Exhibit 6
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August 28, 2001 by and among TiVo Inc., a Delaware
corporation (the "Company"), and the purchasers listed on Schedule A hereto
(each a "Purchaser" and collectively, the "Purchasers"). The Company proposes
to issue and sell to the Purchasers an aggregate of $51,750,000 principal
amount of 7% Convertible Senior Notes due 2006 (the "Notes"), warrants (the
"Investor Five-Year Warrants") to purchase an aggregate of 2,536,766 shares of
the Company's common stock, par value $.001 per share (the "Common Stock") and
3,843,582 units (the "Investor Units"), consisting of warrants (the "Investor
One-Year Warrants") to purchase an aggregate of 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 an aggregate of 1,268,384 shares of Common
Stock. 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 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
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. pursuant to a Warrant and Unit Acquisition Agreement,
dated as of the date hereof (the "▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement").
For purposes hereof, references to the Purchasers shall include ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Inc., where applicable. As an inducement to the Purchasers to enter
into Note, Warrant and Unit Purchase Agreements, each dated as of August 23,
2001 (collectively, the "Purchase Agreement"), and in satisfaction of a
condition to the Purchasers' obligations thereunder, the Company agrees with
the Purchasers, for the benefit of the holders from time to time (including
the Purchasers) of the Notes, the Warrants and the shares of Common Stock
issuable upon conversion of the Notes and exercise of the Warrants (the
"Shares"), as follows:
SECTION 1 DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 3(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which the banking institutions in The City of New
York are authorized or obligated by law or executive order to close or be
closed.
"Closing" has the meaning set forth in Section 3(a) hereof.
"Commission" means the Securities and Exchange Commission.
"Damages Payment Date" means each Interest Payment Date. For purposes
of this Agreement, if no Notes are outstanding, "Damages Payment Date" shall
mean each August 15 and February 15.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Five-Year Terminable Warrant Agreement" means the Warrant Agreement,
dated as of August 28, 2001, by and between the Company and The Bank of New
York, as Warrant Agent, relating to the Five-Year Terminable Warrants, as the
same may be amended from time to time in accordance with the terms thereof.
"Five-Year Warrant Agreement" means the Warrant Agreement, dated as
of August 28, 2001, by and between the Company and The Bank of New York, as
Warrant Agent, relating to the Five-Year Warrants, as the same may be amended
from time to time in accordance with the terms thereof.
"Holder" has the meaning set forth in Section 2 hereof.
"Indenture" means the Indenture, dated as of August 28, 2001, between
the Company and the Trustee, relating to the Notes, as the same may be amended
from time to time in accordance with the terms thereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 3(a) hereof
"Interest Payment Date" has the meaning set forth in the Indenture.
"Liquidated Damages" has the meaning set forth in Section 3(e)
hereof.
"Losses" has the meaning set forth in Section 7(d) hereof.
"Majority Holders" means the Holders owning a majority of the total
Registrable Securities.
"Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Exhibit B to the Purchase
Agreement and the ▇▇▇▇▇▇▇▇▇ Warrant Acquisition Agreement.
"One-Year Warrant Agreement" means the Warrant Agreement, dated as of
August 28, 2001, by and between the Company and The Bank of New York, as
Warrant Agent, relating to the One-Year Warrants, as the same may be amended
from time to time in accordance with the terms thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended
or supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of Registrable Securities covered by such Shelf
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments and including all information incorporated
by reference into such Prospectus.
"Registrable Securities" means each of:
(a) the Notes, until the earlier of the following events: (i) the
date on which such Note has been effectively registered under the Act and sold
or transferred pursuant to the Shelf Registration Statement, (ii) the date on
which such Note has been distributed to the public pursuant to Rule 144 under
the Act or is saleable pursuant to Rule 144(k) under the Act, or (iii) the
date on which such Note ceases to be outstanding;
(b) the Shares issued or issuable upon conversion of the Notes, until
the earlier of the following events: (i) the date on which such Share has been
effectively registered under the Act and sold or transferred pursuant to any
Shelf Registration Statement, (ii) with respect to Shares issued upon
conversion of Notes, if such Note was effectively registered under the
Securities Act and sold or transferred pursuant to any Shelf Registration
Statement, the date on which such note was so sold or transferred, (iii) the
date on which such Share has been distributed to the public pursuant to Rule
144 under the Act or is saleable pursuant to Rule 144(k) under the Act, (iv)
with respect to Shares issued upon conversion of Notes, if such Note was
distributed to the public pursuant to Rule 144 under the Act or was saleable
pursuant to Rule 144(k) under the Act and if such conversion was in compliance
with Section 3(a)(9) of the Act, the date on which such Note was converted, or
(v) the date on which such Share ceases to be outstanding;
(c) the Warrants, until the earlier of the following events: (i) the
date on which such Warrant has been effectively registered under the Act and
sold or transferred pursuant to the Shelf Registration Statement, (ii) the
date on which such Warrant has been distributed to the public pursuant to Rule
144 under the Act or is saleable pursuant to Rule 144(k) under the Act, or
(iii) the date on which such Warrant ceases to be outstanding; and
(d) the Shares issued or issuable upon exercise of the Warrants,
until the earlier of the following events: (i) the date on which such Share
has been effectively registered under the Act and sold or transferred pursuant
to the Shelf Registration Statement, (ii) with respect to Shares issued upon
the exercise of Warrants, if such Warrant was effectively registered under the
Act and sold or transferred pursuant to the Shelf Registration Statement, the
date on which such Warrant was so sold or transferred, (iii) the date on which
such Share has been distributed to the public pursuant to Rule 144 under the
Act or is saleable pursuant to Rule 144(k) under the Act, (iv) with respect to
Shares issued upon the "Cashless Exercise" of Warrants pursuant to Section
10(b) of the Five-Year Warrant Agreement or Section 10(b) of the Five-Year
Terminable Warrant Agreement, as applicable, if such Warrant was distributed
to the public pursuant to Rule 144 under the Act or was saleable pursuant to
Rule 144(k) under the Act and if such Cashless Exercise was in compliance with
Section 3(a)(9) of the Act, the date on which such Warrant was exercised, or
(v) the date on which such Share ceases to be outstanding.
"Registration Default" has the meaning set forth in Section 3(e)
hereof.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(c)
hereof.
"Shelf Registration Statement" means one or more "shelf" registration
statements of the Company pursuant to the provisions of Section 3 hereof that
covers some or all of the Registrable Securities as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, and in each case, including
the Prospectus contained therein, all exhibits thereto and all material
incorporated therein by reference, including the Initial Shelf Registration
Statement and the Supplemental Shelf Registration Statement.
"Supplemental Delay Period" means any period commencing on the date
of receipt by a Holder of any notice from the Company required by Section
4(b)(2) hereof and ending on the date of receipt by such Holder of an amended
or supplemented Shelf Registration Statement or Prospectus, as contemplated by
Section 4(h) or Section 4(i) hereof, or the receipt by such Holder of written
notice from the Company (the "Advice") that the use of the Prospectus may be
resumed.
"Supplemental Shelf Registration Statement" has the meaning set forth
in Section 3(b) hereof.
"Trigger Date" has the meaning set forth in Section 3(b) hereof.
"Trustee" means the trustee with respect to the Notes under the
Indenture.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
"Warrant Agent" means the warrant agent with respect to the Warrants
under the Five-Year Warrant Agreement, the One-Year Warrant Agreement or the
Five-Year Terminable Warrant Agreement, as applicable.
SECTION 2 HOLDERS
A person is deemed to be a holder of Registrable Securities (each, a
"Holder") whenever such person becomes the registered holder of Registrable
Securities, and includes broker-dealers that hold Registrable Securities (i)
as a result of market making activities and other trading activities and (ii)
which were acquired directly from the Company or an Affiliate of the Company.
SECTION 3 SHELF REGISTRATION
(a) The Company shall use its best efforts to file with the
Commission within 30 days of the date of the original sale of the Notes, the
Units and the Warrants by the Company (the "Closing") a Shelf Registration
Statement (the "Initial Shelf Registration Statement") relating to the resale
of the Registrable Securities, including the resale of 20,380,606 shares of
Common Stock issuable upon conversion of the Notes and exercise of the
Warrants by the Holders from time to time, in accordance with the methods of
distribution elected by such Holders and set forth in such Initial Shelf
Registration Statement, and thereafter shall use its best efforts to cause
such Initial Shelf Registration Statement to be declared effective under the
Act as promptly as practicable. The Company shall include in such Initial
Shelf Registration Statement the registration of the resale of the Units by
the Holders from time to time.
(b) In the event the conversion price of the notes is adjusted
pursuant to Section 15.11(b) of the Indenture (the date of any such
adjustment, a "Trigger Date"), the Company shall use its best efforts to file
with the Commission, within 30 days after the Trigger Date, a Shelf
Registration Statement (the "Supplemental Shelf Registration Statement"),
which may be filed pursuant to Rule 462(b) under the Act, if available,
relating to the resale of any additional Shares issuable as a result of such
adjustment upon conversion of the Notes by Holders from time to time. If the
Company files a Supplemental Shelf Registration Statement covering such
additional Shares, the Company thereafter shall use its best efforts to cause
such Supplemental Shelf Registration Statement to be declared effective under
the Act as promptly as practicable.
(c) Subject to Section 3(d), the Company shall use its best efforts
to keep any Shelf Registration Statement continuously effective in order to
permit the Prospectus forming a part thereof to be usable by Holders for a
period of two years from the latest date of original issuance of the Notes and
the Warrants by the Company pursuant to the Purchase Agreement or such shorter
period that will terminate upon the sale of all of the Registrable Securities
pursuant to the Shelf Registration Statement (the "Shelf Registration
Period"). Notwithstanding the foregoing, in the event that Rule 144(k) (or any
successor thereto) is amended to extend the two-year period after which
restricted securities issued to and continuously held by nonaffiliates of the
Company are no longer subject to the volume and manner limitations contained
in Rule 144, the Shelf Registration Period shall be extended for such
additional period or such shorter period that will terminate upon the sale of
all of the Registrable Securities pursuant to the Shelf Registration
Statement.
(d) Upon (i) the existence of any fact or the happening of any event
that, in the opinion of the Company, makes untrue any statement of a material
fact made in any Shelf Registration Statement, the Prospectus or any amendment
or supplement thereto or any document incorporated by reference therein or
requires the making of any changes in such Shelf Registration Statement or the
Prospectus so that, as of such date, the statements therein are not misleading
and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; (ii) the existence of any development
that, in the good faith discretion of the Company, makes it appropriate to
suspend the availability of any Shelf Registration Statement and related
Prospectus or which renders the Company unable to comply with Commission
requirements; (iii) the issuance by the Commission of a stop order suspending
the effectiveness of any Shelf Registration Statement or the initiation of
proceedings with respect to any Shelf Registration Statement; (iv) the receipt
by the Company of any notification with respect to the suspension of the
qualification of the securities included therein for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; or (v)
the filing of an amendment to any Shelf Registration Statement required by
Section 4(h) or Section 4(i) hereof, the Company shall be entitled to suspend
the availability of such Shelf Registration Statement or any Prospectus for
the Supplemental Delay Period, without incurring or accruing any obligation to
pay Liquidated Damages except as described below.
(e) If:
(i) the Initial Shelf Registration Statement is not filed
with the Commission within 30 days after the Closing;
(ii) any Supplemental Shelf Registration Statement is not
filed with the Commission within 30 days after the Trigger Date
related to the filing of such Supplemental Shelf Registration
Statement;
(iii) the Initial Shelf Registration Statement has not been
declared effective by the Commission within 90 days after the
Closing, provided, however, that in the event the Commission informs
the Company that it will review the Initial Shelf Registration
Statement or any document included or incorporated therein by
reference, or informs the Company that it will not declare the
Initial Shelf Registration Statement effective during the pendency of
its review of any confidential treatment request of the Company
currently before it, such 90-day period shall be extended (and no
Liquidated Damages shall accrue) for an additional 30 days;
(iv) any Supplemental Shelf Registration Statement has not
been declared effective by the Commission within 90 days after the
Trigger Date related to the filing of such Supplemental Shelf
Registration Statement, provided, however, that in the event the
Commission informs the Company that it will review such Supplemental
Shelf Registration Statement or any document included or incorporated
therein by reference, or informs the Company that it will not declare
such Supplemental Shelf Registration Statement effective during the
pendency of its review of any confidential treatment request of the
Company currently before it, such 90-day period shall be extended
(and no Liquidated Damages shall accrue) for an additional 30 days
after such Trigger Date;
(v) (a) any Shelf Registration Statement is filed and
declared effective but, during the Shelf Registration Period, it
thereafter ceases to be effective or available or (b) if the Company
suspends the use of the Prospectus forming a part thereof, for more
than 30 days in any period of 365 consecutive days in reliance upon
Section 3(d)(ii) or for more than 60 days in any period of 365
consecutive days for any reason;
(vi) any amendment to any Shelf Registration Statement or
supplement to the Prospectus forming a part thereof of the type
described in Section 4(i) hereof is not filed with the Commission
within the later of (x) ten Business Days after the date the Notice
and Questionnaire is delivered to the Company or (y) ten Business
Days after the expiration of any Supplemental Delay Period in effect
when the Notice and Questionnaire is delivered or put into effect
within ten Business Days of such delivery date; or
(vii) any amendment to any Shelf Registration Statement
required by Section 4(i) hereof is not declared effective within 45
Business Days of the filing of such amendment to the Shelf
Registration Statement (the "Amendment Effectiveness Deadline Date");
provided, however that the Amendment Effectiveness Deadline Date
shall be extended by up to ten Business Days from the expiration of a
Supplemental Delay Period (and the Company shall incur no obligation
to pay Liquidated Damages during such extension) if such Supplemental
Delay Period shall be in effect on the Amendment Effectiveness
Deadline Date;
(each such event referred to in foregoing clauses (i) through (vii), a
"Registration Default"), the Company hereby agrees to pay liquidated damages
("Liquidated Damages") with respect to any outstanding Registrable Securities
from and including the day following the Registration Default to but excluding
the day on which the Registration Default has been cured (the "Damages Accrual
Period"); provided, however that in the case of a Damages Accrual Period that
is in effect solely as a result of a Registration Default of the type
described in clauses (vi) and (vii) above, such Liquidated Damages shall be
paid only to the Holders that have delivered Notice and Questionnaires that
caused the Company to incur the obligations set forth in Section 4(i) the
nonperformance of which is the basis of such Registration Default; provided
further that Liquidated Damages based on a Registration Default of the type
described in clauses (vi) and (vii) above shall not accrue during any
Supplemental Delay Period that commences subsequent to such Registration
Default.
Liquidated Damages on the Notes and Shares issued upon conversion of
the Notes shall accrue as follows:
(A) in respect of any outstanding Notes that
continue to be Registrable Securities, to each Holder of
such Notes at the rate of $10.00 per month per $1,000
principal amount of Notes held by such Holders; and
(B) in respect of any outstanding Shares that
continue to be Registrable Securities and that were issued
upon conversion of Notes, to each Holder of such Shares at
the rate of $10.00 per month per $1,000 principal amount of
the Notes formerly held by such Holders that were converted
into such Shares.
If the Registration Default is not cured within 30 days, the Liquidated
Damages with respect to the rates described in the preceding clauses (A) and
(B) will increase by (i) $2.50 per month per $1,000 principal amount of Notes
that continue to be Registrable Securities, and (ii) with respect to such
outstanding Shares that continue to be Registrable Securities and that were
issued upon conversion of Notes, $2.50 per month per $1,000 principal amount
of Notes upon the conversion of which such Shares were issued, up to a maximum
rate of (i) $20.00 per month per $1,000 principal amount of Notes that
continue to be Registrable Securities, and (ii) with respect to such
outstanding Shares that continue to be Registrable Securities and that were
issued upon conversion of Notes, $20.00 per month per $1,000 principal amount
of Notes upon the conversion of which such Shares were issued.
Notwithstanding the foregoing, in the event that (i) the Company
defaults for 30 days in the payment of any installment of Liquidated Damages
described above when the same shall have become due and payable pursuant to
Section 3(f) hereof and (ii) (a) within 60 days after such 30 day period
described above there has not been a declaration pursuant to Section 7.1 of
the Indenture that the principal of and premium, if any, on the Notes and the
interest accrued thereon (including any Liquidated Damages to the extent
accrued and unpaid) are due and payable immediately or (b) any such
declaration described in the preceding clause (a) above has been waived, as
provided in the Indenture, then the Company shall be liable to any holder who
would otherwise have been entitled to such Liquidated Damages for any actual
damages incurred by such holder.
Liquidated Damages on the Warrants and the Shares issued upon
exercise of the Warrants shall accrue as follows:
(A) in respect of any unexercised Warrants that
continue to be Registrable Securities, to each Holder of
such Warrants at the rate of $.05 per week per $1,000 of
aggregate exercise price payable upon exercise of such
Warrants, as adjusted from time to time pursuant to the
terms of the Warrant Agreement (such exercise price as
adjusted, the "Exercise Price"); and,
(B) in respect of any outstanding Shares that
continue to be Registrable Securities and that were issued
upon exercise of Warrants, to each Holder of such Shares at
the rate of $.05 per week per $1,000 of aggregate Exercise
Price paid upon exercise of such Warrants.
If the Registration Default is not cured within 30 days, the Liquidated
Damages with respect to the rates described in the preceding clauses (A) and
(B) will increase by (i) $.05 per week per $1,000 of aggregate Exercise Price
payable upon exercise of such outstanding Warrants that continue to be
Registrable Securities, and (ii) with respect to such outstanding Shares that
continue to be Registrable Securities and that were issued upon exercise of
Warrants, $.05 per week per $1,000 of aggregate Exercise Price paid upon
exercise of such Warrants, up to a maximum rate of (i) $.25 per week per
$1,000 of aggregate Exercise Price payable upon exercise of such outstanding
Warrants that continue to be Registrable Securities, and (ii) with respect to
such outstanding Shares that continue to be Registrable Securities and that
were issued upon exercise of Warrants, $.25 per week per $1,000 of aggregate
Exercise Price paid upon exercise of such Warrants.
Liquidated Damages will accrue on a pro rata basis for any portion of
a month, with respect to the Notes and the Shares issuable upon conversion of
the Notes, or any portion of a week, with respect to the Warrants and the
Shares issuable upon exercise of the Warrants, during which a Registration
Default exists. Notwithstanding anything contained in this Section 3(e) to the
contrary, no Liquidated Damages will accrue on any Note, Warrant or Share on
and after to the date such Note, Warrant or Share ceases to be a Registrable
Security.
(f) All accrued Liquidated Damages shall be paid by certified check
or wire transfer of immediately available funds payable to the address or
account provided to the Company in writing pursuant to the notice requirements
of Section 9(b) hereof. With respect to the Notes and the Shares issued upon
conversion of the Notes, all accrued Liquidated Damages shall be paid in
arrears to Holders by the Company monthly on the 15th day of each month or, if
such date is not a Business Day, the next Business Day occurring thereafter.
With respect to the Warrants and the Shares issued upon exercise of the
Warrants, all accrued Liquidated Damages shall be paid in arrears to Holders
by the Company on each Damages Payment Date. Following the cure of all
Registration Defaults relating to any particular Registrable Security, Note or
Warrant, the accrual of Liquidated Damages with respect to such Registrable
Security, Note or Warrant shall cease.
SECTION 4 REGISTRATION PROCEDURES
In connection with any Shelf Registration Statement, the following
provisions shall apply:
(a) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof
and any amendment or supplement thereto complies in all material respects with
the Act and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
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
not misleading and (iii) except as permitted by Section 3, any Prospectus
forming part of any Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were made, not
misleading.
(b) (1) The Company shall advise the Holders named in any Shelf
Registration Statement that have provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by
any such Holder, confirm such advice in writing when a Shelf Registration
Statement and any amendment thereto has been filed with the Commission and
when the Shelf Registration Statement or any post-effective amendment thereto
has become effective.
(2) The Company shall advise the Holders named in any Shelf
Registration Statement, which have provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by
any such Holder, confirm such advice in writing:
(i) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(ii) of the initiation by the Commission of proceedings
relating to a stop order suspending the effectiveness of the Shelf
Registration Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(v) of the existence of any fact and the happening of any
event that, in the opinion of the Company, makes untrue any statement
of a material fact made in its Shelf Registration Statement, the
Prospectus or any amendment or supplement thereto or any document
incorporated by reference therein or requires the making of any
changes in the Shelf Registration Statement or the Prospectus so
that, as of such date, the statements therein are not misleading and
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading; and
(vi) the filing of an amendment to the Shelf Registration
Statement.
(c) The Company shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of any Shelf Registration Statement
at the earliest possible time.
(d) The Company shall use its best efforts to furnish to each selling
Holder named in any Shelf Registration Statement who so requests in writing
and who has provided to the Company an address for notices, without charge, at
least one conformed copy of such Shelf Registration Statement and any
post-effective amendments thereto (excluding any exhibits thereto).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder named in any Shelf Registration Statement and who has provided
to the Company an address for notices, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) contained in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; subject to any notice by the Company in accordance
with Section 4(b)(2) hereof, the Company consents to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders for the
purposes of the offering and resale of the Registrable Securities covered by
the Prospectus in accordance with the applicable regulations promulgated under
the Act and any restrictions set forth in the Prospectus.
(f) Prior to any offering of Registrable Securities pursuant to any
Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders named therein and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions of the United States as any such Holders reasonably request in
writing as promptly as practicable prior to the effectiveness of the Shelf
Registration Statement; provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
or unlimited service of process or to taxation in any such jurisdiction where
it is not then so subject.
(g) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request in writing.
(h) Except to the extent otherwise permitted under Section 3, upon
the occurrence of any event contemplated by paragraph 4(b)(2)(v) hereof, the
Company shall promptly prepare a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to the related Prospectus
or file any other required document so that as thereafter delivered to
purchasers of the Registrable Securities covered thereby, the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) Each Purchaser shall deliver to the Company a Notice and
Questionnaire at the Closing and shall provide the Company with any updated
information prior to the effectiveness of the Initial Shelf Registration
Statement. From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as practicable after the
date a Notice and Questionnaire is delivered to the Company by a Holder of
Registrable Securities pursuant to Section 9(b) hereof, and in any event upon
the later of (x) ten Business Days after such date or (y) ten Business Days
after the expiration of any Supplemental Delay Period in effect when a Notice
and Questionnaire is so delivered, file with the Commission any amendments to
any Shelf Registration Statement or supplements to the related Prospectus as
may be required by applicable law so that the Holder delivering such Notice
and Questionnaire may use such Prospectus to sell such Holder's Registrable
Securities, subject to Section 3(d) hereof; provided, however that if such
Notice and Questionnaire is delivered during a Supplemental Delay Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire
and shall not be obligated to file any amendment to any Shelf Registration
Statement or supplement to the related Prospectus until expiration of the
Supplemental Delay Period. Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder that has
not submitted a Notice and Questionnaire as a selling securityholder in any
Shelf Registration Statement or related Prospectus.
(j) With respect to any underwritten offering of Registrable
Securities under the Shelf Registration Statement, the Company shall enter
into such agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in connection
therewith in order to expedite or facilitate such underwritten offering as may
be reasonably requested by the Majority Holders, counsel to the Majority
Holders or the managing Underwriters in connection therewith. In such
connection, the Company shall, upon request by the Majority Holders, counsel
to the Majority Holders or the managing Underwriters in connection with such
Shelf Registration Statement, use its best efforts to cause (i) its counsel to
deliver an opinion relating to the Shelf Registration Statement and the
Registrable Securities in customary form, (ii) its officers to execute and
deliver all customary documents and certificates reasonably requested by such
Majority Holders, counsel to such Majority Holders or the managing
Underwriters and (iii) its independent public accountants to provide a
customary comfort letter or letters, in the customary form and covering
matters of the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings.
(k) The Company may register or offer securities of the Company other
than the Registrable Securities under any Shelf Registration Statement.
SECTION 5 HOLDERS' AGREEMENTS
Each Holder severally but not jointly, by the acquisition of Notes,
Warrants or Shares, agrees:
(a) That upon receipt of a notice of the commencement of a
Supplemental Delay Period, it will keep the fact of such notice confidential,
forthwith discontinue disposition of its Registrable Securities pursuant to
any Shelf Registration Statement, and will not deliver any Prospectus forming
a part thereof until receipt of an amended or supplemented Shelf Registration
Statement or Prospectus, as applicable, as contemplated by Section 4(h)
hereof, or until receipt of the Advice.
(b) If so directed by the Company in a notice of the commencement of
a Supplemental Delay Period, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of any Prospectus covering the Registrable Securities.
(c) Sales of such Registrable Securities pursuant to any Shelf
Registration Statement shall only be made in the manner set forth in such
currently effective Shelf Registration Statement and in accordance with
applicable law.
(d) Upon the sale of Registrable Securities pursuant to any Shelf
Registration Statement, each Holder will deliver to the Trustee, the Warrant
Agent, or Company's transfer agent, as applicable, with a copy to the Company,
a Certificate of Subsequent Sale substantially in the form attached hereto as
Exhibit A, so that the Registrable Securities may be properly transferred.
(e) Prior to and as a condition to the exercise of Warrants, such
Holder shall, unless the Company otherwise agrees in writing and so notifies
the Warrant Agent, deliver to the Company a letter substantially in the form
attached to the Warrant Agreement as Exhibit B and an opinion of counsel if
the Company so requests and such certificates and other information as the
Company and/or the Warrant Agent may require to confirm that any such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act.
SECTION 6 REGISTRATION EXPENSES
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 3 and 4 hereof. Notwithstanding
the foregoing or anything in this Agreement to the contrary, each Holder shall
pay all underwriting discounts and commissions of any Underwriters with
respect to any Registrable Securities sold by it.
SECTION 7 INDEMNIFICATION AND CONTRIBUTION
(a) In connection with any Shelf Registration Statement and to the
extent permitted by law, the Company agrees to indemnify and hold harmless
each Holder covered thereby, the directors, officers, employees, partners,
representatives and agents of each such Holder and each person who controls
any such Holder within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act (each such person being sometimes hereinafter referred
to as an "indemnified party") against any and all losses, claims, damages,
judgments or liabilities, joint or several, to which they or any of them may
become subject, insofar as such losses, claims, damages, judgements or
liabilities (or actions in respect thereof) arise out of, or are based upon,
any untrue statement or alleged untrue statement of a material fact contained
in any Shelf Registration Statement as originally filed or in any amendment
thereof, or in any Prospectus, or in any amendment thereof or supplement
thereto, or arise out of, or are based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, judgment, liability or action; provided, however, that (i) the
Company will not be liable in any case to the extent that any such loss,
claim, damage, judgement or liability arises out of, or is based upon, any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any such Holder for
inclusion therein and (ii) the Company will not be liable to any indemnified
party under this indemnity agreement with respect to any Shelf Registration
Statement or Prospectus to the extent that any such loss, claim, damage,
judgement or liability of such indemnified party results solely from an untrue
statement of a material fact contained in, or the omission of a material fact
from, the Shelf Registration Statement or Prospectus, which untrue statement
or omission was corrected in an amended or supplemented Shelf Registration
Statement or Prospectus, if the person alleging such loss, claim, damage or
liability was not sent or given, at or prior to the written confirmation of
such sale, a copy of the amended or supplemented Shelf Registration Statement
or Prospectus if the Company had previously furnished copies thereof to such
indemnified party and if delivery of a prospectus is required by the Act and
was not so made. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Holder covered by any Shelf Registration Statement severally
agrees to indemnify and hold harmless the Company, each of the Company's
directors, officers, employees, partners, representatives and agents, and each
person who controls the Company within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by or
on behalf of such Holder for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have. In no event shall any
Holder, its directors, officers or any person who controls such Holder be
liable or responsible for any amount in excess of the amount by which the
total amount received by such Holder with respect to its sale of Registrable
Securities pursuant to any Shelf Registration Statement exceeds (i) the amount
paid by such Holder for such Registrable Securities and (ii) the amount of any
damages that such Holder, its directors, officers or any person who controls
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, the indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the failure to so notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to assume the defense of any such claim and to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel, and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party, and the indemnified party reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those available
to the indemnifying party, (iii) the indemnifying party did not employ counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party authorized the indemnified party to employ
separate counsel at the expense of the indemnifying party. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
all losses, claims, damages and liabilities by reason of any settlement of any
action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty Business
Days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, an indemnifying party shall not be liable for any
settlement of the nature contemplated by the immediately preceding sentence
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent that it
considers such request to be reasonable and (ii) provides written notice to
the indemnified party substantiating the unpaid balance as unreasonable, in
each case, prior to the date of settlement. An indemnifying party shall not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding for which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding and does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall to the extent permitted by
law have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was guilty of such fraudulent misrepresentation. For purposes
of this Section 7, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who shall have signed
the Shelf Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d). Notwithstanding the
foregoing, the obligations of each Holder hereunder are several and not joint.
(e) The provisions of this Section 7 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred
to in Section 7 hereof, and will survive the sale by a Holder of Registrable
Securities.
SECTION 8 RULE 144A and RULE 144
The Company agrees with each Holder, for so long as any Registrable
Securities remain outstanding and during any period in which the Company (i)
is not subject to Section 13 or 15(d) of the Exchange Act, to make available,
(A) with respect to each Holder of Five-Year Warrants, upon request of any
such Holder, to such Holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Registrable Securities pursuant to Rule 144A and (B) with
respect to each Holder of Notes, One-Year Warrants or Five-Year Terminable
Warrants, upon request of any such Holder, to such Holder or beneficial owner
of Registrable Securities in connection with any sale thereof and any
prospective purchaser of such Registrable Securities designated by such Holder
or beneficial owner, the same information as provided to a Holder of Five-Year
Warrants pursuant to the preceding clause (A), and (ii) is subject to Section
13 or 15 (d) of the Exchange Act, to make all filings required thereby in a
timely manner in order to permit resales of such Registrable Securities
pursuant to Rule 144.
SECTION 9 MISCELLANEOUS
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Majority Holders. Notwithstanding the foregoing (except
the foregoing proviso), a waiver or consent to depart from the provisions
hereof, with respect to a matter which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Shelf Registration
Statement and does not directly or indirectly adversely affect the rights of
other Holders, may be given by the majority of such Holders, determined on the
basis of the amount of Registrable Securities being sold rather than
registered under such Shelf Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 9(b), which address initially is, with respect to each
Holder, the address of such Holder set forth in the Purchase
Agreement;
(ii) if to the Company, initially at its address set forth
in the Purchase Agreement;
(iii) with a copy in like manner to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
initially at its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Company, by notice to the Holders, may designate additional or
different addresses for subsequent notices or communications.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, the successors and assigns of each of the parties
hereto, including, without the need for an express assignment or any consent
by the Company thereto, subsequent Holders of Registrable Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder
of Registrable Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(d) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) 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.
(g) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(h) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
Affiliates (other than subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or Registrable Securities.
(i) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
with respect to the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
TIVO INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President,
Finance and Administration and
Chief Financial Officer
NATIONAL BROADCASTING COMPANY, INC.
-----------------------------------
(Name of Purchaser)
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE A
PURCHASERS
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
RGC International Investors, LDC
Capital Ventures International
JMG Triton Offshore Fund, Ltd.
JMG Capital Partners, LP
Gryphon Master Fund, ▇.▇.
▇▇▇▇▇▇▇ Partners, L.P.
Woodmont Investments Ltd.
▇▇▇▇▇▇▇ Family Trust UTD 12-18-90
R2 CAPS, Ltd.
Castle Creek Technology Partners LLC
Cohanzick Partners, ▇.▇.
▇▇▇▇▇▇▇▇ Trading Ltd.
Reliant Trading
Sagamore Hill Hub Fund LTD
▇▇▇▇▇ Asset Management
National Broadcasting Company, Inc.
British Sky Broadcasting Group PLC
Discovery Communications, Inc.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
EXHIBIT A
CERTIFICATE OF SUBSEQUENT SALE
[Transfer Agent]
RE: Sale of Convertible Senior Notes due 2006, Warrants or
Shares of Common Stock of TiVo Inc. (the "Company") pursuant
to the Company's Prospectus dated _______________, 200__
(the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of
Convertible Senior Notes due 2006 (the "Notes"), shares of common stock, par
value $.001 per share (the "Common Stock") or warrants to purchase Common
Stock (the "Warrants" and together with the Notes and the Common Stock, the
"Securities") of the Company included in the table of Selling Holders in the
Prospectus, that the undersigned has sold the Securities pursuant to the
Prospectus and in a manner described under the caption "Plan of Distribution"
in the Prospectus and that such sale complies with all applicable securities
laws, including, without limitation, the Prospectus delivery requirements of
the Securities Act of 1933, as amended.
Selling Holder (the beneficial owner):
Record Holder (e.g., if held in name of nominee):
---------------------------
Restricted Stock Certificate No.(s):
----------------------------------------
Type of Security Sold:
------------------------------------------------------
Number of Such Securities Sold:
---------------------------------------------
Date of Sale:
---------------------------------------------------------------
In the event that you receive a note, warrant or stock certificate(s)
representing more Notes, Warrants or shares of Common Stock than have been
sold by the undersigned, then you should return to the undersigned a newly
issued certificate for such excess Notes, Warrants or shares of Common Stock
in the name of the Record Holder and BEARING A RESTRICTIVE LEGEND.
Very truly yours,
Dated: By:
------------------------ ------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
cc: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
