warrants
pursuant to Rule 144A under the Securities Act and (ii) upon the request of
any holder of the Notes, the One-Year Warrants or the Five-Year Terminable
Warrants, make available the same information as provided to a holder of
Five-Year Warrants pursuant to the preceding clause (i).
4.25 Listing of Warrants on The Nasdaq Stock Market. The Company
shall use its reasonable best efforts to apply for listing of the Warrants
on The Nasdaq Stock Market if (i) the Company has received a written
request to so list the Warrants from the holders of at least an aggregate
of 25% of the Warrants outstanding as of the date of original issuance and
such request contains a covenant that such holders shall reimburse,
severally and not jointly, the Company for all fees and expenses, including
reasonable attorneys' fees, that the Company reasonably incurs in
connection therewith; (ii) at the time of the receipt of such request and
at the time of such listing, the Warrants qualify for designation as a
Nasdaq National Market or Nasdaq Small Cap Market security that may be
listed on The Nasdaq National Market or The Nasdaq Small Cap Market,
respectively; and (iii) the Company determines, at the time of the receipt
of such request and at the time of such listing, that it can so list the
Warrants in compliance with the rules and regulations of the Securities and
Exchange Commission.
4.26 Disclosure. The Memorandum, as of its date and as of the date
hereof, does not, and, as of the Closing Date, will not, contain an untrue
statement of a material fact or an omission to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
4.27 No Trigger of Antidilution Provisions. None of the execution,
delivery or performance of this Agreement by the Company will trigger any
antidilution adjustment with respect to the exercise or conversion price of
any securities of the Company outstanding as of the date hereof.
5. Representations, Warranties and Covenants of the Investor.
5.1 The Investor represents and warrants to, and covenants with,
the Company that: (i) the Investor has reviewed the Memorandum, the Notes,
the Indenture, the Warrant Agreements, and the Registration Rights
Agreement, together with the Investor's professional advisors, if any; (ii)
the Investor has had an opportunity to ask the Company's representatives
questions regarding the offering and receive answers from the Company;
(iii) the Investor has been afforded an opportunity to request from the
Company, and to review, all additional information the Investor considered
to be necessary to verify the accuracy of or to supplement the information
in the Memorandum; (iv) the Investor is either (a) an institutional
"accredited investor" (as defined under Rule 501(a) (1), (2), (3), or (7)
of Regulation D under the Securities Act) or (b) an individual "accredited
investor" (as defined under Rule 501(a)(5) or (6) of Regulation D under the
Securities Act), and the Investor is also knowledgeable, sophisticated and
experienced in making and is qualified to make decisions with respect to,
investments in securities presenting an investment decision like that
involved in the purchase of the Securities and the Shares, including
investments in securities issued by comparable companies; (v) by reason of
the Investor's business or financial experience, or that of the Investor's
financial advisor, Investor is capable of evaluating the merits and risks
of an investment in the Securities and the Shares and of protecting the
Investor's own interests in connection with the transaction; (vi) the
Investor has adequate means to provide for the Investor's financial needs
with no expectation of a return on the Investor's investment, including a
complete loss of the investment; (vii) the Investor understands that the
Securities and the Shares have not been registered under the Securities Act
and may not be resold unless they are so registered or unless an exemption
from registration is available; (viii) the Investor is acquiring the
Securities for Investor's own account, for investment only and not with a
view toward their distribution within the meaning of the Securities Act;
(ix) the Investor will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Securities or Shares
except in compliance with the Securities Act, applicable state securities
laws and the respective rules and regulations promulgated thereunder; (x)
the Investor has answered all questions on the first page of the Agreement,
the Securities Questionnaire attached hereto as Exhibit A and Selling
Securityholder Notice and Questionnaire attached hereto as Exhibit B, and
the answers thereto are true and correct as of the date hereof and will be
true and correct as of the Closing Date; (xi) the Investor will notify the
Company immediately of any change in any of such information in the
Securities Questionnaire or the Selling Securityholder Notice and
Questionnaire until such time as the Registration Statement is declared
effective; and (xii) the Investor has, in connection with its decision to
purchase the number of Securities set forth on the first page of the
Agreement, relied only upon the Company Information provided to the
Investor by the Company in contemplation of this offering and the
representations and warranties of the Company contained herein. Investor
understands that its acquisition of the Securities and the Shares has not
been registered under the Securities Act, or registered or qualified under
any state securities law in reliance on specific exemptions therefrom,
which exemptions may depend upon, among other things, the bona fide nature
of the Investor's investment intent as expressed herein.
The Investor acknowledges, represents and agrees that if it resells or
transfers the Securities or the Shares, it will do so only:
(a) to the Company or any of its subsidiaries;
(b) with respect to the Five-Year Warrants and, in the event the
Shares become eligible for resale or transfer under Rule 144A under the
Securities Act, the Shares, to a qualified institutional buyer in
compliance with Rule 144A;
(c) to an accredited investor (as defined in Rule 501(a)(1), (2),
(3), (5), (6) or (7) of Regulation D under the Securities Act) that, prior
to such transfer, furnishes (i) to the Trustee, as registrar for the Notes,
a signed letter substantially in the form of Exhibit B to the Indenture,
(ii) to the Warrant Agent, as registrar for the Warrants, a signed letter
substantially in the form of Exhibit B to the each of the Warrant
Agreements, or, as applicable, (iii) to the transfer agent for the
Company's Common Stock, a signed letter substantially in the form provided
by such transfer agent, each containing certain representations and
agreements relating to the restrictions on transfer of the Securities and
Shares;
(d) outside the United States in compliance with Rule 904 under
the Securities Act;
(e) in accordance with the exemption from registration provided by
Rule 144 under the Securities Act;
(f) in accordance with another valid exemption from the
registration requirements of the Securities Act; or
(g) in accordance with a registration statement that has been
declared effective under the Securities Act and which continues to be
effective at the time of such transfer.
The Investor agrees that, prior to such transfer, it will furnish to the
Company, and the Trustee, the Warrant Agent or the Transfer Agent, as
applicable, an opinion of counsel if the Company 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 the Investor of
the Securities or the Shares 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.
5.2 The Investor acknowledges, represents and agrees that it will,
and each subsequent holder will be required to, give each person to whom it
transfers Securities or Shares notice of any restrictions on transfer of
such Securities or Shares, if then applicable.
5.3 The Investor acknowledges, represents and agrees that no
action has been or will be taken in any jurisdiction outside the United
States by the Company or the Placement Agents that would permit an offering
of the Securities and the Shares, or possession or distribution of offering
materials in connection with the issuance of the Securities and the Shares,
in any jurisdiction outside the United States where action for that purpose
is required. Each Investor outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Securities and Shares or has in its
possession or distributes any offering material, in all cases at its own
expense. The Placement Agents are not authorized to make any representation
or use any information in connection with the issue, placement, purchase
and sale of the Securities and the Shares other than the Memorandum and the
documents incorporated therein by reference.
5.4 The Investor hereby covenants with the Company not to make any
sale of (i) the Securities without complying with the provisions of this
Agreement, the Registration Rights Agreement, the Indenture and the Warrant
Agreements, as applicable, and without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied, and (ii) the
Shares without complying with the provisions of this Agreement, the
Registration Rights Agreement, the Indenture and the Warrant Agreements, as
applicable, and without effectively causing the prospectus delivery
requirement under the Securities Act to be satisfied, and the Investor
acknowledges that the Securities and Shares will be imprinted with a legend
that prohibits their transfer except in accordance therewith. The Investor
acknowledges that, pursuant to the provisions of the Registration Rights
Agreement, there may occasionally be times when the Company, based on the
advice of its counsel, determines that it must suspend the use of the
Prospectus forming a part of the Registration Statement until such time as
an amendment to the Registration Statement has been filed by the Company
and declared effective by the SEC or until the Company has amended or
supplemented such Prospectus.
5.5 The Investor acknowledges and agrees that, in compliance with
the Warrant Agreements, except in the case of a "Cashless Exercise" of the
Five-Year Warrants or the Five-Year Terminable Warrants that is in
compliance with Section 3(a)(9) of the Securities Act and that is pursuant
to Section 10(b) of the Five-Year Warrant Agreement or the Five-Year
Terminable Warrant Agreement, as applicable, or in the case such Securities
were sold pursuant to an effective shelf registration statement covering
such Securities, until the end of the holding period under Rule 144(k) of
the Securities Act, unless otherwise agreed by the Company in writing, in
order to exercise the Warrants for Shares of Common Stock, such holder
must, among other things, execute and deliver a letter for the benefit of
the Company, substantially in the form included as Exhibit B to each of the
Warrant Agreements.
In compliance with the Indenture (with respect to Shares issued
upon the conversion of Notes) or the Warrant Agreements (with respect to
Shares issued upon exercise of Warrants), until the end of the holding
period under Rule 144(k) of the Securities Act, unless otherwise agreed by
the Company in writing, if a holder proposes to sell or transfer Shares
other than pursuant to Section 5.1(g) above (unless such Shares have been
issued pursuant to a valid exemption from the registration requirements
under the Securities Act upon conversion of Notes or exercise of Warrants
that have been transferred pursuant to Section 5.1(g) above), such
purchaser or transferee must execute and deliver a letter for the benefit
of the Company, substantially in the form included as Exhibit B to the
Indenture, if such Shares were issued upon conversion of Notes, or
substantially in the form included as Exhibit B to the appropriate Warrant
Agreement, if such Shares were issued upon exercise of the Warrants.
In addition to the foregoing, the Investor acknowledges and agrees
that, prior to any such exercise or transfer described in this Section 5.5,
it will furnish to the Company, and the Trustee, Warrant Agent or the
Transfer Agent, as applicable, an opinion of counsel if the Company 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
exercise by the Investor of the Warrants or transfer by the Investor of the
Shares 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.
5.6 The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority
and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and
(ii) this Agreement constitutes a valid and binding obligation of the
Investor enforceable against the Investor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
and contracting parties' rights generally and except as enforceability may
be subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
except as the indemnification agreements of the Investors herein may be
legally unenforceable.
5.7 The Investor's purchase of the Securities is based on the
Memorandum and discussions with the Company and the Placement Agents, and
not as a result of any other communication, notice, letter advertisement,
article, publication, news release, broadcast or other communication.
5.8 The Investor understands that nothing in this Agreement or any
other materials presented to the Investor in connection with the purchase
and sale of the Securities or Shares constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment advisors
as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Securities and Shares.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement or by
the Placement Agents, all covenants, agreements, representations and
warranties made by the Company and the Investor herein shall survive the
execution of this Agreement, and the payment by the Investor for the
Securities being purchased pursuant to this Agreement.
7. Registration of the Shares. The registration rights granted in
connection with the Securities are set forth in the Registration Rights
Agreement, of even date herewith.
8. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed (A) if within
domestic United States by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by
International Federal Express or facsimile, and shall be deemed given (i)
if delivered by first-class registered or certified mail domestic, three
business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one (1) business day after so mailed, (iii) if delivered
by International Federal Express, two (2) business days after so mailed,
(iv) if delivered by facsimile, upon electric confirmation of receipt and
shall be delivered as addressed as follows:
(a) if to the Company, to:
TiVo Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Investor, at its address on the First Page hereto,
or at such other address or addresses as may have been furnished to the
Company in writing.
9. Termination. This Agreement shall terminate on the earlier of
(a) the date on which the Company and the Investor agree by mutual written
consent to terminate this Agreement, (b) the Closing or (c) August 31,
2001.
10. Waiver of Conflicts. Each party to this Agreement acknowledges
that ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇"), counsel for the Company, has in the past
performed and may continue to perform legal services for certain of the
Investors in matters unrelated to the transactions described in this
Agreement, including the representation of such Investors in equity
financings and other matters. Accordingly, each party to this Agreement
hereby (1) acknowledges that it has had an opportunity to ask for
information relevant to this disclosure; (2) acknowledges that ▇▇▇▇▇▇
represented the Company in the transaction contemplated by this Agreement
and has not represented any individual Investor or any individual
stockholder or employee of the Company in connection with such transaction;
and (3) gives its informed consent to ▇▇▇▇▇▇'▇ representation of certain of
the Investors in such unrelated matters and to ▇▇▇▇▇▇'▇ representation of
the Company in connection with this Agreement and the transactions
contemplated hereby.
11. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the
Investor.
12. Allocation of Purchase Price Among Notes and Warrants. The
parties to this Agreement acknowledge that, for United States federal
income tax purposes and based on the relative fair market values of the
Notes and the Warrants on the date hereof, the Company will allocate 81% of
the Purchase Price to the Notes, 11% of the Purchase Price to the Five-Year
Warrants, 6% of the Purchase Price to the One-Year Warrants and 2% of the
Purchase Price to the Five-Year Terminable Warrants.
13. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
14. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
15. Governing Law. This Agreement shall be deemed to be a contract
made under the laws of New York, and for all purposes shall be governed by
and construed in accordance with the laws of New York, including, without
limitation, Section 5-1401 of the New York General Obligations Law.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
17. Confidential Disclosure Agreement. Notwithstanding any
provision of this Agreement to the contrary, any confidential disclosure
agreement previously entered into between the Company and the Investor in
connection with the transactions contemplated by this Agreement shall
remain in full force and effect in accordance with its terms following the
execution of this Agreement and the consummation of the transactions
contemplated hereby.
EXHIBIT A
SECURITIES QUESTIONNAIRE
Pursuant to Section 5.1 of the Agreement, please provide us with
the following information:
1. The exact name that your interests
in the Securities are to be
registered in: ________________________
2. The relationship between the
Investor and the registered holder
listed in response to item 1 above: ________________________
3. The mailing address of the
registered holder listed in response
to item 1 above: ________________________
4. The telephone number of the
registered holder listed in response
to item 1 above: ________________________
5. The facsimile number of the
registered holder listed in response
to item 1 above: ________________________
6. The Social Security Number or Tax
Identification Number of the
registered holder listed in the
response to item 1 above: ________________________
7. You represented in Annex I to the
Purchase Agreement that you are an
"accredited investor" (as defined in
Rule 501(a)(1), (2), (3), (5), (6)
or (7) of Regulation D under the
Securities Act of 1933, as amended).
Please indicate, by checking "yes"
or "no" below, whether you are also
a qualified institutional buyer (as
defined in Rule 144A under the
Securities Act of 1933, as amended):
|_| Yes (Investor is a qualified
institutional buyer)
|_| No (Investor is not a qualified
institutional buyer)
EXHIBIT B
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder of 7% Convertible Senior Notes due 2006
("notes") of TiVo Inc., a Delaware corporation (the "Company"), or of
warrants ("warrants") to purchase shares of the Company's common stock, par
value $.001 per share (the "common stock"), or of shares of common stock
issued or issuable upon conversion of the notes (such shares of common
stock, the "Transfer Restricted Note Securities") or of common stock issued
or issuable upon exercise of the warrants (such shares of common stock, the
"Transfer Restricted Warrant Securities" and together with the notes,
warrants and Transfer Restricted Note Securities, the "Transfer Restricted
Securities"), understands that the Company has filed or intends to file
with the Securities and Exchange Commission a registration statement on
Form S-3 (the "Shelf Registration Statement") for the registration and the
resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Transfer Restricted Securities in accordance with
the terms of the Registration Rights Agreement, dated as of August 28, 2001
(the "Registration Rights Agreement") among the Company and the initial
holders of the notes and the warrants. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set
forth below. All capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto in the Registration Rights Agreement.
Each holder of Transfer Restricted Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or
otherwise dispose of any Transfer Restricted Securities pursuant to the
Shelf Registration Statement, a holder of Transfer Restricted Securities
generally will be required to be named as a selling securityholder in the
related prospectus or a supplement thereto (as so supplemented, the
"Prospectus"), deliver the Prospectus to purchasers of Transfer Restricted
Securities and be bound by the provisions of the Registration Rights
Agreement (including certain indemnification provisions, as described
below). Holders must complete and deliver this Notice and Questionnaire in
order to be named as selling securityholders in the Prospectus. Holders of
Transfer Restricted Securities who do not complete, execute and return this
Notice and Questionnaire (1) will not be named as selling securityholders
in the Shelf Registration Statement or the Prospectus and (2) may not use
the Prospectus for resales of Transfer Restricted Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the Prospectus.
Holders of Transfer Restricted Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not
named as a selling securityholder in the Shelf Registration Statement and
the Prospectus.
Notice
The undersigned holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby gives notice to the Company of its intention
to sell or otherwise dispose of Transfer Restricted Securities owned by it
and listed below in Item (3), unless otherwise specified in Item (3),
pursuant to the Shelf Registration Statement. The undersigned, by signing
and returning this Notice and Questionnaire, understands and agrees that it
will be bound by the terms and conditions of this Notice and Questionnaire
and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has
agreed to indemnify and hold harmless the Company, the Company's directors
and the Company's officers who sign the Shelf Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against certain
losses arising in connection with certain statements concerning the
undersigned made in the Shelf Registration Statement or the related
prospectus in reliance upon the information provided in this Notice and
Questionnaire.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
_____________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as
(a) above) through which Transfer Restricted Securities
listed in Item (3) below are held:
____________________________________________________________
2. Address for Notices to Selling Securityholder:
____________________________________________________________________
____________________________________________________________________
Telephone:
------------------------------------------------------------------
Fax:
-----------------------------------------------------------------------
Contact Person:
--------------------------------------------------------------
3. Ownership of Transfer Restricted Securities:
(a) Type and amount of Transfer Restricted Securities owned:
__________________________________________________________
(b) Type and amount of Transfer Restricted Securities to be
registered:
__________________________________________________________
4. Ownership and Beneficial Ownership of Other Securities of the
Company owned by the Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not
the beneficial or registered owner of any securities of the
Company other than the Transfer Restricted Securities listed above
in Item (3).
(a) Type and Amount of Other Securities owned or beneficially
owned:
__________________________________________________________
__________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
__________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other
material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees
or pledgees) intends to distribute the Transfer Restricted
Securities listed above in Item (3) pursuant to the Shelf
Registration Statement only as follows (if at all): Such Transfer
Restricted Securities may be sold from time to time directly by
the undersigned or alternatively, through underwriters,
broker-dealers or agents. If the Transfer Restricted Securities
are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts and
commissions and/or agent's commissions. Such Transfer Restricted
Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at
varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Transfer
Restricted Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options.
In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of
the Transfer Restricted Securities in the course of hedging the
positions they assume. The Selling Securityholder may also sell
Transfer Restricted Securities short and deliver Transfer
Restricted Securities to close out such short positions, or loan
or pledge Transfer Restricted Securities to broker-dealers that in
turn may sell such securities.
State any exceptions here:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Note: In no event will such method(s) of distribution take the
form of an underwritten offering of the Transfer Restricted
Securities without the prior agreement of the Company.
The undersigned acknowledges that it understands its
obligation to comply with the provisions of the Exchange Act and the rules
thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations), in connection with any
offering of Transfer Restricted Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any
person acting on its behalf will engage in any transaction in violation of
such provisions.
The Selling Securityholder hereby acknowledges its
obligations under the Registration Rights Agreement to indemnify and hold
harmless certain persons as set forth therein. Pursuant to the Registration
Rights Agreement, the Company has agreed under certain circumstances to
indemnify the Selling Securityholder against certain liabilities.
In accordance with the undersigned's obligation under the
Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the
undersigned agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein that may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains
effective. All notices hereunder and pursuant to the Registration Rights
Agreement shall be made in writing, by hand delivery, first-class mail or
air courier guaranteeing overnight delivery at the address set forth below.
In the absence of any such notification, the Company shall be entitled to
continue to rely on the accuracy of the information in this Notice and
Questionnaire.
By signing below, the undersigned consents to the
disclosure of the information contained herein in its answers to items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and the Prospectus. The undersigned understands that
such information will be relied upon by the Company in connection with the
preparation, amendment or supplementation of the Shelf Registration
Statement and the Prospectus.
The terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and
the Selling Securityholder with respect to the Transfer Restricted
Securities owned by the Selling Securityholder and listed in Item (3)
above. This agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York applicable to contracts
made in the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly
given, has caused this Notice and Questionnaire to be executed and
delivered either in person or by its duly authorized agent.
Date:
------------------------ --------------------------------------
Selling Securityholder (Print or
type full legal name of holder of
Transfer Restricted Securities)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Company address
Attention:
----------------------------
with a copy to:
Company counsel
Attention:
-----------------------------
EXHIBIT C
FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
August ___, 2001
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sutro Capital Markets, Inc.
Investors Listed on Schedule A Hereto
c/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: TiVo Inc.
Ladies and Gentlemen:
We have acted as special counsel to TiVo Inc., a Delaware
corporation (the "Company") in connection with the sale to the investors
listed on Schedule A hereto (the "Investors") on the date hereof by the
Company of $51,750,000 in aggregate principal amount of 7% Convertible
Subordinated Notes due 2006 (the "Notes") convertible into shares of the
Company's common stock, par value $.001 per share (the "Common Stock"),
warrants (the "Investor Five-Year Warrants") to purchase 2,536,766 shares
of Common Stock and units (the "Investor Units") consisting of warrants
(the "Investor One-Year Warrants") to purchase 3,843,582 shares of Common
Stock and warrants (the "Investor Five-Year Terminable Warrants" and,
together with the Investor Five-Year Warrants and the Investor One-Year
Warrants, the "Investor Warrants") to purchase 1,268,384 shares of Common
Stock, pursuant to Note, Warrant and Unit Purchase Agreements, each dated
as of August 23, 2001, between each Investor and the Company (collectively,
the "Purchase Agreement"). The Notes, the Investor Five-Year Warrants and
the Investor Units were offered to the Investors, on behalf of the Company,
by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. ("▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
("▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sutro Capital Markets, Inc. ("Sutro")
pursuant to a Private Placement Memorandum, dated August 23, 2001,
including the documents incorporated by reference therein (the
"Memorandum"). An additional 145,834 warrants (the "▇▇▇▇▇▇▇▇▇ Five-Year
Warrants," and together with the Investor Five-Year Warrants, the
"Five-Year Warrants") and 220,960 units (the "▇▇▇▇▇▇▇▇▇ Units," and
together with the Investor Units, the "Units") consisting of 220,960
warrants (the "▇▇▇▇▇▇▇▇▇ One-Year Warrants," and together with the Investor
One-Year Warrants, the "One-Year Warrants") and 72,917 warrants (the
"▇▇▇▇▇▇▇▇▇ Five-Year Terminable Warrants," and, together with the ▇▇▇▇▇▇▇▇▇
Five-Year Warrants and the ▇▇▇▇▇▇▇▇▇ One-Year Warrants, the "▇▇▇▇▇▇▇▇▇
Warrants," and the ▇▇▇▇▇▇▇▇▇ Five-Year Terminable Warrants, together with
the Investor Five-Year Terminable Warrants, the "Five-Year Terminable
Warrants," and the Five-Year Terminable Warrants together with the
Five-Year Warrants and the One-Year Warrants, the "Warrants") were issued
to ▇▇▇▇▇▇▇▇▇ pursuant to a Warrant and Unit Acquisition Agreement, dated as
of the date hereof, between the Company and ▇▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇▇
Warrant Acquisition Agreement"). The Notes are being issued pursuant to an
Indenture, dated as of the date hereof (the "Indenture"), between the
Company and The Bank of New York, as trustee (in such capacity, the
"Trustee"). The Five-Year Warrants are being issued pursuant to a Warrant
Agreement, dated as of the date hereof (the "Five-Year Warrant Agreement")
by and between the Company and The Bank of New York, as warrant agent (the
"Warrant Agent"). The One-Year Warrants are being issued pursuant to a
Warrant Agreement, dated as of the date hereof (the "One-Year Warrant
Agreement") by and between the Company and The Bank of New York, as warrant
agent. The Five-Year Terminable Warrants are being issued pursuant to a
Warrant Agreement, dated as of the date hereof (the "Five-Year Terminable
Warrant Agreement," and together with the Five-Year Warrant Agreement and
the One-Year Warrant Agreement, the "Warrant Agreements") by and between
the Company and The Bank of New York, as warrant agent. This opinion is
being rendered to you pursuant to Section 4.17 of the Purchase Agreement.
The Purchase Agreement, the Indenture, the Notes, the Warrant Agreements,
the Warrants and the Registration Rights Agreement (as defined in the
Purchase Agreement) are sometimes referred to herein collectively as the
"Operative Documents." Other capitalized terms used herein without
definition have the meanings assigned to them in the Purchase Agreement.
As such counsel, we have made such legal and factual examinations
and inquiries as we have deemed necessary or appropriate for purposes of
this opinion. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents
submitted to us as copies. As to facts material to the opinions, statements
and assumptions expressed herein, we have, with your consent, relied upon
oral or written statements and representations of officers and other
representatives of the Company and others. In addition, we have obtained
and relied upon such certificates and assurances from public officials as
we have deemed necessary.
We are opining herein as to the effect on the subject transaction
only of the federal laws of the United States, the internal laws of the
State of New York and the General Corporation Law of the State of Delaware
(the "DGCL"), and we express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or,
in the case of Delaware, any other laws, or as to any matters of municipal
law or the laws of any local agencies within any state.
Whenever a statement herein is qualified by "to the best of our
knowledge" or a similar phrase, it is intended to indicate that those
attorneys in this firm who have rendered legal services in connection with
the above transaction do not have current actual knowledge of the
inaccuracy of such statement. However, except as otherwise expressly
indicated, we have not undertaken any independent investigation to
determine the accuracy of any such statement, and no inference that we have
any knowledge of any matters pertaining to such statement should be drawn
from our representation of the Company.
Subject to the foregoing and the other matters set forth
herein, it is our opinion that, as of the date hereof:
1. The Company is a corporation and is validly existing and in
good standing under the laws of the State of Delaware, with corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Memorandum. Based solely on certificates from
public officials, we confirm that the Company is qualified to do business
in California.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Company and is the legally valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
The issuance and sale of the Notes and Investor Warrants by the Company
pursuant to the Purchase Agreement and the issuance of the ▇▇▇▇▇▇▇▇▇
Warrants pursuant to the ▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement will not
result in the violation by the Company of its Certificate of Incorporation
or Bylaws, or the Delaware General Corporation Law or any federal or New
York statute, rule, or regulation known to us to be applicable to the
Company (other than federal or state securities laws, which are
specifically addressed elsewhere herein).
3. The Indenture has been duly authorized, executed and delivered
by the Company and is the legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
4. The Notes have been duly authorized by the Company and, when
executed, issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Investors in accordance with
the terms of the Purchase Agreement, will be legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms and, to the best of our knowledge, free of preemptive or
similar rights contained in the Company's agreements (the "Material
Agreements") listed under Items 4 and 10 of the exhibit lists to the
Company's (i) Annual Report on Form 10-K for the fiscal year ended December
31, 2000, (ii) Amendment to Annual Report on Form 10-K/A for the fiscal
year ended December 31, 2000, (iii) Transition Report on Form 10-K for the
one-month transition period ended January 31, 2001 and (iv) Quarterly
Report on Form 10-Q for the quarter ended April 30, 2001, other than the
participation rights described in the Stockholders and Registration Rights
Agreement (the "AOL Agreement"), dated as of June 9, 2000, by and between
the Company and America Online, Inc., which rights have been waived.
5. The shares of Common Stock issuable as of the date hereof upon
conversion of the Notes (the "Note Shares") have been duly authorized and
reserved for issuance upon conversion of the Notes and, when issued and
delivered upon conversion of the Notes in accordance with the terms of the
Notes and the Indenture, will be validly issued, fully paid and
nonassessable and, to the best of our knowledge, free of preemptive or
similar rights contained in the Material Agreements, other than the
participation rights described in the AOL Agreement, which rights have been
waived.
6. The Five-Year Warrant Agreement has been duly authorized,
executed and delivered by the Company and is the legally valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms.
7. The Five-Year Warrants have been duly authorized by the Company
and, when executed, issued and authenticated in accordance with the terms
of the Five-Year Warrant Agreement and delivered to and paid for by the
Investors and ▇▇▇▇▇▇▇▇▇ in accordance with the terms of the Purchase
Agreement and the ▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement, as applicable,
will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and, to the best of our
knowledge, free of preemptive or similar rights contained in the Material
Agreements, other than the participation rights described in the AOL
Agreement, which rights have been waived.
8. The shares of Common Stock issuable as of the date hereof upon
exercise of the Five-Year Warrants (the "Five-Year Warrant Shares") have
been duly authorized and reserved for issuance upon exercise of the
Five-Year Warrants, and when issued and delivered upon receipt by the
Company of the exercise price payable upon exercise of the Five-Year
Warrants in accordance with the terms of the Five-Year Warrants and the
Five-Year Warrant Agreement, will be validly issued, fully paid and
nonassessable and, to the best of our knowledge, free of preemptive or
similar rights contained in the Material Agreements, other than the
participation rights described in the AOL Agreement, which rights have been
waived.
9. The One-Year Warrant Agreement has been duly authorized,
executed and delivered by the Company and is the legally valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms.
10. The One-Year Warrants have been duly authorized by the Company
and, when executed, issued and authenticated in accordance with the terms
of the One-Year Warrant Agreement and delivered to and paid for by the
Investors and ▇▇▇▇▇▇▇▇▇ in accordance with the terms of the Purchase
Agreement and the ▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement, as applicable,
will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and, to the best of our
knowledge, free of preemptive or similar rights contained in the Material
Agreements, other than the participation rights described in the AOL
Agreement, which rights have been waived.
11. The shares of Common Stock issuable as of the date hereof upon
exercise of the One-Year Warrants (the "One-Year Warrant Shares") have been
duly authorized and reserved for issuance upon exercise of the One-Year
Warrants, and when issued and delivered upon receipt by the Company of the
exercise price payable upon exercise of the One-Year Warrants in accordance
with the terms of the One-Year Warrants and the One-Year Warrant Agreement,
will be validly issued, fully paid and nonassessable and, to the best of
our knowledge, free of preemptive or similar rights contained in the
Material Agreements, other than the participation rights described in the
AOL Agreement, which rights have been waived.
12. The Five-Year Terminable Warrant Agreement has been duly
authorized, executed and delivered by the Company and is the legally valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
13. The Five-Year Terminable Warrants have been duly authorized by
the Company and, when executed, issued and authenticated in accordance with
the terms of the Five-Year Terminable Warrant Agreement and delivered to
and paid for by the Investors and ▇▇▇▇▇▇▇▇▇ in accordance with the terms of
the Purchase Agreement and the ▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement, as
applicable, will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and, to the
best of our knowledge, free of preemptive or similar rights contained in
the Material Agreements, other than the participation rights described in
the AOL Agreement, which rights have been waived.
14. The shares of Common Stock issuable as of the date hereof upon
exercise of the Five-Year Terminable Warrants (the "Five-Year Terminable
Warrant Shares" and, together with the Five-Year Warrant Shares and the
One-Year Warrant Shares, the "Warrant Shares") have been duly authorized
and reserved for issuance upon exercise of the Five-Year Terminable
Warrants, and when issued and delivered upon receipt by the Company of the
exercise price payable upon exercise of the Five-Year Terminable Warrants
in accordance with the terms of the Five-Year Terminable Warrants and the
Five-Year Terminable Warrant Agreement, will be validly issued, fully paid
and nonassessable and, to the best of our knowledge, free of preemptive or
similar rights contained in the Material Agreements, other than the
participation rights described in the AOL Agreement, which rights have been
waived.
15. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is the legally valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms.
16. No registration under the Securities Act of the Notes or the
Warrants, and no qualification of the Indenture under the Trust Indenture
Act, is required for the purchase of the Notes and the Warrants by the
Investors or ▇▇▇▇▇▇▇▇▇ in the manner contemplated by the Purchase
Agreement, the ▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement and the Memorandum.
We express no opinion, however, as to when or under what circumstances any
of the Notes, the shares of Common Stock issuable upon conversion of the
Notes, the Warrants or the shares of Common Stock issuable upon exercise of
the Warrants may be reoffered or resold.
The opinions rendered in paragraphs 5, 8, 11 and 14 relating to
the fully paid and non-assessable nature of the Note Shares and the Warrant
Shares are subject to the following assumptions with respect to any Notes
and Warrants issued for consideration other than cash: (i) at the time of
any conversion of such Notes or exercise of such Warrants, not less than
the amount of the purchase price for such Notes or Warrants, as applicable,
that has been determined to be capital in accordance with DGCL Section 152
has been paid by the purchaser to the Company, and (ii) the purchaser of
any such Notes or Warrants is subject to a binding obligation to pay the
Company the balance of the purchase price for such Notes or Warrants.
The opinions rendered in paragraphs 2, 3, 4, 6, 7, 9, 10, 12, 13
and 15 relating to the enforceability of the Purchase Agreement, the
Indenture, the Notes, the Warrant Agreements, the Warrants and the
Registration Rights Agreement, respectively, are subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; (iii) the unenforceability under certain circumstances under law
or court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy; (iv) we
express no opinion concerning the enforceability of any liquidated damages
provisions contained in the Indenture, the Notes, the Warrant Agreements,
the Warrants or the Registration Rights Agreement; (v) we express no
opinion concerning the enforceability of the waiver of rights or defenses
contained in Section 5.7 of the Indenture; and (vi) we express no opinion
with respect to whether acceleration of the Notes may affect the
collectibility of that portion of the stated principal amount thereof which
might be determined to constitute unearned interest thereon.
We have not been requested to express and, with your
knowledge and consent, do not render any opinion as to the applicability to
the obligations of the Company under the Indenture and the Notes of Section
548 of the Bankruptcy Code or applicable state law (including, without
limitation, Article 10 of the New York Debtor and Creditor Law) relating to
fraudulent transfers and obligations.
With your permission, for purposes of the opinions
rendered in paragraph 16, we have assumed that the representations and
agreements of (i) each of the Investors and the Company contained in the
Purchase Agreement, (ii) ▇▇▇▇▇▇▇▇▇ contained in the engagement letter
between the Company and ▇▇▇▇▇▇▇▇▇, dated June 18, 2001 and the ▇▇▇▇▇▇▇▇▇
Warrant Acquisition Agreement, (iii) ▇▇▇▇▇▇ contained in the engagement
letter between the Company and ▇▇▇▇▇▇ dated July 23, 2001, and (iv) Sutro
contained in the engagement letter between the Company and Sutro dated July
31, 2001, are accurate and have been and will be complied with.
To the extent that the obligations of the Company under the
Operative Documents may be dependent upon such matters, we have assumed for
purposes of this opinion that (i) each of the Investors, the Trustee and
the Warrant Agent (a) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; (b) has the
requisite organizational and legal power and authority to perform its
obligations under each of the Operative Documents to which it is a party;
(c) is duly qualified to engage in the activities contemplated by each such
Operative Document; and (d) has duly authorized, executed and delivered
each such Operative Document; (ii) with respect to each of the Investors,
the Trustee and the Warrant Agent, each Operative Document to which it is a
party constitutes its legally valid and binding agreement, enforceable
against it in accordance with its terms; (iii) the Trustee is in
compliance, generally and with respect to acting as Trustee under the
Indenture, with all applicable laws and regulations; and (iv) the Warrant
Agent is in compliance, generally and with respect to acting as Warrant
Agent under the Warrant Agreements, with all applicable laws and
regulations. We express no opinion as to compliance by any parties to the
Operative Documents with any state or federal laws or regulations
applicable to the subject transaction because of the nature of their
business.
Our opinions set forth in paragraph 2 above are based upon our
consideration of only those statutes, rules and regulations which, in our
experience, are normally applicable to the issuance and sale of securities.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion
may not be relied upon by you for any other purpose, or furnished to,
quoted to, or relied upon by any other person, firm or corporation for any
purpose, without our prior written consent.
EXHIBIT D
FORM OF ESCROW AGREEMENT