As filed with the Securities and Exchange Commission on November 1, 2001
Registration No. 333-69530
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TIVO INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 2160 Gold Street 77-0463167
(State or Other Jurisdiction of Alviso, California 95002 (I.R.S. Employer
Incorporation or Organization) (408) 519-9100 Identification Number)
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
---------------
Michael Ramsay
Chief Executive Officer
TiVo Inc.
2160 Gold Street
Alviso, California 95002
(408) 519-9100
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
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Copy To:
Alan C. Mendelson
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
(650) 328-4600
and
Laura L. Gabriel
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
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Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until this
Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a), may
determine.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and is subject to change. +
+We may not sell these securities until the registration statement filed with +
+the Securities and Exchange Commission is effective. This prospectus is not +
+an offer to sell these securities and we are not soliciting offers to buy +
+these securities in any state where an offer or sale of these securities is +
+not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, Dated November 1, 2001
PROSPECTUS
[TIVO INC. LOGO]
TIVO INC.
$51,750,000 of 7% Convertible Senior Notes Due 2006
2,682,600 Five-Year Warrants to Purchase 2,682,600 Shares of Common Stock
4,064,542 Units Consisting of
4,064,542 One-Year Warrants to Purchase 4,064,542 Shares of Common Stock and
4,064,542 Five-Year Terminable Warrants to Purchase 1,341,299 Shares of Common
Stock
Shares of Common Stock Issuable upon
Conversion of the Notes and Exercise of the Warrants
On August 28, 2001, we issued and sold $51,750,000 aggregate principal amount
of our 7% Convertible Senior Notes due 2006, 2,682,600 five-year warrants to
purchase a total of 2,682,600 shares of our common stock and 4,064,542 units
consisting of 4,064,542 one-year warrants to purchase a total of 4,064,542
shares of our common stock and 4,064,542 five-year terminable warrants to
purchase a total of 1,341,299 shares of our common stock in a private offering.
This prospectus will be used by selling securityholders to resell the notes,
the warrants, the units and the common stock issuable upon conversion of the
notes and exercise of the warrants.
Each five-year warrant represents the right to purchase one share of our
common stock. Each unit consists of one one-year warrant to purchase one share
of our common stock and one five-year terminable warrant to purchase .33 of a
share of our common stock. The one-year warrant and the five-year terminable
warrant that comprise each unit are not separately transferable, except that
upon the exercise of the one-year warrant, the five-year terminable warrant may
thereafter be separately transferred.
Our common stock is quoted on the Nasdaq National Market under the symbol
"TIVO." The last reported sale price per share of our common stock on the
Nasdaq National Market on November 1, 2001 was $5.55.
We will not receive any proceeds from the sale by the selling securityholders
of the notes, the warrants, the units or the common stock issuable upon
conversion of the notes and exercise of the warrants. We will pay all expenses
incurred in connection with the registration of the securities. Each selling
securityholder will pay any underwriting discounts and commissions with respect
to securities sold by it.
Investing in the notes, the warrants, the units and the common stock issuable
upon conversion of the notes and exercise of the warrants involves a high
degree of risk. See "Risk Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is November , 2001.
TABLE OF CONTENTS
Page
----
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS......................... ii
PROSPECTUS SUMMARY...................................................... 1
RISK FACTORS............................................................ 4
RATIOS OF EARNINGS TO FIXED CHARGES..................................... 6
USE OF PROCEEDS......................................................... 7
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY......................... 7
DESCRIPTION OF NOTES.................................................... 8
DESCRIPTION OF FIVE-YEAR WARRANTS....................................... 20
DESCRIPTION OF UNITS.................................................... 24
DESCRIPTION OF ONE-YEAR WARRANTS....................................... 24
DESCRIPTION OF FIVE-YEAR TERMINABLE WARRANTS........................... 29
REGISTRATION RIGHTS..................................................... 34
DESCRIPTION OF CAPITAL STOCK............................................ 38
SELLING SECURITYHOLDERS................................................. 43
PLAN OF DISTRIBUTION.................................................... 48
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES............................ 51
LEGAL MATTERS........................................................... 59
INDEPENDENT PUBLIC ACCOUNTANTS.......................................... 59
INCORPORATION BY REFERENCE.............................................. 59
WHERE YOU CAN FIND MORE INFORMATION..................................... 60
We have not authorized any dealer, salesperson or other person to give any
information or to make any representations to you other than the information
contained in this prospectus. You must not rely on any information or
representations not contained in this prospectus as if we had authorized it.
The information contained in this prospectus is current only as of the date on
the cover page of this prospectus, and may change after that date. We do not
imply that there has been no change in the information contained in this
prospectus or in our affairs since that date by delivering this prospectus.
This prospectus incorporates important business and financial information
about us that is not included in or delivered with this prospectus. This
information is available without charge to you upon written or oral request. If
you would like a copy of any of this information, please submit your request to
2160 Gold Street, Alviso, California 95002, or call (408) 519-9100 and ask to
speak to someone in our Investor Relations department.
i
FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, and
Section 21E of the Securities Exchange Act of 1934. These statements relate to
future events or our future product development or financial performance. In
some cases, you can identify forward-looking statements by terminology such as
"may," "will," "should," "expects," "plans," "anticipates," "believes,"
"estimates," "predicts," "potential," or "continue" or the negative of those
terms and other comparable terminology.
These statements reflect only management's current expectations. Important
factors that could cause actual results to differ materially from the forward-
looking statements we make or incorporate by reference in this prospectus are
set forth under the heading "Factors that May Affect Future Operating Results"
in the section entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in our most recent Annual Report on Form
10-K and Quarterly Report on Form 10-Q, as may be updated from time to time by
our future filings under the Securities Exchange Act of 1934, and elsewhere in
the documents incorporated by reference in this prospectus. If one or more of
these risks or uncertainties materialize, or if any underlying assumptions
prove incorrect, our actual results, performance or achievements may vary
materially from any future results, performance or achievements expressed or
implied by these forward-looking statements.
ii
PROSPECTUS SUMMARY
The following summary contains basic information about us and this offering.
It likely does not contain all the information that is important to you. For a
more complete understanding of this offering, we encourage you to read this
entire document and the documents we have referred you to.
The Company
TiVo Inc. was incorporated in August 1997 as a Delaware corporation. We have
developed a subscription-based personal television service which we refer to as
the TiVo Service. The TiVo Service provides viewers with the ability to pause,
rewind and play back live or recorded television broadcasts, as well as to
search for, watch and record programs. The TiVo Service also provides
television listings, daily suggestions and special viewing packages. The TiVo
Service relies on three key components: the personal video recorder, the TiVo
remote control and the TiVo Broadcast Center.
Our executive offices are located at 2160 Gold Street, PO Box 2160, Alviso,
CA 95002, and our telephone number is (408) 519-9100. TiVo, TiVo Central, and
TiVolution are registered trademarks of TiVo Inc. TiVo Inc. and the TiVo logo
are our service marks. All other service marks and all brand names or
trademarks appearing in this prospectus are the property of their respective
holders.
The Offering
Issuer.................. TiVo Inc.
Securities offered...... $51,750,000 aggregate principal amount of 7%
Convertible Senior Notes due 2006, 2,682,600 Five-
Year Warrants to purchase a total of 2,682,600 shares
of our common stock and 4,064,542 Units consisting of
a total of 4,064,542 One-Year Warrants to purchase a
total of 4,064,542 shares of our common stock and
4,064,542 Five-Year Terminable Warrants to purchase a
total of 1,341,299 shares of our common stock.
Notes
Interest................ 7% per annum on the principal amount, payable
semiannually on each August 15 and February 15,
beginning on February 15, 2002, and accruing from
August 24, 2001.
Maturity................ August 15, 2006.
Conversion.............. The notes are convertible at the option of the holder
at any time prior to maturity into common stock,
initially at a conversion price of $6.73 per share,
subject to the adjustments described in "Description
of Notes--Conversion Price Adjustments."
Provisional redemption.. Subject to the conditions described in "Description
of Notes--Provisional Redemption," we may redeem some
or all of the notes, at any time before maturity, at
a redemption price, in cash, of $1,000 per $1,000
principal amount of the notes, plus accrued and
unpaid interest, if any, to, but excluding, the
redemption date.
1
Repurchase at holder's option
upon a repurchase event..... You may require us to repurchase your notes, in
cash at 110% of the principal amount of the
notes plus accrued and unpaid interest, upon
certain changes of control and the delisting of
our common stock.
Ranking...................... The notes are our general unsecured obligations
and are pari passu in right of payment with all
of our existing and future unsecured and
unsubordinated indebtedness. The notes are
effectively subordinated in right of payment to
all existing and future liabilities, including
trade payables, if any, of our existing
subsidiary any future subsidiaries. We report
our financial results on a consolidated basis
and therefore do not prepare separate financial
statements for our subsidiary; you should
consider the possibility that a significant
portion of our reported liabilities may be
liabilities of our subsidiary. The terms of the
indenture do not generally limit our ability to
incur additional indebtedness, but do contain
limitations on our subsidiaries' ability to
incur additional indebtedness.
Five-Year Warrants
Exercise..................... Each five-year warrant represents the right to
purchase one share of our common stock. The
five-year warrants are exercisable at any time
on or before August 28, 2006. The exercise price
of the five-year warrants is $7.85 per share of
our common stock, subject to antidilution
adjustment upon the events set forth under
"Description of Five-Year Warrants--Exercise by
Holders."
Units
Composition of units......... Each unit consists of one one-year warrant to
purchase one share of our common stock and one
five-year terminable warrant to purchase .33 of
a share of our common stock.
Separability................. The one-year warrant and the five-year
terminable warrant that comprise each unit are
not separately transferable, except that upon
the exercise of the one-year warrant, the
corresponding five-year terminable warrant may
thereafter be separately transferred.
One-Year Warrants
Exercise..................... Each one-year warrant represents the right to
purchase one share of our common stock. The one-
year warrants are exercisable at any time on or
before August 28, 2002, subject to early
termination as described below. The exercise
price of the one-year warrants is $6.73 per
share of our common stock, subject to
antidilution adjustment upon the events set
forth under "Description of One-Year Warrants--
Exercise by Holders."
Early termination of one-year
warrants at our option...... We may terminate the one-year warrants at any
time if the closing price per share of our
common stock exceeds 150% of the then effective
exercise price for any 20 out of 30 consecutive
trading days (which we refer to as the
"determination period") and the shelf
registration statement is effective and
available for use at all times during the period
beginning 60 days prior to the date on which we
mail notice of the termination of the one-year
warrants and
2
ending on the 60th day after the mailing date
of the notice of termination, and is expected
to remain effective and available for use at
least 30 days following such 60th day. If we
elect to terminate the one-year warrants, we
may only do so if, within 30 days after the end
of the determination period, we provide notice
of termination to you. The one-year warrants
will expire 60 days after the mailing date of
the notice of termination.
Five-Year Terminable Warrants
Exercise...................... Each five-year terminable warrant represents
the right to purchase .33 of a share of our
common stock. The five-year terminable warrants
are exercisable at any time on or after the
separation date for such warrant and on or
before August 28, 2006, subject to early
termination as described below. The exercise
price of the five-year terminable warrants is
$7.85 per share of our common stock, subject to
antidilution adjustment upon the events set
forth under "Description of Five-Year
Terminable Warrants--Exercise by Holders."
Early termination of five-year
terminable warrants.......... In the event that the one-year warrant included
in such unit terminates or expires without
having been exercised, the corresponding five-
year terminable warrant will also terminate.
The termination of the five-year terminable
warrant will be effective as of the date of the
termination or expiration of the one-year
warrant.
Trading....................... There is no public market for the notes, the
warrants or the units and we do not presently
intend to list any of the notes, the warrants
or the units for trading on any national
securities exchange or for inclusion in any
automated quotation system. No assurance can be
given as to whether any market for the notes,
the warrants or the units will develop. Our
common stock is currently traded on the Nasdaq
National Market under the symbol "TIVO."
Use of Proceeds........... The selling security holders will receive all of
the proceeds from the sale under this prospectus
of the notes, the warrants, the units and the
common stock issuable upon conversion of the notes
and exercise of the warrants.
3
RISK FACTORS
An investment in the securities offered by this prospectus involves a high
degree of risk. You should consider carefully the following risk factors in
addition to the remainder of this prospectus, including the publicly filed
periodic reports that we have incorporated by reference into this prospectus,
before making an investment decision. Although we describe below certain risks
we currently believe are material, such risks and uncertainties are not the
only ones we face. If any of the following risks actually occur, our business,
financial condition or results of operations could be materially and adversely
affected. In such case you may lose all or part of your investment.
Risks Particular to TiVo
Before you decide whether to purchase any of our securities offered by this
prospectus, in addition to the other information in this prospectus, you should
carefully consider the risk factors set forth under the heading "Factors that
May Affect Future Operating Results" in the section entitled "Management's
Discussion and Analysis of Financial Condition and Results of Operations" in
our most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q,
which are incorporated by reference into this prospectus, as the same may be
updated from time to time by our future filings under the Securities Exchange
Act. For more information, see the section entitled "Incorporation by
Reference."
Risks Relating to the Securities
The notes are effectively subordinated to the debt of our subsidiaries.
The notes are obligations exclusively of TiVo. Our cash flow and our ability
to service our debt, including the notes, is partially dependent upon the
earnings of our subsidiaries. Our existing subsidiary is and any future
subsidiaries will be separate and distinct legal entities. Our existing
subsidiary has and any future subsidiaries will have no obligation to pay any
amounts due on the notes or to provide us with funds for our payment
obligations, whether by dividends, distributions, loans or other payments, and
are not prohibited generally from incurring indebtedness under the indenture
governing the notes. In addition, any payment of dividends, distributions,
loans or advances by our existing subsidiary or any future subsidiaries to us
could be subject to statutory or contractual restrictions. Payments to us by
our existing subsidiary or any future subsidiaries will also be contingent upon
that subsidiary's earnings and business considerations.
Our right to receive any assets of our existing subsidiary or any future
subsidiary upon its liquidation or reorganization, and, therefore, your right
to participate in those assets, will be effectively subordinated to the claims
of that subsidiary's creditors, including trade creditors. In addition, even if
we were a creditor of that subsidiary, our rights as a creditor would be
subordinate to any security interest in the assets of that subsidiary and any
indebtedness of that subsidiary senior to that held by us.
The sale of the notes substantially increased our indebtedness which may make
it more difficult to make payments on the notes or to obtain financing in the
future.
As a result of the sale of the notes, we incurred approximately $51.75
million of additional indebtedness. We are not prohibited generally from
incurring additional indebtedness under the indenture governing the notes, and
we may incur substantial additional indebtedness in the future. The level of
our indebtedness, among other things, could:
. make it difficult for us to make payments on the notes;
. make it difficult for us to obtain any necessary financing in the future
for working capital, capital expenditures, debt service requirements or
other purposes;
4
. limit our flexibility in planning for, or reacting to changes in, our
business; and
. make us more vulnerable in the event of a downturn in our business.
There can be no assurance that we will be able to meet our debt service
obligations, including our obligations under the notes.
We may not be able to pay our debt and other obligations.
Our earnings were insufficient to cover our fixed charges by approximately
$206.4 million during our 2000 fiscal year and by approximately $50.2 million
during our fiscal quarter ended April 30, 2001. If the notes had been
outstanding during such periods, we would have had insufficient cash flow to
pay the amount of interest that would have accrued on the notes during such
period, and we cannot assure you that we will be able to pay interest and other
amounts due on the notes as and when they become due and payable. If our cash
flow is inadequate to meet our obligations, we could face substantial liquidity
problems. If we are unable to generate sufficient cash flow or otherwise obtain
funds necessary to make required payments on the notes or our other
obligations, we would be in default under the terms of the notes, which would
permit the holders of the notes to accelerate the maturity of the notes and
could also cause defaults under future indebtedness we may incur. A default
could have a material adverse effect on our business, prospects, financial
condition and operating results. In addition, we cannot assure you that we
would be able to repay amounts due in respect of the notes if payment of the
notes were to be accelerated following the occurrence of an event of default as
defined in the notes indenture.
There is no public market for the notes.
There has been no trading market for the notes or the warrants prior to this
offering and we do not intend to list the notes, the warrants or the units for
trading on any national securities exchange or for inclusion in any automated
quotation system. Although Robertson Stephens, Inc. has advised us that it
presently intends to make a market in the notes, the warrants and the units, as
permitted by applicable laws and regulations, it is not obligated to make a
market in the notes or the warrants. Robertson Stephens, Inc. could stop making
a market at any time without notice. In addition, such market making activity
will be subject to the limits imposed by the Securities Act of 1933 and the
Securities Exchange Act of 1934. Accordingly, no market for the notes or the
warrants may develop, and any market that develops may not last. If an active
market for the notes or the warrants does not develop or is not sustained, the
trading price for the notes or warrants could be materially adversely affected.
We may be required to repurchase the notes upon a repurchase event; however, we
may not have sufficient funds to do so.
You may require us to repurchase all or any portion of your notes upon a
repurchase event. Although there are currently no restrictions on our ability
to pay the repurchase price, future debt agreements may prohibit us from
repaying the repurchase price in cash. If we are prohibited from repurchasing
the notes, we could seek consent from our lenders to repurchase the notes. If
we are unable to obtain their consent, we could attempt to refinance the notes.
If we were unable to obtain a consent or refinance, we would be prohibited from
repurchasing the notes. If we were unable to repurchase notes upon a repurchase
event, it would result in an event of default under our indenture. An event of
default under the indenture could result in a further event of default under
our other then-existing debt. In addition, the occurrence of the repurchase
event may be an event of default under our other debt.
5
If the conversion price on the notes were reduced, it would result in dilution
to the existing holders of our common stock.
The conversion price on the notes will be reduced if the conversion price is
greater than the average closing price per share of our common stock under the
situations described under "Description of Notes-- Conversion Price
Adjustments--Adjustment in the Event Our Common Stock Price Is Less Than the
Conversion Price." In addition, the conversion price on the notes may be
reduced if we issue common stock or common stock equivalents at an issuance
price (or with respect to common stock equivalents, such additional common
stock is issued with a conversion or exercise price per share less than the
conversion price of the notes then in effect immediately prior to the issuance)
that is lower than the conversion price then in effect immediately prior to the
issuance, as more fully described under "Description of Notes--Conversion Price
Adjustments--Adjustment upon Issuance of Additional Stock." If the conversion
price on the notes is reduced as a result of these adjustments, holders of the
notes will receive a greater number of shares of our common stock in connection
with the conversion of the notes, thereby resulting in dilution to the existing
holders of our common stock.
RATIOS OF EARNINGS TO FIXED CHARGES
Ratios of earnings to fixed charges are computed by dividing earnings by
fixed charges. Earnings consist of income before income taxes and amortization
of warrant expense in lieu of financing expenses. Fixed charges consist of
interest on all indebtedness and amortization of warrant expense in lieu of
financing expenses.
The following table sets forth our ratios of earnings to fixed charges for
the periods indicated:
Period from Aug. 4, Year Ended
1997 (Inception), to ----------------------------------------- Month ended Quarter ended
Dec. 31, 1997 Dec. 31, 1998 Dec. 31, 1999 Dec. 31, 2000 Jan. 31, 2001 Apr. 30, 2001
-------------------- ------------- ------------- ------------- ------------- -------------
-- -- -- -- -- --
For the above periods, earnings were insufficient to cover fixed charges by
$595,000, $9,721,000, $66,565,000, $206,354,000, $19,013,000 and $50,184,000 in
fiscal years 1997, 1998, 1999, 2000, one month transition period ended January
31, 2001, and three months ended April 30, 2001, respectively.
6
USE OF PROCEEDS
The selling securityholders will receive all of the proceeds from the sale
under this prospectus of the notes, the warrants, the units and the common
stock issuable upon conversion of the notes and exercise of the warrants. We
will not receive any proceeds from these sales.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
Our common stock is traded on the Nasdaq National Market under the symbol
"TIVO." The following table sets forth, for the calendar and other periods
indicated, the high and low sale prices per share of the common stock as
reported on the Nasdaq National Market:
High Low
------- -------
1999
Third Quarter............................................... 45.0000 29.5000
Fourth Quarter.............................................. 59.3750 24.6250
2000
First Quarter............................................... 78.7500 30.5000
Second Quarter.............................................. 37.5000 15.7500
Third Quarter............................................... 34.9062 16.1875
Fourth Quarter (ended December 31, 2000).................... 20.3750 4.5625
2001
One-month Transitional Period (ended January 31, 2001)...... 9.3750 5.5000
First Quarter (ended April 30, 2001)........................ 7.5312 3.9700
Second Quarter (ended July 31, 2001)........................ 12.2500 4.1000
Third Quarter (ended October 31, 2001)...................... 7.4100 2.7500
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock and do
not expect to do so in the foreseeable future. We currently intend to retain
any earnings to finance the expansion and development of our business. Any
future determination of the payment of dividends will be made at the discretion
of the board of directors based upon various conditions, including our
earnings, future prospects, financial condition and capital requirements as
well as economic and business conditions and such other factors as the board of
directors may deem relevant.
Under the terms of the indenture governing the notes, we are restricted from
declaring or paying any dividends on, or making any distribution with respect
to, our common stock, other than dividends or distributions we make in common
stock or of rights pursuant to any stockholders' rights plan we adopt.
Under the terms of an investment agreement with America Online, Inc., dated
as of June 9, 2000, as amended as of September 11, 2000 and January 30, 2001,
we issued to America Online, Inc. shares of our Series A convertible preferred
stock with certain dividend and voting rights. Dividends on our Series A
convertible preferred stock are calculated by multiplying the non-government
institutional funds simple average rate by $30.00 per share times the number of
shares of our Series A convertible preferred stock outstanding. Dividends on
our Series A convertible preferred stock are payable quarterly as declared by
our board of directors and accumulate and compound quarterly whether or not
declared and to the extent not paid.
7
DESCRIPTION OF NOTES
We issued the notes under an indenture between us and The Bank of New York,
as trustee. The following summary is not complete. It summarizes some, but not
all, of the provisions of the notes, the indenture and the registration rights
agreement. We have filed a copy of the indenture, the form of the notes and the
registration rights agreement as exhibits to the registration statement of
which this prospectus is a part, and you should read the actual terms of those
documents for the definitive terms and conditions. We will provide to you, upon
request, copies of the forms of the notes, indenture and registration rights
agreement. As used in this description, the words "we," "us" or "our" do not
include any existing or future subsidiary of TiVo Inc.
General
The notes are our general unsecured obligations and are pari passu in right
of payment with all of our existing and future unsecured and unsubordinated
indebtedness. The notes are convertible into our common stock. The aggregate
principal amount of the notes is $51,750,000. We issued the notes in fully
registered, definitive form, denominated in integral multiples of $1,000 and
will not be represented by a global security. The notes will mature on August
15, 2006, unless earlier converted, redeemed or repurchased.
The notes will bear interest at the annual rate shown on the cover page of
this prospectus. Interest will accrue on the notes from August 24, 2001.
Interest will be paid on each August 15 and February 15 of each year, beginning
February 15, 2002 subject to limited exceptions if the notes are converted,
redeemed or repurchased prior to an interest payment date. The record dates for
payment of interest will be August 1 and February 1. Interest will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
We will maintain an office in the Borough of Manhattan in New York, New York
where the notes may be presented for registration, transfer, exchange or
conversion. As of the date of this prospectus, this will be an office or agency
of The Bank of New York, located at 20 Broad Street, Lower Level, Corporate
Trust Reorg. Dept., New York, NY 10005, Attention: Corporate Trust
Administration. We may, at our option, pay interest on the notes by check
mailed to the registered holders of notes. However, holders of more than
$500,000 in principal amount of notes may elect in writing to be paid by wire
transfer.
We are not restricted from incurring indebtedness under the indenture.
The notes are effectively subordinated in right of payment to all existing
and future liabilities, including trade payables, if any, of our existing
subsidiary and any future subsidiaries. We report our financial results on a
consolidated basis and therefore do not prepare separate financial statements
for our subsidiary; you should consider the possibility that a significant
portion of our reported liabilities may be liabilities of our subsidiary.
Holders will not be required to pay a service charge for registration or
transfer of their notes. We may, however, require holders to pay any tax or
other governmental charge in connection with the transfer. We are not required
to exchange or register the transfer of:
. any note for a period of 15 days before the mailing of the notice of
redemption;
. any note or portion selected for redemption;
. any note or portion surrendered for conversion; or
. any note or portion surrendered for repurchase but not withdrawn in
connection with a repurchase event.
Conversion by Holders
You may, at your option, convert your notes, in whole or in part, at any
time prior to maturity into our common stock at an initial conversion price of
$6.73 per share. You may convert notes in denominations of $1,000 and multiples
of $1,000.
8
The conversion price is subject to adjustment in the three circumstances
described below under "--Conversion Price Adjustments."
If the notes are called for redemption, your conversion rights on the notes
called for redemption will expire at the close of business of the last business
day before the redemption date, unless we default in payment of the redemption
price. If you have submitted your note for repurchase after a repurchase event,
you may only convert your note if you deliver a withdrawal notice before the
close of business on the last business day before the repurchase date.
Except as described below, we will not make any adjustment for accrued
interest or dividends on common stock upon conversion of the notes. We will pay
in cash, on any note surrendered for conversion during the period from the
close of business on any interest payment date to which interest has been fully
paid through the close of business on the business day preceding the record
date for the next such interest payment date, accrued and unpaid interest, if
any, to, but excluding, the date of conversion. Any such payment of accrued and
unpaid interest will be made within 10 business days after the conversion date.
Any note surrendered for conversion during the period from the close of
business on the record date for any interest payment date through the close of
business on the next business day next preceding such interest payment date
will be accompanied by payment of an amount equal to the interest otherwise
payable on such interest payment date on the principal amount being converted;
provided, however, that no such payment need be made if there exists at the
time of conversion a default in the payment of interest on the notes. We will
pay a cash adjustment for any fractional shares otherwise issuable upon
conversion based on the market price of our common stock on the last business
day before the conversion date.
You can convert your notes by delivering the notes to an office or agency of
the trustee in the Borough of Manhattan, The City of New York, along with a
duly signed and completed notice of conversion and any other documents required
by the indenture, forms of which may be obtained from the trustee. The
conversion date will be the date on which the note and the duly signed and
completed notice of conversion are delivered. We will use our reasonable best
efforts to, within three business days after the conversion date, issue and
deliver to the number of full shares of common stock issuable upon conversion,
We will deliver any cash payment for fractional shares no later than 10
business days after the date of conversion. If you have previously elected to
have us repurchase your notes, you will have to withdraw such election prior to
conversion.
If we have not delivered the number of shares of our common stock issued
upon conversion of notes by any holder within 10 business days after the date
of conversion with respect to such notes, we will pay that holder liquidated
damages in the amount of one percent of the outstanding principal amount of
notes converted by that holder. We will pay any such liquidated damages within
10 business days of the date from which such liquidated damages accrued.
If you deliver a note for conversion, you will not be required to pay any
taxes or duties for the issue or delivery of common stock on conversion.
However, we will not pay any transfer tax or duty payable as a result of the
issuance or delivery of the common stock in a name other than that of the
holder of the note. We will not issue or deliver common stock certificates
unless we have been paid the amount of any transfer tax or duty or we have been
provided satisfactory evidence that the transfer tax or duty has been paid.
Conversion Price Adjustments
Adjustment in the Event Our Common Stock Price Is Less Than the Conversion
Price
The conversion price will be adjusted on November 4, 2001 if the average
closing price per share of our common stock for the 10 consecutive trading days
preceding November 4, 2001 is less than the conversion price on November 4,
2001, to the greater of such average closing price or the floor price of $4.21
per share. The conversion price will also be adjusted on August 23, 2002 if the
average closing price per share of our common stock for the 10 consecutive
trading days preceding August 23, 2002 is less than the conversion price on
August 23, 2002, to the greater of such average closing price or the floor
price of $4.21 per
9
share. In no event will the conversion price be increased by these adjustments.
The floor price of $4.21 per share is subject to antidilution adjustment in
accordance with any antidilution adjustment to the conversion price described
under "--Antidilution Adjustment."
Adjustment upon Issuance of Additional Stock
If at any time prior to August 28, 2003, we issue, in a single transaction,
additional stock consisting of a primary security plus warrants to purchase our
common stock with an effective primary security issuance price that is less
than the effective conversion price otherwise in effect immediately prior to
such issuance, the conversion price for the notes will be adjusted so that the
effective conversion price equals the effective primary security issuance
price.
If at any time prior to August 28, 2003, we issue additional stock in
certain circumstances for a per share price that is less than the effective
conversion price in effect immediately prior to the issuance (or with respect
to additional stock that is a common stock equivalent, such additional stock is
issued with a conversion or exercise price per share less than the effective
conversion price of the notes then in effect immediately prior to the
issuance), the conversion price of the notes will thereupon be adjusted so that
the effective conversion price equals the per share price paid for the
additional stock (or the conversion or exercise price per share of such
additional stock that is a common stock equivalent). In the event that any
common stock equivalent constituting such newly issued additional stock
contains an adjustment provision pursuant to which the conversion or exercise
price of such common stock equivalent may itself be adjusted in certain
circumstances and such adjustment occurs, resulting in a reduction of such
conversion or exercise price to a price lower than the conversion price then in
effect for the notes, regardless of whether such adjustment occurs after August
28, 2003, the conversion price for the notes will be adjusted so that the
effective conversion price equals the adjusted new issuance price.
The term "primary security" means the security, whether in the form of
common stock or a common stock equivalent, to which we allocate for income tax
purposes the largest percentage of the aggregate purchase price for the primary
security plus warrants.
The term "effective conversion price" means the product of the conversion
price for the notes otherwise in effect and 80%, the percentage of the purchase
price for the securities offered hereby we will allocate for income tax
purposes to the notes. The initial effective conversion price is $5.45.
The term "effective primary security issuance price" means the product of
the per share price, conversion price or exercise price, as applicable, of the
primary security and the percentage of the aggregate purchase price for the
primary security plus warrants that we allocate for income tax purposes to the
primary security.
The term "additional stock" means any shares of common stock or common stock
equivalents issued by us other than:
. shares of common stock or common stock equivalents issued in a
transaction covered by the conversion price adjustments described
below in "--Antidilution Adjustment";
. shares of common stock or common stock equivalents issued for noncash
consideration in connection with any arm's length commercial
agreement approved by our board of directors, so long as the
cumulative aggregate market value of all such shares of common stock,
together, with respect to common stock equivalents, with the market
value of all shares of common stock into or for which such common
stock equivalents are convertible, exchangeable or exercisable, which
market value for each such issuance will be measured at the time of
such issuance, does not exceed a cumulative aggregate of $20,000,000,
as determined in reasonable good faith by our board of directors;
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. shares of common stock and common stock equivalents issued for cash
consideration in connection with any arm's length commercial
agreement approved by our board of directors, so long as the
cumulative aggregate market value of all such shares of common stock,
or with respect to common stock equivalents, the cumulative aggregate
market value of all shares of common stock into or for which such
common stock equivalents are convertible, exchangeable or
exercisable, at the time of each such issuance, does not exceed
$10,000,000;
. shares of common stock or common stock equivalents issued or issuable
to our employees, consultants or directors directly or pursuant to a
stock option plan or restricted stock plan approved by our board of
directors;
. warrants with an exercise price that is equal to or greater than the
average closing price of our common stock for the 10 consecutive
trading days preceding the date of issuance of such warrants, issued
to financial institutions or lessors in connection with commercial
credit arrangements or equipment financings;
. shares of common stock or common stock equivalents issuable upon
exercise of common stock equivalents outstanding as of August 28,
2001;
. shares of common stock or common stock equivalents issued in
connection with bona fide acquisitions, mergers or similar
transactions, the terms of which are approved by our board of
directors; and
. shares of common stock issued or issuable upon conversion of the
notes or exercise of the warrants.
The term "common stock equivalents" means:
. any evidence of indebtedness convertible into, exchangeable for or
exercisable for common stock, shares of capital stock, other than
common stock, convertible into, exchangeable for or exercisable for
common stock or other securities convertible into, exchangeable for
or exercisable for common stock; and
. any rights, options or warrants to subscribe for, purchase or
otherwise acquire either common stock or any of the securities
described in the preceding clause.
Antidilution Adjustment
The conversion price of $6.73 per share will be adjusted if:
1. we make a dividend or distribution of our common stock on our common
stock;
2. we subdivide or combine our common stock;
3. we issue rights or warrants to all holders of our common stock to
purchase common stock at less than the market price of our common stock
on the record date for such issuance;
4. we make a dividend or distribution to all holders of our common stock of
capital stock or evidences of indebtedness or assets, but excluding:
. dividends, distributions and rights or warrants referred to in (1)
and (3) above, or
. dividends and distributions paid in cash (except as set forth in
paragraphs (5) and (6) below);
5. we make a dividend or distribution consisting exclusively of cash to all
holders of common stock if the aggregate amount of these distributions
combined together with
. all other all-cash distributions made within the preceding 12 months
in respect of which we made no adjustment plus
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. any cash and the fair market value of other consideration payable in
any tender offers by TiVo or any of our subsidiaries for common stock
concluded within the preceding 12 months in respect for which we made
no adjustment
exceeds 10% of TiVo's market capitalization, being the product of the
then current market price of the common stock multiplied by the number
of shares of our common stock then outstanding;
6. the purchase of common stock pursuant to a tender offer made by TiVo or
any of our subsidiaries involves an aggregate consideration that,
together with
. any cash and the fair market value of any other consideration payable
in any other tender offer by TiVo or any of our subsidiaries for
common stock expiring within the 12 months preceding such tender
offer for which we have made no adjustment plus
. the aggregate amount of any such all-cash distributions referred to
in (5) above to all holders of Common Stock within the 12 months
preceding the expiration of the tender offer for which we have made
no adjustment
exceeds 10% of TiVo's market capitalization on the expiration of such
tender offer; or
7. payment on tender offers or exchange offers by a third party other than
TiVo or our subsidiaries if, as of the closing date of the offer, our
board of directors does not recommend rejection of the offer. We will
only make this adjustment if a tender offer increases the person's
ownership to more than 25% of our outstanding common stock and the
payment per share is greater than the current market price of the common
stock. We will not make this adjustment if the tender offer is a merger
or transaction described below under "Consolidation, Merger or
Assumption."
No adjustment in the conversion price will be required unless it would
result in a change in the conversion price of at least one percent. Any
adjustment not made will be taken into account in subsequent adjustments.
If we implement a new stockholders' rights plan, we will be required under
the indenture to provide that the holders of notes will receive the rights upon
conversion of the notes, whether or not these rights were separated from the
common stock prior to conversion.
Upon the occurrence of any of the following events, each note then
outstanding will, without the consent of the holder of any note, become
convertible only into the kind and amount of shares of stock and other
securities or property or assets, including cash, receivable upon such event by
a holder of a number of shares of common stock issuable upon conversion of such
notes immediately prior to such event:
. reclassification of or change in our outstanding common stock, other
than a change in par value, or from par value to no par value, or
from no par value to par value or as a result of a subdivision or
combination,
. consolidation, merger or combination with another person as a result
of which our stockholders shall be entitled to receive stock,
securities or other property or assets, including cash, with respect
to or in exchange for their common stock,
. a statutory exchange as a result of which our stockholders generally
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their
common stock, or
. sale or conveyance of our properties and assets as, or substantially
as, an entirety to any other person as a result of which our
stockholders shall be entitled to receive stock, securities or other
property or assets, including cash, with respect to or in exchange
for their common stock.
This calculation assumes that a sufficient number of authorized shares of
common stock are available to convert all of the notes. In addition, this
calculation will be made based on the assumption that the holder of
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common stock failed to exercise any rights of election that holders who were
entitled to vote or consent to such transaction may have had to select a
particular type of consideration.
As described under "Certain U.S. Federal Income Tax Consequences," you may,
in some circumstances, be deemed to have received a distribution or dividend
subject to United States federal income tax as a result of an adjustment, or
the nonoccurrence of an adjustment, to the conversion price.
We are permitted to reduce the conversion price of the notes for limited
periods of time, if our board of directors deems it advisable. Any such
reduction shall be effective for not less than 20 days. We are required to give
at least 15 days prior notice of any such reduction. We may also reduce the
conversion price to avoid or diminish income tax to holders of our common stock
in connection with a dividend or distribution of stock or similar event.
Provisional Redemption
We may redeem the notes, in whole or in part, at any time before maturity at
a redemption price, in cash, equal to $1,000 per $1,000 principal amount of the
notes to be redeemed, plus accrued and unpaid interest, if any, to, but
excluding, the date of redemption. Before August 28, 2004, we may only exercise
this right if:
. the closing price per share of our common stock exceeds 200% of the then
effective conversion price (not including the effect of any adjustment
that would otherwise have been made on either the effective registration
adjustment date or August 23, 2002, as described above under "--
Conversion Price Adjustments--Adjustment in the Event Our Common Stock
Price Is Less Than the Conversion Price," or of any additional conversion
price adjustment for issuances of common stock or common stock
equivalents with an effective per share price lower than the then
effective conversion price, as described above under "--Conversion Price
Adjustments--Adjustment upon Issuance of Additional Stock") for any 20
out of 30 consecutive trading days and
. within 10 days following the end of such 30-day period, we mail a notice
of redemption to you.
In order for us to exercise this right prior to the last date on which the
registration statement of which this prospectus is a part is required to remain
effective and available for use pursuant to the registration rights agreement,
the registration statement must be:
. effective and available for use at all times during the period beginning
30 days prior to the date of the redemption notice and ending on the
earlier of the redemption date or the last date on which the registration
statement is required to remain effective and available for use pursuant
to the registration rights agreement, and
. expected to remain effective and available for use until the earlier of
30 days following the redemption date or the last date on which the
registration statement is required to remain effective pursuant to the
registration rights agreement.
You may convert your notes into shares of our common stock at any time prior
to the redemption date, which may not be less than 60 days nor more than 90
days after the date of mailing of the redemption notice. If we redeem some or
all of the notes prior to August 28, 2002, we will make an additional payment
in cash with respect to the notes called for redemption in an amount equal to
$70 per $1,000 principal amount of the notes, less the amount of any interest
we actually paid on the notes before the date we mailed the notice. This
payment represents approximately one year's interest. We must make this
additional payment on all notes called for provisional redemption, including
notes converted after the date we mailed the notice.
Repurchase at Option of Holders upon a Repurchase Event
If a repurchase event occurs, you will have the right, at your option, to
require us to repurchase all or any portion of your notes, in cash, 40 days
after we mail holders and the trustee a notice of the repurchase event. The
repurchase price we are required to pay will be 110% of the principal amount of
the notes submitted for
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repurchase plus accrued and unpaid interest to, but excluding, the repurchase
date. If a repurchase date is an interest payment date, we will pay the
interest to the record holder on the record date. If a redemption date, as
described above under "--Provisional Redemption," occurs prior to any
repurchase date established pursuant to the repurchase notice, provided that we
have deposited or set aside an amount of money sufficient to redeem the notes
on or before the repurchase date, all such notes will be redeemed and the
repurchase rights will have no effect.
We will be required to mail to holders a notice within 10 days after the
occurrence of a repurchase event. The notice must describe the repurchase
event, your right to elect repurchase of the notes and the repurchase date. We
must deliver a copy of the notice to the trustee and cause a copy, or a summary
of the notice, to be published in a newspaper of general circulation in New
York, New York. You may exercise your repurchase rights by delivering written
notice to us and the trustee. The notice must be accompanied by the notes duly
endorsed for transfer to us. You must deliver the exercise notice on or before
the close of business on the thirty-fifth calendar day after the mailing date
of the repurchase notice.
A repurchase event will be considered to have occurred if:
1. our common stock or other common stock into which the notes are
convertible is neither listed for trading on a United States national
securities exchange nor approved for trading on the Nasdaq National
Market or the Nasdaq SmallCap Market, or
2. one of the following "change in control" events occurs:
. any person or group becomes a beneficial owner of more than 50% of
the voting power of our outstanding securities entitled to vote
generally in the election of our directors;
. our stockholders approve any plan or proposal for our liquidation,
dissolution or winding up;
. we consolidate with or merge into any other corporation or any other
corporation merges into us and, as a result, our outstanding common
stock is changed or exchanged for other assets or securities unless
our stockholders immediately before the transaction own, directly or
indirectly, immediately following the transaction at least 51% of
the combined voting power of the corporation resulting from the
transaction in substantially the same proportion as their ownership
of our voting stock immediately before the transaction;
. we convey, transfer or lease all or substantially all of our assets
to any person; or
. the continuing directors, as defined below, do not constitute a
majority of our board of directors at any time.
However, a change in control will not be deemed to have occurred if:
. the closing price per share of our common stock for any 5 trading
days during the 10 trading days immediately before the change in
control is equal to at least 105% of the then effective conversion
price and, if such change in control occurs on a date that is prior
to the last date on which this registration statement is required to
remain effective pursuant to the registration rights agreement, this
registration statement is effective and available for use, or
. all of the consideration, excluding cash payments for fractional
shares, in the case of a merger or consolidation or transfer of
assets constituting the change in control consists of common stock
traded on a United States national securities exchange or quoted on
the Nasdaq National Market or another established automated over-
the-counter trading market in the United States, and as a result of
the transaction the notes become convertible solely into that common
stock. However, this exception will only apply in the event that the
issuer of the common stock has a total market capitalization of at
least $150 million and the product of
. the average daily trading volume of such common stock for the 10
trading days immediately preceding the date on which we execute the
definitive agreement with respect to the transaction
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otherwise constituting a change in control or, in the event no such
definitive agreement is executed, the date on which the transaction
otherwise constituting a change in control is deemed to have occurred,
as we determine in good faith (we refer to either of these dates as the
"measurement date") and
. the average of the daily volume-weighted average per share price of
such common stock for the 10 trading days immediately preceding the
measurement date
exceeds $1.5 million.
The term "continuing director" means at any date a member of our board of
directors:
. who was a member of our board of directors on the closing date; or
. who was nominated or elected by at least a majority of the directors
who were continuing directors at the time of the nomination or
election or whose election to our board of directors was recommended
by at least a majority of the directors who were continuing directors
at the time of the nomination or election or by a nominating
committee whose authority and membership was approved by a majority
of the directors who were continuing directors at the time the
committee was formed.
Under the above definition of continuing directors, if our current board of
directors approves a new director or directors and then resigned, no change in
control would occur, even though all of the current directors would then cease
to be in office.
You may require us to repurchase all or any portion of your notes upon a
repurchase event. We may not have sufficient cash funds to repurchase such
securities upon a repurchase event. Although there are currently no
restrictions on our ability to pay the repurchase price, future debt
agreements may prohibit us from repaying the repurchase price in cash. If we
are prohibited from repurchasing the notes, we could seek consent from our
lenders to repurchase the notes. If we are unable to obtain their consent, we
could attempt to refinance the notes. If we were unable to obtain a consent or
refinance, we would be prohibited from repurchasing the notes. If we were
unable to repurchase notes upon a repurchase event, it would result in an
event of default under the indenture. An event of default under the indenture
could result in a further event of default under our other then-existing debt.
In addition, the occurrence of the repurchase event may be an event of default
under our other debt.
In addition, if we are unable to repurchase on the repurchase date all of
the notes as to which the repurchase right has been properly exercised, the
aggregate amount of notes we may repurchase will be allocated pro rata among
each note surrendered for repurchase, based on the principal amount of the
note, in proportion to the aggregate amount of notes surrendered for
repurchase.
The interpretation of the phrase "all or substantially all" used in the
definition of change in control would likely depend on the facts and
circumstances existing at such time. As a result, there may be uncertainty as
to whether or not a sale or transfer of "all or substantially all" of our
assets has occurred.
The change in control feature may not necessarily afford you protection in
the event of a highly leveraged transaction, a change in control of us or
similar transactions involving us. We could, in the future, enter into
transactions, including recapitalizations, that would not constitute a change
in control but that would increase the amount of our senior indebtedness or
other debt. We are not generally prohibited from incurring indebtedness under
the indenture. If we incur significant amounts of additional indebtedness,
this could have an adverse effect on our ability to make payments on the
notes.
In addition, our management could undertake leveraged transactions that
could constitute a change in control. The board of directors does not have the
right under the indenture to limit or waive the repurchase right in the event
of these types of leveraged transaction. Our requirement to repurchase notes
upon a
15
repurchase event could delay, defer or prevent a change of control. As a
result, the repurchase right may discourage:
. a merger, consolidation or tender offer;
. the assumption of control by a holder of a large block of our shares;
and
. the removal of incumbent management.
The offer to repurchase could be considered an issuer tender offer under
Rule 13e-4 under the Securities Exchange Act of 1934, and we will comply with
this rule to the extent applicable.
Events of Default and Remedies
The following events constitute "events of default" under the indenture:
. we fail to pay the principal or premium, if any, on any of the notes
when due;
. we fail to pay interest on the notes when due or liquidated damages due
under the terms of the registration rights agreement when due if such
failure continues for 30 days;
. we fail to deliver shares of our common stock within 30 calendar days
after conversion of a note;
. we fail to perform any covenant in the indenture if such failure
continues for 60 days after notice is given in accordance with the
indenture;
. we fail to repurchase any notes after a repurchase event;
. we fail to provide timely notice of a repurchase event;
. we fail or any of our significant subsidiaries fail to make any payment
at maturity on any indebtedness (as defined above), including any
applicable grace periods, in an amount in excess of $5,000,000, and such
amount has not been paid or discharged within 30 days after notice is
given in accordance with the indenture;
. a default by us or any significant subsidiary on any indebtedness (as
defined above) that results in the acceleration of indebtedness in an
amount in excess of $5,000,000, without this indebtedness being
discharged or the acceleration being rescinded or annulled for 30 days
after notice is given in accordance with the indenture; or
. certain events involving bankruptcy, insolvency or reorganization of us
or any significant subsidiary under Rule 1-02 of Regulation S-X of the
Securities Act of 1933.
The trustee is generally required under the indenture, within 90 days after
it becomes aware of a default, to provide holders written notice of all
incurred defaults. However, the trustee may, except in the case of a payment
default on the notes, withhold this notice of default if it determines that
withholding the notice is in the best interest of the holders.
If an event of default has occurred and is continuing, the trustee or the
holders of not less than 25% in principal amount of outstanding notes, may
declare the principal and premium on the notes to be immediately due and
payable. After acceleration, but before a judgment or decree based on
acceleration, the holders of a majority in aggregate principal amount of
outstanding notes may rescind the acceleration if all events of default, other
than the payment of principal of and accrued interest on the notes that have
become due solely because of the acceleration, have been cured or waived as
provided in the indenture. If an event of default arising from events of
bankruptcy, insolvency or reorganization occurs and is continuing with respect
to us, all unpaid principal of and accrued interest on the outstanding notes
would become due and payable immediately without any declaration or other act
on the part of the trustee or holders of notes.
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Holders of a majority in principal amount of outstanding notes may direct
the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee, subject to specified limitations. Before exercising any right or power
under the indenture at the direction of the holders, the trustee will be
entitled to receive from such holders reasonable security or indemnity
reasonably satisfactory to it against any costs, expenses and liabilities that
it might incur as a result.
Before you may take any action to institute any proceeding relating to the
indenture, or to appoint a receiver or a trustee, or for any other remedy, each
of the following must occur:
. you must have given the trustee written notice of a continuing event of
default;
. the holders of at least 25% of the aggregate principal amount of all
outstanding notes must make a written request of the trustee to take
action because of the default;
. holders must have offered indemnification reasonably satisfactory to the
trustee against the cost, expenses and liabilities of taking action; and
. the trustee must not have taken action for 60 days after receipt of such
notice and offer of indemnification.
These limitations do not apply to a suit for the enforcement of payment of
the principal of or any premium or interest on a note or the right to convert
the note in accordance with the indenture.
Generally, the holders of not less than a majority of the aggregate
principal amount of outstanding notes may waive any default or event of
default, except if:
. we fail to pay principal, premium or interest on any note when due;
. we fail to convert any note into common stock; or
. we fail to comply with any of the provisions of the indenture that would
require the consent of the holder of each outstanding note affected.
We will send the trustee annually a statement as to whether we are in
default and the nature of any default under the indenture.
Consolidation, Merger or Assumption
We may not consolidate or merge into another person or sell, lease, convey
or transfer all or substantially all of our assets to another person, whether
in a single or series of related transactions, unless:
. either:
. in the case of a merger or consolidation that does not involve a
transfer of all or substantially all of our property and assets, we
are the surviving entity, or
. the resulting entity is a corporation, limited liability company,
partnership or trust and is organized and existing under the laws of
the United States, or any state of the United States or the District
of Columbia and expressly assumes in writing the due and punctual
payment of amounts due on all of the notes and the performance or
observance of all of our covenants under the indenture;
. immediately after giving effect to such transaction, no event of
default, and no event that after notice or lapse of time or both, would
become an event of default, shall have happened and be continuing; and
. the conditions set forth in the indenture are satisfied.
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Certain Covenants
We have agreed that, so long as $12,937,500 or more in aggregate principal
amount of notes remain outstanding, we will not, and will not permit any of our
subsidiaries to, directly or indirectly:
. declare or pay any dividend on, or make any distribution with respect
to, our common stock or the common stock of any of our subsidiaries
(other than dividends or distributions we make in common stock or of
rights pursuant to any stockholders' rights plan we adopt); or
. purchase, redeem or otherwise acquire for value any of our common stock
or common stock of our subsidiaries. These provisions will not, however,
prohibit:
. our compliance with the provisions of our investment agreement with
America Online, Inc. pursuant to which we may be required to
repurchase shares of common stock held by America Online;
. the repurchase, redemption or other acquisition for value of any of
our common stock in exchange for, or out of the net cash proceeds of
the substantially concurrent sale of, any of our other equity
interests;
. the repurchase, redemption or other acquisition for value of any of
our common stock held by any of our or our subsidiaries' employees,
consultants or directors pursuant to any stock option plan or
restricted stock plan, or any employee, consultant, director or
management equity subscription agreement or stock option agreement,
approved by our board of directors;
. dividends or distributions by any of our subsidiaries to another of
our subsidiaries; or
. dividends or distributions by any of our subsidiaries to any other
holder of our common stock made pro rata to all holders of such
subsidiary's common stock.
We have agreed not to permit any of our existing or future subsidiaries to
create incur, issue, assume, guarantee or otherwise become liable, contingently
or otherwise, with respect to any indebtedness in excess of a principal amount
of $5 million. The foregoing provision will not prohibit the incurrence by any
of our subsidiaries of any indebtedness to us or any of our other subsidiaries
or the incurrence of indebtedness by any of our subsidiaries to refund,
refinance or repurchase outstanding indebtedness of any of our other
subsidiaries, provided that there is not outstanding immediately thereafter
indebtedness of our subsidiaries in an aggregate amount exceeding $5 million.
We will file the reports required to be filed by us under the Securities
Exchange Act of 1934, and the rules, regulations and policies adopted by the
Securities and Exchange Commission thereunder in a timely manner in accordance
with the requirements of the Securities Exchange Act of 1934. If at any time we
are not required to file these reports, we will, upon the request of any holder
of the Notes, make available such information as would be necessary to permit
sales of securities of pursuant to Rule 144A under the Securities Act of 1933.
We have agreed to comply with all applicable laws, including the Securities
Act of 1933 and any applicable state securities laws, in connection with the
offer and sale of common stock, and other securities and property deliverable,
upon conversion of the notes.
Modifications of the Indenture
From time to time, we and the trustee, without consent of the holders of the
notes, may amend or supplement the indenture for certain purposes, including
curing defects or inconsistencies or making changes that do not adversely
affect the rights of any holder. In other circumstances, the consent of the
holders of a majority in principal amount of the outstanding notes affected is
required to make a modification or amendment to the indenture. However, a
modification or amendment requires the consent of the holder of each
outstanding note affected if it would:
. extend the maturity date of any note;
18
. reduce the interest rate or extend the time of payment of interest on
any note;
. reduce the principal amount or any premium of any note;
. reduce any amount payable upon redemption or repurchase of any note;
. adversely change our obligation to repurchase any note upon a repurchase
event;
. adversely change the holder's right to institute suit for the payment of
any note;
. change the currency in which any note is payable;
. adversely modify the right to convert the notes;
. subordinate in right of payment the notes to any other indebtedness; or
. reduce the percentage required to consent to modifications and
amendments.
Satisfaction and Discharge
We may discharge our obligations under the indenture while notes remain
outstanding if:
. all notes will become due in one year or are scheduled for redemption in
one year; and
. we deposit sufficient funds to pay all outstanding notes on their
scheduled maturity or redemption date.
19
DESCRIPTION OF FIVE-YEAR WARRANTS
We issued the five-year warrants under a warrant agreement between us and
The Bank of New York, as warrant agent. The following summary is not complete.
It summarizes some, but not all, of the provisions of the five-year warrants,
the warrant agreement and the registration rights agreement. We have filed a
copy of the warrant agreement, the form of the five-year warrants, and the
registration rights agreement as exhibits to the registration statement of
which this prospectus is a part, and you should read the actual terms of those
documents for the definitive terms and conditions. We will provide to you, upon
request, copies of the forms of five-year warrants, the warrant agreement and
registration rights agreement. As used in this description, the words "we,"
"us" or "our" do not include any existing or future subsidiary of TiVo Inc.
General
Each five-year warrant, when exercised, entitles the holder to purchase one
share of our common stock at an exercise price of $7.85 per share. We issued
the five-year warrants in definitive registered form. The five-year warrants
are not represented by a global security. The exercise price and the number of
shares of common stock issuable upon exercise of one five-year warrant are both
subject to adjustment as described below.
The five-year warrants may be exercised at any time on or before 5:00 p.m.,
New York City time, on August 28, 2006.
Any five-year warrant not exercised before the close of business on August
28, 2006 will become void, and all the rights of the holder under the five-year
warrants and the warrant agreement governing the five-year warrants will cease.
No fractional shares of common stock will be issued upon exercise of the
five-year warrants. If any fraction of a share of common stock otherwise would
be issuable on the exercise of any five-year warrant or specified portion of a
five-year warrant, we will pay to the holder an amount in cash based on the
market price of our common stock on the last business day before the exercise
date.
We will maintain an office in the Borough of Manhattan in New York, New York
where the five-year warrants may be presented for registration, transfer,
exchange or conversion. As of the date of this prospectus, this will be an
office or agency of The Bank of New York, located at 20 Broad Street, Lower
Level, Corporate Trust Reorg. Dept., New York, NY 10005, Attention: Corporate
Trust Administration.
Holders will not be required to pay a service charge for registration or
transfer of their five-year warrants. We may, however, require holders to pay
any tax or other governmental charge in connection with the transfer. We are
not required to exchange or register the transfer of:
. any five-year warrant or portion selected for expiration; or
. any five-year warrant or portion surrendered for exercise.
Exercise by Holders
You can exercise your five-year warrants by delivering the warrant
certificate evidencing the five-year warrants to an office or agency of the
warrant agent in the Borough of Manhattan, The City of New York, along with a
duly signed and completed notice of exercise and any other documents required
by the warrant agreement governing the five-year warrants, forms of which may
be obtained from the warrant agent and payment in full of the exercise price
for each share of common stock or other security issuable upon exercise of the
five-year warrants. The exercise date will be the date on which the warrant
certificate, the duly signed and completed notice of exercise, a letter for the
holder containing representations and agreements relating to the restrictions
on transfer of the shares of common stock issued upon exercise of the five-year
warrants and an opinion of counsel if we or the warrant agent requests, except
in the case of a cashless exercise, as described
20
below, that is in compliance with Section 3(a)(9) of the Securities Act of
1933, and any other documentation or certifications reasonably requested by us
or the warrant agent are delivered. As soon as practicable after the exercise
of any five-year warrant as described above, we will issue or cause to be
issued to or upon the written order of the registered holder of the warrant
certificate evidencing the exercised five-year warrant, a certificate or
certificates evidencing the shares of common stock to which the holder is
entitled, in fully registered form, registered in such name or names as may be
directed by the holder pursuant to notice of exercise.
The exercise price may be paid:
. in cash or by certified or official check or by wire transfer to an
account designated by us for such purpose;
. by tendering a principal amount of notes in integral multiples of
$1,000, including any accrued interest thereon, equal to, together with
any payment of cash pursuant to the bullet point above, the exercise
price; or
. without the payment of cash, which we sometimes refer to as a "cashless
exercise," by reducing the number of shares common stock that would be
obtainable upon the exercise of one five-year warrant and payment of the
exercise price in cash so as to yield a number of shares of common stock
upon the exercise of such five-year warrant equal to the product of
. the number of shares of common stock for which such five-year warrant
is exercisable as of the date of exercise, if the exercise price were
being paid in cash, and
. the cashless exercise ratio.
The "cashless exercise ratio" is a fraction, the numerator of which is the
excess of the current market value per share of common stock based on the
market price of our common stock on the last trading day before the exercise
date over the exercise price per share as of the last trading day before the
exercise date and the denominator of which is the market price per share of the
common stock on the last trading day before the exercise date. Upon surrender
of one five-year warrant certificate representing more than one five-year
warrant in connection with the holder's option to elect a cashless exercise,
the number of shares of common stock deliverable upon a cashless exercise shall
be equal to the number of shares of common stock issuable upon the exercise of
five-year warrants that the holder specifies are to be exercised pursuant to a
cashless exercise multiplied by the cashless exercise ratio. All provisions of
the warrant agreement governing the five-year warrants shall be applicable with
respect to a surrender of a warrant certificate pursuant to a cashless exercise
for less than the full number of five-year warrants represented thereby. If any
holder exercises less than all of the warrants evidenced by a warrant
certificate, a new warrant certificate will be issued to such holder for the
remaining number of five-year warrants.
If you deliver a warrant certificate for exercise, you will not be required
to pay any taxes or duties for the issue or delivery of common stock on
exercise. However, we will not pay any transfer tax or duty payable as a result
of the issuance or delivery of the common stock in a name other than that of
the holder of the five-year warrant. We will not issue or deliver common stock
certificates unless we have been paid the amount of any transfer tax or duty or
we have been provided satisfactory evidence that the transfer tax or duty has
been paid.
The number of shares issuable upon exercise of the five-year warrants and
the exercise price of $7.85 per share will be adjusted if:
1. we make a dividend or distribution of our common stock on our common
stock;
2. we subdivide or combine our common stock;
3. we issue rights or warrants to all holders of our common stock to
purchase common stock at less than the market price of our common stock
on the record date for such issuance;
21
4. we make a dividend or distribution to all holders of our common stock of
capital stock or evidences of indebtedness or assets, but excluding:
. dividends, distributions and rights or warrants referred to in (1)
and (3) above, or
. dividends and distributions paid exclusively in cash (except as set
forth in paragraphs (5) and (6) below);
5. we make a dividend or distribution consisting exclusively of cash to all
holders of common stock if the aggregate amount of these distributions
combined together with
. all other all-cash distributions made within the preceding 12 months
in respect of which we made no adjustment plus
. any cash and the fair market value of other consideration payable in
any tender offers by TiVo or any of our subsidiaries for common
stock concluded within the preceding 12 months in respect for which
we made no adjustment,
exceeds 10% of TiVo's market capitalization, being the product of the
then current market price of the common stock multiplied by the number
of shares of our common stock then outstanding;
6. the purchase of common stock pursuant to a tender offer made by TiVo or
any of our subsidiaries involves an aggregate consideration that,
together with
. any cash and the fair market value of any other consideration
payable in any other tender offer by TiVo or any of our subsidiaries
for common stock expiring within the 12 months preceding such tender
offer for which we have made no adjustment plus
. the aggregate amount of any such all-cash distributions referred to
in (5) above to all holders of common stock within the 12 months
preceding the expiration of the tender offer for which we have made
no adjustment
exceeds 10% of TiVo's market capitalization on the expiration of such
tender offer; or
7. payment on tender offers or exchange offers by a third party other than
TiVo or our subsidiaries if, as of the closing date of the offer, our
board of directors does not recommend rejection of the offer. We will
only make this adjustment if a tender offer increases the person's
ownership to more than 25% of our outstanding common stock and the
payment per share is greater than the current market price of the common
stock. We will not make this adjustment if the tender offer is a merger
or transaction described below under "Consolidation, Merger or
Assumption."
If we implement a new stockholders' rights plan, we will be required under
the warrant agreement to provide that the holders of five-year warrants will
receive the rights upon exercise of the five-year warrants, whether or not
these rights were separated from the common stock prior to exercise.
Upon the occurrence of any of the following events, each five-year warrant
then outstanding will, without the consent of the holder of any five-year
warrant, become exercisable only into the kind and amount of shares of stock
and other securities or property or assets, including cash, receivable upon
such event by a holder of a number of shares of common stock issuable upon
exercise of such five-year warrants immediately prior to such event:
. reclassification of or change in our outstanding common stock, other
than a change in par value, or from par value to no par value, or from
no par value to par value or as a result of a subdivision or
combination,
. consolidation, merger or combination with another person as a result of
which our stockholders shall be entitled to receive stock, securities or
other property or assets, including cash, with respect to or in exchange
for their common stock,
. a statutory exchange as a result of which our stockholders generally
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their common
stock, or
22
. sale or conveyance of our properties and assets as, or substantially as,
an entirety to any other person as a result of which our stockholders
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their common
stock.
This calculation assumes that a sufficient number of authorized shares of
common stock are available to exercise all of the five-year warrants. In
addition, this calculation will be made based on the assumption that the holder
of common stock failed to exercise any rights of election that holders who were
entitled to vote or consent to such transaction may have had to select a
particular type of consideration.
As described under "Certain U.S. Federal Income Tax Consequences," you may,
in some circumstances, be deemed to have received a distribution or dividend
subject to United States federal income tax as a result of an adjustment, or
the nonoccurrence of an adjustment, to the exercise price.
No adjustment in the number of shares issuable upon exercise of the five-
year warrants or in the exercise price will be required unless it would result
in an increase or decrease of at least one percent in the number of shares
issuable upon exercise of the five-year warrants or in the exercise price. Any
adjustment not made will be taken into account in subsequent adjustments.
No Rights as Stockholders
The holders of unexercised five-year warrants are not entitled, as such, to
receive cash dividends or other distributions, vote on matters submitted to our
stockholders, consent to any action of the stockholders or receive notice of
any meeting of the stockholders or any other stockholder proceedings.
Modifications of the Warrant Agreement
From time to time, we and the warrant agent, without consent of the holders
of the five-year warrants, may amend or supplement the warrant agreement for
certain purposes, including curing defects or inconsistencies or making changes
that do not materially adversely affect the rights of any holder. Any amendment
or supplement to the warrant agreement that has a material adverse effect on
the interests of the holders of the five-year warrants requires the written
consent of the holders of a majority of the then outstanding five-year
warrants. The consent of each holder of the five-year warrants affected is
required for any amendment pursuant to which the exercise price would be
increased, the redemption price of the five-year warrants would be decreased,
or the number of warrant shares purchasable upon exercise of five-year warrants
would be decreased, other than pursuant to adjustments provided for in the
warrant agreement as generally described above and as amended by holders of a
majority of the then outstanding five-year warrants.
Certain Covenants
We will file the reports required to be filed by us under the Securities
Exchange Act of 1934, and the rules, regulations and policies adopted by the
Securities and Exchange Commission thereunder in a timely manner in accordance
with the requirements of the Securities Exchange Act of 1934. If at any time we
are not required to file these reports, we will, upon the request of any holder
of the five-year warrants, make available such information as would be
necessary to permit sales of securities of pursuant to Rule 144A under the
Securities Act of 1933.
We have agreed to comply with all applicable laws, including the Securities
Act of 1933 and any applicable state securities laws, in connection with the
offer and sale of common stock, and other securities and property deliverable,
upon exercise of the five-year warrants.
23
DESCRIPTION OF UNITS
Each unit consists of one one-year warrant to purchase one share of our
common stock and one five-year terminable warrant to purchase .33 of a share of
our common stock. The one-year warrant and the five-year terminable warrant
that comprise each unit will not be separately transferable, except that upon
the exercise of the one-year warrant, the five-year terminable warrant may
thereafter be separately transferred. The terms of the one-year warrants and
the five-year terminable warrants are described below.
Description of One-Year Warrants
We issued the one-year warrants under a warrant agreement between us and The
Bank of New York, as warrant agent. The following summary is not complete. It
summarizes some, but not all, of the provisions of the one-year warrants, the
warrant agreement and the registration rights agreement. We have filed a copy
of the warrant agreement, the form of the one-year warrants, and the
registration rights agreement as exhibits to the registration statement of
which this prospectus is a part, and you should read the actual terms of those
documents for the definitive terms and conditions. We will provide to you, upon
request, copies of the forms of one-year warrants, the warrant agreement and
registration rights agreement. As used in this description, the words "we,"
"us" or "our" do not include any existing or future subsidiary of TiVo Inc.
General
Each one-year warrant, when exercised, entitles the holder to purchase one
share of our common stock at an exercise price of $6.73 per share. We issued
the one-year warrants in definitive registered form. The one-year warrants are
not represented by a global security. The exercise price and the number of
shares of common stock issuable upon exercise of one one-year warrant are both
subject to adjustment as described below.
The one-year warrants may be exercised, unless earlier terminated at our
option as set forth below under "--Termination at Our Option," at any time on
or before 5:00 p.m., New York City time, on August 28, 2002. The one-year
warrants are not separately transferable from the five-year terminable
warrants. The one-year warrants and the five-year terminable warrants are
separately exercisable. However, the five-year terminable warrants are not
exercisable until the one-year warrants with which such five-year terminable
warrants comprise units have been exercised, and the units have been separated.
See "Description of Five-Year Terminable Warrants--Exercise by Holders."
Any one-year warrant not terminated or exercised before the close of
business August 28, 2002 will become void, and all the rights of the holder
under the one-year warrant and the warrant agreement governing the one-year
warrants will cease.
No fractional shares of common stock will be issued upon exercise of the
one-year warrants. If any fraction of a share of common stock otherwise would
be issuable on the exercise of any one-year warrant or specified portion of a
one-year warrant, we will pay to the holder an amount in cash based on the
market price of our common stock on the last business day before the exercise
date.
We will maintain an office in the Borough of Manhattan in New York, New York
where the one-year warrants may be presented for registration, transfer,
exchange or conversion. As of the date of this prospectus, this will be an
office or agency of The Bank of New York, located at 20 Broad Street, Lower
Level, Corporate Trust Reorg. Dept., New York, NY 10005, Attention: Corporate
Trust Administration.
Holders will not be required to pay a service charge for registration or
transfer of their one-year warrants. We may, however, require holders to pay
any tax or other governmental charge in connection with the transfer. We are
not required to exchange or register the transfer of:
. any one-year warrant for a period of 15 days before the mailing of the
notice of termination;
24
. any one-year warrant or portion selected for expiration; or
. any one-year warrant or portion surrendered for exercise.
Exercise by Holders
You can exercise your one-year warrants by delivering the warrant
certificate evidencing the one-year warrants and the warrant certificate
evidencing the five-year terminable warrants to an office or agency of the
warrant agent in the Borough of Manhattan, The City of New York, along with a
duly signed and completed notice of exercise and any other documents required
by the warrant agreement governing the one-year warrants, forms of which may be
obtained from the warrant agent and payment in full of the exercise price for
each share of common stock or other security issuable upon exercise of the one-
year warrants. The exercise date will be the date on which the warrant
certificate, the duly signed and completed notice of exercise, a letter for the
holder containing representations and agreements relating to the restrictions
on transfer of the shares of common stock issued upon exercise of the one-year
warrants and an opinion of counsel if we or the warrant agent requests, and any
other documentation or certifications reasonably requested by us or the warrant
agent are delivered. As soon as practicable after the exercise of any one-year
warrant as described above, we will issue or cause to be issued to or upon the
written order of the registered holder of the warrant certificate evidencing
the exercised one-year warrant, a certificate or certificates evidencing the
shares of common stock to which the holder is entitled, in fully registered
form, registered in such name or names as may be directed by the holder
pursuant to notice of exercise. We will issue or cause to be issued to or upon
the written order of the registered holder of the warrant certificate
evidencing such five-year terminable warrants, a certificate or certificates
evidencing any separated five-year terminable warrants.
The exercise price must be paid in cash or by certified or official check or
by wire transfer to an account designated by us for such purpose. If any holder
exercises less than all of the one-year warrants evidenced by a warrant
certificate, a new warrant certificate will be issued to such holder for the
remaining number of one-year warrants.
If you deliver a warrant certificate for exercise, you will not be required
to pay any taxes or duties for the issue or delivery of common stock on
exercise. However, we will not pay any transfer tax or duty payable as a result
of the issuance or delivery of the common stock in a name other than that of
the holder of the one-year warrant. We will not issue or deliver common stock
certificates unless we have been paid the amount of any transfer tax or duty or
we have been provided satisfactory evidence that the transfer tax or duty has
been paid.
The number of shares issuable upon exercise of the one-year warrants and the
exercise price of $6.73 per share will be adjusted if:
1. we make a dividend or distribution of our common stock on our common
stock;
2. we subdivide or combine our common stock;
3. we issue rights or warrants to all holders of our common stock to
purchase common stock at less than the market price of our common stock
on the record date for such issuance;
4. we make a dividend or distribution to all holders of our common stock of
capital stock or evidences of indebtedness or assets, but excluding:
. dividends, distributions and rights or warrants referred to in (1) and
(3) above, or
. dividends and distributions paid exclusively in cash (except as set
forth in paragraphs (5) and (6) below);
25
5. we make a dividend or distribution consisting exclusively of cash to all
holders of common stock if the aggregate amount of these distributions
combined together with
. all other all-cash distributions made within the preceding 12 months
in respect of which we made no adjustment plus
. any cash and the fair market value of other consideration payable in
any tender offers by TiVo or any of our subsidiaries for common stock
concluded within the preceding 12 months in respect for which we made
no adjustment,
exceeds 10% of TiVo's market capitalization, being the product of the
then current market price of the common stock multiplied by the number of
shares of our common stock then outstanding;
6. the purchase of common stock pursuant to a tender offer made by TiVo or
any of our subsidiaries involves an aggregate consideration that,
together with
. any cash and the fair market value of any other consideration payable
in any other tender offer by TiVo or any of our subsidiaries for
common stock expiring within the 12 months preceding such tender offer
for which we have made no adjustment plus
. the aggregate amount of any such all-cash distributions referred to in
(5) above to all holders of common stock within the 12 months
preceding the expiration of the tender offer for which we have made no
adjustment
exceeds 10% of TiVo's market capitalization on the expiration of such
tender offer; or
7. payment on tender offers or exchange offers by a third party other than
TiVo or our subsidiaries if, as of the closing date of the offer, our
board of directors does not recommend rejection of the offer. We will
only make this adjustment if a tender offer increases the person's
ownership to more than 25% of our outstanding common stock and the
payment per share is greater than the current market price of the common
stock. We will not make this adjustment if the tender offer is a merger
or transaction described below under "Consolidation, Merger or
Assumption."
If we implement a new stockholders' rights plan, we will be required under
the warrant agreement governing the one-year warrants to provide that the
holders of one-year warrants will receive the rights upon exercise of the one-
year warrants, whether or not these rights were separated from the common
stock prior to exercise.
Upon the occurrence of any of the following events, each one-year warrant
then outstanding will, without the consent of the holder of any one-year
warrant, become exercisable only into the kind and amount of shares of stock
and other securities or property or assets (including cash) receivable upon
such event by a holder of a number of shares of common stock issuable upon
exercise of such one-year warrants immediately prior to such event:
. reclassification of or change in our outstanding common stock, other than
a change in par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination,
. consolidation, merger or combination with another person as a result of
which our stockholders shall be entitled to receive stock, securities or
other property or assets, including cash, with respect to or in exchange
for their common stock,
. a statutory exchange as a result of which our stockholders generally
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their common
stock, or
. sale or conveyance of our properties and assets as, or substantially as,
an entirety to any other person as a result of which our stockholders
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their common
stock.
26
This calculation assumes that a sufficient number of authorized shares of
common stock are available to exercise all of the one-year warrants. In
addition, this calculation will be made based on the assumption that the holder
of common stock failed to exercise any rights of election that holders who were
entitled to vote or consent to such transaction may have had to select a
particular type of consideration.
As described under "Certain U.S. Federal Income Tax Consequences," you may,
in some circumstances, be deemed to have received a distribution or dividend
subject to United States federal income tax as a result of an adjustment, or
the nonoccurrence of an adjustment, to the exercise price.
No adjustment in the number of shares issuable upon exercise of the one-year
warrants or in the exercise price will be required unless it would result in an
increase or decrease of at least one percent in the number of shares issuable
upon exercise of the one-year warrants or in the exercise price. Any adjustment
not made will be taken into account in subsequent adjustments.
Termination at Our Option
We may terminate the one-year warrants at any time if the closing price per
share of our common stock exceeds 150% of the then effective exercise price for
any 20 out of 30 consecutive trading days (we refer to this as the
"determination period") and a shelf registration statement covering resales of
the common stock issuable upon exercise of the one-year warrants is effective
and available for use at all times during the period beginning 60 days prior to
the date on which we mail notice of the termination of the one-year warrants
and ending on the 60th day after the mailing date of the notice of termination,
and is expected to remain effective and available for use at least 30 days
following such 60th day. If we elect to terminate the one-year warrants, we may
only do so if, within 30 days after the end of the determination period, we
provide notice of termination to you. The one-year warrants will expire 60 days
after the mailing date of the notice of termination.
No Rights as Stockholders
The holders of unexercised one-year warrants are not entitled, as such, to
receive cash dividends or other distributions, vote on matters submitted to our
stockholders, consent to any action of the stockholders or receive notice of
any meeting of the stockholders or any other stockholder proceedings.
Modifications of the Warrant Agreement
From time to time, we and the warrant agent, without consent of the holders
of the one-year warrants, may amend or supplement the warrant agreement
governing the one-year warrants for certain purposes, including curing defects
or inconsistencies or making changes that do not materially adversely affect
the rights of any holder. Any amendment or supplement to the warrant agreement
governing the one-year warrants that has a material adverse effect on the
interests of the holders of the one-year warrants requires the written consent
of the holders of a majority of the then outstanding one-year warrants. The
consent of each holder of one-year warrants affected is required for any
amendment pursuant to which the exercise price would be increased, the
redemption price of the one-year warrants would be decreased, or the number of
warrant shares purchasable upon exercise of one-year warrants would be
decreased, other than pursuant to adjustments provided for in the warrant
agreement governing the one-year warrants as generally described above and as
amended by holders of a majority of the then outstanding one-year warrants.
27
Certain Covenants
We will file the reports required to be filed by us under the Securities
Exchange Act of 1934, and the rules, regulations and policies adopted by the
Securities and Exchange Commission thereunder in a timely manner in accordance
with the requirements of the Securities Exchange Act of 1934. If at any time we
are not required to file these reports, we will, upon the request of any holder
of the one-year warrants, make available such information as would be necessary
to permit sales of securities of pursuant to Rule 144A under the Securities Act
of 1933.
We have agreed to comply with all applicable laws, including the Securities
Act of 1933 and any applicable state securities laws, in connection with the
offer and sale of common stock, and other securities and property deliverable,
upon exercise of the one-year warrants.
28
Description of Five-Year Terminable Warrants
We issued the five-year terminable warrants under a warrant agreement
between us and The Bank of New York, as warrant agent. The following summary is
not complete. It summarizes some, but not all, of the provisions of the five-
year terminable warrants, the warrant agreement and the registration rights
agreement. We have filed a copy of the warrant agreement, the form of the five-
year terminable warrants, and the registration rights agreement as exhibits to
the registration statement of which this prospectus is a part, and you should
read the actual terms of those documents for the definitive terms and
conditions. We will provide to you, upon request, copies of the forms of five-
year terminable warrants, the warrant agreement and registration rights
agreement. As used in this description, the words "we," "us" or "our" do not
include any existing or future subsidiary of TiVo Inc.
General
Each five-year terminable warrant, when exercised, entitles the holder to
purchase .33 of a share of our common stock at an exercise price of $7.85 per
share. We issued the five-year terminable warrants in definitive registered
form. The five-year terminable warrants are not represented by a global
security. The exercise price and the number of shares of common stock issuable
upon exercise of one five-year terminable warrant are both subject to
adjustment as described below.
The five-year terminable warrants may be exercised at any time on or before
5:00 p.m., New York City time, on August 28, 2006, subject to early termination
as described under "--Termination upon Termination of the One-Year Warrants."
The five-year terminable warrants are not separately transferable, except that
upon the exercise of the one-year warrant, the five-year terminable warrant may
thereafter be separately transferred. The one-year warrants and the five-year
terminable warrants are separately exercisable. However, as described below,
the five-year terminable warrants are not exercisable until the one-year
warrants with which such five-year terminable warrants comprise units have been
exercised, and the units have been separated.
Any five-year terminable warrant not exercised or terminated before the
close of business on August 28, 2006 will become void, and all the rights of
the holder under the five-year terminable warrants and the warrant agreement
governing the five-year terminable warrants will cease.
No fractional shares of common stock will be issued upon exercise of the
five-year terminable warrants. If any fraction of a share of common stock
otherwise would be issuable on the exercise of any five-year terminable warrant
or specified portion of a five-year terminable warrant, we will pay to the
holder an amount in cash based on the market price of our common stock on the
last business day before the exercise date.
We will maintain an office in the Borough of Manhattan in New York, New York
where the five-year terminable warrants may be presented for registration,
transfer, exchange or conversion. As of the date of this prospectus, this will
be an office or agency of The Bank of New York, located at 20 Broad Street,
Lower Level, Corporate Trust Reorg. Dept., New York, NY 10005, Attention:
Corporate Trust Administration.
Holders will not be required to pay a service charge for registration or
transfer of their five-year terminable warrants. We may, however, require
holders to pay any tax or other governmental charge in connection with the
transfer. We are not required to exchange or register the transfer of:
. any five-year terminable warrant or portion selected for expiration; or
. any five-year terminable warrant or portion surrendered for exercise.
Exercise by Holders
You can exercise your five-year terminable warrants at any time on or after
the separation date for such warrant and on or before August 28, 2006, subject
to early termination as described below under "--Termination upon Termination
of the One-Year Warrants," by delivering the warrant certificate evidencing
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the five-year terminable warrants to an office or agency of the warrant agent
in the Borough of Manhattan, The City of New York, along with a duly signed and
completed notice of exercise and any other documents required by the warrant
agreement governing the five-year terminable warrants, forms of which may be
obtained from the warrant agent and payment in full of the exercise price for
each share of common stock or other security issuable upon exercise of the
five-year terminable warrants. The exercise date will be the date on which the
warrant certificate, the duly signed and completed notice of exercise, a letter
for the holder containing representations and agreements relating to the
restrictions on transfer of the shares of common stock issued upon exercise of
the five-year terminable warrants and an opinion of counsel if we or the
warrant agent requests, except in the case of a cashless exercise, as described
below, that is in compliance with Section 3(a)(9) of the Securities Act of
1933, and any other documentation or certifications reasonably requested by us
or the warrant agent are delivered. As soon as practicable after the exercise
of any five-year terminable warrant as described above, we will issue or cause
to be issued to or upon the written order of the registered holder of the
warrant certificate evidencing the exercised five-year terminable warrant, a
certificate or certificates evidencing the shares of common stock to which the
holder is entitled, in fully registered form, registered in such name or names
as may be directed by the holder pursuant to notice of exercise.
The exercise price may be paid:
. in cash or by certified or official check or by wire transfer to an
account designated by us for such purpose;
. by tendering a principal amount of notes in integral multiples of
$1,000, including any accrued interest thereon, equal to, together with
any payment of cash pursuant to the bullet point above, the exercise
price; or
. without the payment of cash, which we sometimes refer to as a "cashless
exercise," by reducing the number of shares common stock that would be
obtainable upon the exercise of one five-year terminable warrant and
payment of the exercise price in cash so as to yield a number of shares
of common stock upon the exercise of such five-year terminable warrant
equal to the product of
. the number of shares of common stock for which such five-year
terminable warrant is exercisable as of the date of exercise, if the
exercise price were being paid in cash, and
. the cashless exercise ratio.
The "cashless exercise ratio" is a fraction, the numerator of which is the
excess of the current market value per share of common stock based on the
market price of our common stock on the last trading day before the exercise
date over the exercise price per share as of the last trading day before the
exercise date and the denominator of which is the market price per share of the
common stock on the last trading day before the exercise date. Upon surrender
of one five-year terminable warrant certificate representing more than one
five-year terminable warrant in connection with the holder's option to elect a
cashless exercise, the number of shares of common stock deliverable upon a
cashless exercise shall be equal to the number of shares of common stock
issuable upon the exercise of five-year terminable warrants that the holder
specifies are to be exercised pursuant to a cashless exercise multiplied by the
cashless exercise ratio. All provisions of the warrant agreement governing the
five-year terminable warrants shall be applicable with respect to a surrender
of a warrant certificate pursuant to a cashless exercise for less than the full
number of five-year terminable warrants represented thereby. If any holder
exercises less than all of the warrants evidenced by a warrant certificate, a
new warrant certificate will be issued to such holder for the remaining number
of five-year terminable warrants.
If you deliver a warrant certificate for exercise, you will not be required
to pay any taxes or duties for the issue or delivery of common stock on
exercise. However, we will not pay any transfer tax or duty payable as a result
of the issuance or delivery of the common stock in a name other than that of
the holder of the five-year terminable warrant. We will not issue or deliver
common stock certificates unless we have been paid the amount of any transfer
tax or duty or we have been provided satisfactory evidence that the transfer
tax or duty has been paid.
30
The number of shares issuable upon exercise of the five-year terminable
warrants and the exercise price of $7.85 per share will be adjusted if:
1. we make a dividend or distribution of our common stock on our common
stock;
2. we subdivide or combine our common stock;
3. we issue rights or warrants to all holders of our common stock to
purchase common stock at less than the market price of our common stock
on the record date for such issuance;
4. we make a dividend or distribution to all holders of our common stock of
capital stock or evidences of indebtedness or assets, but excluding:
. dividends, distributions and rights or warrants referred to in (1)
and (3) above, or
. dividends and distributions paid exclusively in cash (except as set
forth in paragraphs (5) and (6) below);
5. we make a dividend or distribution consisting exclusively of cash to all
holders of common stock if the aggregate amount of these distributions
combined together with
. all other all-cash distributions made within the preceding 12 months
in respect of which we made no adjustment plus
. any cash and the fair market value of other consideration payable in
any tender offers by TiVo or any of our subsidiaries for common
stock concluded within the preceding 12 months in respect for which
we made no adjustment,
exceeds 10% of TiVo's market capitalization, being the product of the
then current market price of the common stock multiplied by the number
of shares of our common stock then outstanding;
6. the purchase of common stock pursuant to a tender offer made by TiVo or
any of our subsidiaries involves an aggregate consideration that,
together with
. any cash and the fair market value of any other consideration
payable in any other tender offer by TiVo or any of our subsidiaries
for common stock expiring within the 12 months preceding such tender
offer for which we have made no adjustment plus
. the aggregate amount of any such all-cash distributions referred to
in (5) above to all holders of common stock within the 12 months
preceding the expiration of the tender offer for which we have made
no adjustment
exceeds 10% of TiVo's market capitalization on the expiration of such
tender offer; or
7. payment on tender offers or exchange offers by a third party other than
TiVo or our subsidiaries if, as of the closing date of the offer, our
board of directors does not recommend rejection of the offer. We will
only make this adjustment if a tender offer increases the person's
ownership to more than 25% of our outstanding common stock and the
payment per share is greater than the current market price of the common
stock. We will not make this adjustment if the tender offer is a merger
or transaction described below under "Consolidation, Merger or
Assumption."
If we implement a new stockholders' rights plan, we will be required under
the warrant agreement to provide that the holders of five-year terminable
warrants will receive the rights upon exercise of the five-year terminable
warrants, whether or not these rights were separated from the common stock
prior to exercise.
31
Upon the occurrence of any of the following events, each five-year
terminable warrant then outstanding will, without the consent of the holder of
any five-year terminable warrant, become exercisable only into the kind and
amount of shares of stock and other securities or property or assets, including
cash, receivable upon such event by a holder of a number of shares of common
stock issuable upon exercise of such five-year terminable warrants immediately
prior to such event:
. reclassification of or change in our outstanding common stock, other
than a change in par value, or from par value to no par value, or from
no par value to par value or as a result of a subdivision or
combination,
. consolidation, merger or combination with another person as a result of
which our stockholders shall be entitled to receive stock, securities or
other property or assets, including cash, with respect to or in exchange
for their common stock,
. a statutory exchange as a result of which our stockholders generally
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their common
stock, or
. sale or conveyance of our properties and assets as, or substantially as,
an entirety to any other person as a result of which our stockholders
shall be entitled to receive stock, securities or other property or
assets, including cash, with respect to or in exchange for their common
stock.
This calculation assumes that a sufficient number of authorized shares of
common stock are available to exercise all of the five-year terminable
warrants. In addition, this calculation will be made based on the assumption
that the holder of common stock failed to exercise any rights of election that
holders who were entitled to vote or consent to such transaction may have had
to select a particular type of consideration.
As described under "Certain U.S. Federal Income Tax Consequences," you may,
in some circumstances, be deemed to have received a distribution or dividend
subject to United States federal income tax as a result of an adjustment, or
the nonoccurrence of an adjustment, to the exercise price.
No adjustment in the number of shares issuable upon exercise of the five-
year terminable warrants or in the exercise price will be required unless it
would result in an increase or decrease of at least one percent in the number
of shares issuable upon exercise of the five-year terminable warrants or in the
exercise price. Any adjustment not made will be taken into account in
subsequent adjustments.
Termination upon Termination of the One-Year Warrants
With respect to any five-year terminable warrant, if the one-year warrant
with which such five-year terminable warrant comprises a unit expires
unexercised on August 28, 2002 or terminates as described above under
"Description of One-Year Warrants--Termination at Our Option," without having
been exercised pursuant to the terms thereof, then such five-year terminable
warrant shall become void, and all rights of the holder under the certificate
evidencing such five-year terminable warrant and under the warrant agreement
governing the five-year terminable warrant shall cease.
No Rights as Stockholders
The holders of unexercised five-year terminable warrants are not entitled,
as such, to receive cash dividends or other distributions, vote on matters
submitted to our stockholders, consent to any action of the stockholders or
receive notice of any meeting of the stockholders or any other stockholder
proceedings.
Modifications of the Warrant Agreement
From time to time, we and the warrant agent, without consent of the holders
of the five-year terminable warrants, may amend or supplement the warrant
agreement for certain purposes, including curing defects or
32
inconsistencies or making changes that do not materially adversely affect the
rights of any holder. Any amendment or supplement to the warrant agreement that
has a material adverse effect on the interests of the holders of the five-year
terminable warrants requires the written consent of the holders of a majority
of the then outstanding five-year terminable warrants. The consent of each
holder of the five-year terminable warrants affected is required for any
amendment pursuant to which the exercise price would be increased, the
redemption price of the five-year terminable warrants would be decreased, or
the number of warrant shares purchasable upon exercise of five-year terminable
warrants would be decreased, other than pursuant to adjustments provided for in
the warrant agreement as generally described above and as amended by holders of
a majority of the then outstanding five-year terminable warrants.
Certain Covenants
We will file the reports required to be filed by us under the Securities
Exchange Act of 1934, and the rules, regulations and policies adopted by the
Securities and Exchange Commission thereunder in a timely manner in accordance
with the requirements of the Securities Exchange Act of 1934. If at any time we
are not required to file these reports, we will, upon the request of any holder
of the five-year terminable warrants, make available such information as would
be necessary to permit sales of securities of pursuant to Rule 144A under the
Securities Act of 1933.
We have agreed to comply with all applicable laws, including the Securities
Act of 1933 and any applicable state securities laws, in connection with the
offer and sale of common stock, and other securities and property deliverable,
upon exercise of the five-year terminable warrants.
33
REGISTRATION RIGHTS
On August 28, 2001, we entered into a registration rights agreement with the
purchasers of the notes, warrants and units. The following summary is not
complete. It summarizes some, but not all, of the provisions of the
registration rights agreement. We have filed a copy of the registration rights
agreement as an exhibit to the registration statement of which this prospectus
is a part, and you should read the actual terms of the agreement for the
definitive terms and conditions. We will provide to you, upon request, copies
of the registration rights agreement.
Pursuant to the registration rights agreement, we have filed a shelf
registration statement, of which this prospectus is a part. We will generally
be required to maintain the effectiveness of the shelf registration statement
until the earlier of:
. the sale of all the registrable securities under the shelf registration
statement, or
. August 28, 2003, provided, however, that in the event that Rule 144(k)
under the Securities Act is amended to extend the two-year period after
which restricted securities issued to and continuously held by our
nonaffiliates are no longer subject to the volume and manner limitations
contained in Rule 144 under the Securities Act, the period during which
the registration statement is required to remain effective under the
registration rights agreement will 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 registration statement.
We cannot assure you that we will be able to keep the registration statement
continuously effective for the required period.
When we use the term "registrable securities," we mean:
. with respect to any note, until the earlier of the following events:
. the date on which the note has been effectively registered under the
Securities Act of 1933 and sold or transferred pursuant to the shelf
registration statement;
. the date on which the note has been distributed to the public
pursuant to Rule 144 under the Securities Act of 1933 or is saleable
pursuant to Rule 144(k) under the Securities Act of 1933; or
. the date on which the note ceases to be outstanding.
. with respect to shares of common stock issued or issuable upon
conversion of the notes, until the earlier of the following events:
. the date on which such shares of common stock have been effectively
registered under the Securities Act of 1933 and sold or transferred
pursuant to the shelf registration statement;
. with respect to shares of common stock issued upon conversion of
notes, if such note was effectively registered under the Securities
Act of 1933 and sold or transferred pursuant to the shelf
registration statement, the date on which such note was so sold or
transferred;
. the date on which such shares of common stock have been distributed
to the public pursuant to Rule 144 under the Securities Act of 1933
or are saleable pursuant to Rule 144(k) under the Securities Act of
1933;
. with respect to shares of common stock issued upon conversion of
notes, if such note was distributed to the public pursuant to Rule
144 under the Securities Act of 1933 or was saleable pursuant to
Rule 144(k) under the Securities Act of 1933 and if such conversion
was in compliance with Section 3(a)(9) of the Securities Act of
1933, the date on which such note was converted; or
. the date on which such shares of common stock cease to be
outstanding;
34
. with respect to any warrant, until the earlier of the following events:
. the date on which the warrant has been effectively registered under
the Securities Act of 1933 and sold or transferred pursuant to the
shelf registration statement;
. the date on which the warrant has been distributed to the public
pursuant to Rule 144 under the Securities Act of 1933 or is saleable
pursuant to Rule 144(k) under the Securities Act of 1933; or
. the date on which the warrant ceases to be outstanding.
. with respect to shares of common stock issued or issuable upon exercise
of the warrants, until the earlier of the following events:
. the date on which such shares of common stock have been effectively
registered under the Securities Act of 1933 and sold or transferred
pursuant to the shelf registration statement;
. with respect to shares of common stock issued upon the exercise of
warrants, if such warrant was effectively registered under the
Securities Act of 1933 and sold or transferred pursuant to the shelf
registration statement, the date on which such warrant was so sold
or transferred;
. the date on which such shares of common stock have been distributed
to the public pursuant to Rule 144 under the Securities Act of 1933
or are saleable pursuant to Rule 144(k) under the Act;
. the date on which such shares of common stock cease to be
outstanding; or
. with respect only to shares of common stock issued upon the
"cashless exercise" of five-year warrants or five-year terminable
warrants, as described above in "Description of Five-Year Warrants--
Exercise by Holders" and "Description of Units--Description of Five-
Year Terminable Warrants--Exercise by Holders," if such five-year
warrant or five-year terminable warrant was distributed to the
public pursuant to Rule 144 under the Securities Act of 1933 or was
saleable pursuant to Rule 144(k) under the Act and such cashless
exercise was in compliance with Section 3(a)(9) of the Securities
Act of 1933, the date on which such five-year warrant or five-year
terminable warrant was exercised.
In the event that the conversion price of the notes is adjusted as described
in the second paragraph under "Description of Notes--Conversion Price
Adjustments--Adjustment upon Issuance of Additional Stock," we have agreed to:
. file with the Securities and Exchange Commission, within 30 days after
the date on which the conversion price adjustment occurs, a supplemental
shelf registration statement covering the resale of any additional
shares of common stock issuable as a result of the conversion price
adjustment; and
. cause the supplemental shelf registration statement to be declared
effective as promptly as practicable.
We are permitted to suspend the use of this prospectus upon:
. the existence of a fact that would make untrue any material statement
contained in this prospectus, the registration statement, any
supplemental registration statement, any amendments or supplements to
those documents or any documents incorporated by reference into those
documents;
. the existence of any development, as determined in our good faith
discretion, that makes it appropriate to suspend the availability of the
registration statement and this prospectus or which renders us unable to
comply with Securities and Exchange Commission requirements;
. the issuance of a stop order by the Securities and Exchange Commission
with respect to the registration statement;
. the suspension of the qualification of the securities in any
jurisdiction; and
. the occurrence of the other circumstances specified in the registration
rights agreement
35
for 30 days in any period of 365 consecutive days in reliance upon the
situation described in the second bullet point above or for 60 days in any
period of 365 consecutive days for any reason.
We agreed to pay predetermined liquidated damages if any of the following
registration defaults occurs:
. we do not file the supplemental shelf registration statement described
above within 30 days after the date upon which the conversion price
adjustment triggering the filing of the supplemental registration
statement is made;
. the Securities and Exchange Commission does not declare the supplemental
shelf registration statement effective within 90 days after the date
upon which the conversion price adjustment triggering the filing of the
supplemental shelf registration statement is made, but in the event that
the Securities and Exchange Commission informs us that it will review
the supplemental shelf registration statement or any document included
or incorporated therein by reference, or informs us that it will not
declare the supplemental shelf registration statement effective during
the pendency of its review of any confidential treatment request of ours
currently before it, this 90-day period will be extended for an
additional 30 days; or
. this registration statement or the supplemental registration statement,
after it has been declared effective, during the period during which we
are required under the registration rights agreement to keep such
registration statement effective, ceases to be effective or available or
if we suspend the use of this prospectus in excess of the permitted time
periods described above.
Liquidated damages will accrue:
. in respect of the notes or the common stock issued upon conversion of
the notes, at the rate of $10.00 per month per $1,000 principal amount
of notes held that continue to be registrable securities, or, with
respect to the shares of common stock that continue to be registrable
securities and were issued upon conversion of the notes, per $1,000
principal amount of notes formerly held that were converted into common
stock, provided that, if we do not cure the registration default
triggering the payment of liquidated damages within 30 days, the rate
will increase by $2.50 per month per $1,000 principal amount of notes
held or formerly held up to a maximum rate of $20.00 per month; and
. in respect of the warrants or the common stock issued upon exercise of
the warrants, at the rate of $0.05 per week per $1,000 of aggregate
exercise price payable upon exercise of the warrants that continue to be
registrable securities or, with respect to the shares of common stock
that continue to be registrable securities and were issued upon exercise
of the warrants, per $1,000 of aggregate exercise price paid upon
exercise of the warrants, provided that, if we do not cure the
registration default triggering the payment of liquidated damages within
30 days, the rate will increase by $.25 per week per $1,000 of aggregate
exercise payable or paid.
With respect to the notes, liquidated damages will accrue on a pro rata
basis for any portion of a month during which a registration default exists
and generally will be payable in arrears on the 15th day of each month. With
respect to the warrants, liquidated damages will accrue on a pro rata basis
for any portion of a week during which a registration default exists and
generally will be payable at the same time as interest payments on the notes.
In the event that we default for 30 days in the payment of any installment of
liquidated damages under the registration rights agreement when they have
become due and payable and:
. within 60 days after such 30-day cure period described in the preceding
paragraph there has not been a declaration of default under the
indenture such that the principal of and premium, if any, on the notes
and the interest accrued thereon are due and payable immediately or
. any such declaration has been waived, as provided in the indenture,
then we will be liable to any holder who would otherwise have been entitled to
such liquidated damages for any actual damages incurred by such holder.
36
Holders of the securities are required to deliver the information required
by the notice and questionnaire attached as an exhibit to the registration
rights agreement to us to be used in connection with this prospectus within the
time periods set forth in the registration rights agreement in order to have
their securities included in this prospectus or in a supplement to this
prospectus. A holder who sells securities pursuant to the registration
statement generally will be required to be named as a selling securityholder in
the related prospectus, deliver a prospectus to purchasers and be bound by the
provisions of the registration rights agreement (including indemnification
provisions).
37
DESCRIPTION OF CAPITAL STOCK
The following description of the material terms of our capital stock is
qualified by reference to our certificate of incorporation, the certificate of
designations of Series B junior participating preferred stock, the Rights
Agreement and the warrants described below.
General
Our authorized capital stock consists of 150,000,000 shares of common stock,
par value $0.001 per share, and 10,000,000 shares of preferred stock, par value
$0.001 per share, of which 5,000,000 shares have been designated Series A
convertible preferred stock and 1,500,000 shares have been designated Series B
junior participating preferred stock. As of October 30, 2001, there were
44,073,107 shares of common stock outstanding, 2,711,861 shares of Series A
convertible preferred stock outstanding and no shares of Series B junior
participating preferred stock outstanding.
Description of Common Stock
The holders of common stock are entitled to one vote per share on all
matters to be voted on by stockholders, including the election of directors.
Stockholders are not entitled to cumulative voting rights, and, accordingly,
the holders of a majority of the shares voting for the election of directors
can elect our entire board of directors if they choose to do so and, in that
event, the holders of the remaining shares will not be able to elect any person
to our board of directors.
The holders of common stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by our board of directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock which may be outstanding.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our common stock. Upon our liquidation, dissolution
or winding up, subject to prior liquidation rights of the holders of preferred
stock, the holders of common stock are entitled to receive on a pro rata basis
our remaining assets available for distribution. There are no conversion rights
or redemption or sinking fund provisions with respect to our common stock. All
outstanding shares of common stock are, and all shares of common stock issuable
upon conversion or exercise of the securities being offered by this prospectus
will be, fully paid and not liable to further calls or assessment by us.
Pursuant to our Rights Agreement, each share of TiVo common stock trades
with a right to purchase Series B junior participating preferred stock under
certain circumstances. For a description of these rights, see""--Certain Anti-
Takeover, Limited Liability and Indemnification Provisions--Stockholder Rights
Plan" below.
Description of Preferred Stock
Under our certificate of incorporation, our board of directors is authorized
without further stockholder action to provide for the issuance of our preferred
stock, in one or more series, with such voting powers, full or limited, and
with such designations, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated in the resolution or resolutions providing for the issue of
a series of such stock adopted, at any time or from time to time, by our board
of directors. As used herein, the term "board of directors" includes any duly
authorized committee thereof. The issuance of the preferred stock could
adversely affect the voting power of holders of our common stock and the
likelihood that such holders will receive dividend payments and payments upon
liquidation and could have the effect of delaying, deferring or preventing a
change in control.
38
Series A Convertible Preferred Stock
Pursuant to an Investment Agreement between us and AOL, in September 2000,
we issued 2,711,861 shares of Series A convertible preferred stock at $30.00
per share to AOL. Each share of the Series A convertible preferred stock is
initially convertible into one share of common stock, subject to adjustment for
stock splits, dividends, combinations, reclassifications or similar
transactions, as provided in our Amended and Restated Certificate of
Incorporation. The Series A convertible preferred stock is convertible upon
AOL's option or is mandatorily convertible if the price of our common stock
exceeds $30.00 per share for 18 trading days in any 20 consecutive trading day
period. Upon our liquidation, dissolution or winding up, the holders of the
Series A convertible preferred stock shall be entitled to receive, in
preference to any holders of common stock or any other series of preferred
stock, an amount per share in cash equal to the greater of:
. the original purchase price of the Series A convertible preferred stock
(as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares) plus the
amount of all accrued and unpaid dividends; and
. an amount equal to the amount the holders of the Series A convertible
preferred stock would have received upon liquidation, dissolution or
winding up had such holders converted their shares of Series A
convertible preferred stock.
Except as otherwise requested by law, the Series A convertible preferred
stock is entitled to vote together with the shares of the common stock and not
as a separate class, at any annual or special meeting of stockholders upon the
following basis: each holder of shares of Series A convertible preferred stock
shall be entitled to such number of votes as shall be equal to the whole number
of shares of common stock into which such holder's shares of Series A
convertible preferred stock are convertible immediately after the close of
business on the record date fixed for such meeting. The vote of the holders of
at least a majority of the outstanding shares of Series A convertible preferred
stock, voting separately as a class, is necessary to effect amendments or
alterations of our charter, if such amendments or alterations adversely affect
the Series A convertible preferred stock in a discriminatory manner; any
adverse alteration or change in the voting powers, preferences, dividend
rights, or other special rights or privileges, qualifications, limitations or
restrictions of the Series A convertible preferred stock; any increase or
decrease in the number of authorized or issued shares of our Series A
convertible preferred stock; any authorization or creation of any new class or
series of stock or any other securities convertible into our equity securities
ranking on a parity with or senior to the Series A convertible preferred stock;
any redemption, repurchase, payment of dividends or other distributions with
respect to common stock or other series of preferred stock, unless the Series A
convertible preferred stock is permitted to participate in the redemption; and
certain asset transfers, acquisitions, mergers or consolidations or
combinations with or into any other corporation.
Under the terms of the First Amendment to the Investment Agreement, if the
set-top box launch of the integrated product to be jointly developed by us and
AOL does not occur by December 31, 2001, and AOL has not committed a material
breach of the Commercial Agreement or the Company has breached its obligations
with respect to the financial covenants, then AOL would have a put option
pursuant to which AOL could require us to repurchase from AOL the number of
shares of Series A redeemable convertible preferred stock which have an initial
liquidation value of $91.5 million. If all the shares of Series A redeemable
convertible preferred stock have an aggregate initial liquidation value of less
than $91.5 million, then AOL could require us to repurchase the number of
shares of common stock having a value equal to the difference between that
aggregate initial liquidation value and $91.5 million. In the event that the
set-top box launch occurred after the planned launch date, but prior to the
exercise of the put option, the put option would immediately expire.
The Second Amendment to the Investment Agreement modified the terms of AOL's
put option with respect to the Series A convertible preferred stock held by
AOL. Under the Second Amendment, the Company could be required to repurchase
that number of shares of Series A convertible preferred stock having a
liquidation value of $48.0 million, which is equal to the amount of the funds
remaining in the restricted cash account, following AOL's release of $43.5
million of restricted cash in January 2001, excluding any interest earned on
such funds.
39
Series B Junior Participating Preferred Stock
In connection with the adoption of the Rights Plan, our board has designated
1,500,000 shares of preferred stock as Series B junior participating preferred
stock. Each share of Series B preferred stock purchasable upon exercise of the
rights will be entitled, when, as and if declared, to a minimum preferential
quarterly dividend payment of $1.00 per share but will be entitled to an
aggregate dividend of 100 times the dividend, if any, declared per share of
common stock. In the event of our liquidation, dissolution or winding up, the
holders of the Series B preferred stock will be entitled to a minimum
preferential liquidation payment of $100 per share, plus any accrued but unpaid
dividends, but will be entitled to an aggregate payment of 100 times the
payment made per share of common stock. Each share of Series B preferred stock
will have 100 votes and will vote together with the common stock. Finally, in
the event of any merger, consolidation or other transaction in which common
stock is exchanged, each share of Series B preferred stock will be entitled to
receive 100 times the amount received per share of common stock. Shares of
Series B preferred stock will not be redeemable. These rights are protected by
customary antidilution provisions. Because of the nature of the dividend,
liquidation and voting rights of the Series B preferred stock, the value of one
one-hundredth of a share of Series B preferred stock purchasable upon exercise
of each right should approximate the value of one share of common stock.
Warrants
Initial Common Stock Warrants A and B
In conjunction with AOL's investment in September 2000, we issued two
initial warrants to AOL to purchase common stock. The terms of the warrants
were amended in January 2001 and currently provide as follows.
. Initial Warrant A--To purchase 2,308,475 shares of common stock at $7.29
per share.
. Initial Warrant B--To purchase 295,428 shares of common stock at $7.29
per share.
Initial Warrant A expires on December 31, 2001, and Initial Warrant B
expires December 31, 2003. The number and kind of securities purchasable upon
the exercise of these warrants, and the corresponding exercise price, are
subject to adjustment for stock splits, dividends, combinations,
reclassifications or similar transactions.
Performance Warrants
In conjunction with AOL's investment in September 2000, we also issued two
performance warrants to AOL to purchase common stock. If AOL meets certain
performance criteria, described in the Product Integration and Marketing
Agreement between AOL and TiVo, dated as of June 9, 2000, the warrants are
exercisable as follows:
. Performance Warrant A--To purchase up to 2,603,903 shares of common
stock at the exercise price described below. Performance Warrant A may
be exercised within six months following the execution of a binding
contractual commitment between AOL and TiVo to market a jointly
developed integrated service to 1,500,000 activated users on Time Warner
cable systems.
. Performance Warrant B--To purchase up to 2,603,903 shares of common
stock at the exercise price described below. Performance Warrant B may
be exercised within the six month period following the date on which AOL
notifies TiVo that 1,500,000 activated users of the integrated service
exist at one time.
Additionally, Performance Warrants A and B would also become exercisable
immediately upon the occurrence of either a material breach of the Product
Integration and Marketing Agreement, by us or if we enter into a definitive
agreement for a change of control. The performance warrants would expire on the
earlier of September 11, 2003 or in the event that AOL commits a material
breach of the Commercial Agreement.
40
DIRECTV Warrants
In connection with a Warrant and Registration Rights Agreement between us
and DIRECTV, dated as of October 6, 2000, DIRECTV earns the right to purchase
shares of our common stock in connection with each sale of the DIRECTV receiver
with a TiVo recorder.
Registration Rights
Under the terms of the Stockholders and Registration Rights Agreement by and
between us and AOL, dated as of June 9, 2000, AOL or any of its transferees may
request a registration of the common stock issued in connection with the
Investment Agreement, or the common stock issuable upon conversion of the
Series A preferred stock or the exercise of the warrants, provided, however,
that we will not be required to effect more than four such requested
registrations. In addition, if we register any of our common stock either for
our own account or for the account of other security holders, AOL may include
its shares in such registrations. In the case of an underwritten offering,
AOL's right to include shares in the registration is subject to the ability of
the underwriters to limit the number of shares included in the offering,
provided, however, that in such event, no shares of other selling holders may
be included in the registration statement unless all of AOL's shares are
included. AOL has waived its registration rights with respect to this
registration statement.
Under the terms of the Warrant and Registration Rights Agreement with
DIRECTV, DIRECTV has been granted certain registration rights with respect to
the shares of common stock underlying any performance warrants that may have
accrued to DIRECTV. DIRECTV may request up to three registrations of such
shares on a Form S-3 for shares with an anticipated offering price of at least
$1,000,000. In addition, if we register any of our common stock either for our
own account or for the account of other security holders, DIRECTV may, subject
to the rights of AOL under the Stockholder and Registration Rights Agreement,
to include their shares in the registration. In the case of an underwritten
offering, DIRECTV's right to include shares in the registration is subject to
the ability of the underwriters to limit the number of shares included in the
offering, provided, however, that in such event, DIRECTV's right to include its
shares are expressly subordinate to the rights of AOL under the Stockholder and
Registration Rights Agreement. DIRECTV has waived its registration rights with
respect to this registration statement.
Certain Anti-Takeover, Limited Liability and Indemnification Provisions
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law, an anti-takeover law. In general, the statute prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless
the business combination is approved in a prescribed manner. For purposes of
Section 203, a "business combination" includes a merger, asset sale or other
transaction resulting in a financial benefit to the interested stockholder, and
an "interested stockholder" is a person who, together with affiliates and
employees, owns or, within three years prior, did own 15% or more of the
corporation's voting stock.
Stockholder Action; Special Meetings of Stockholders
Our certificate of incorporation and bylaws require that any action required
or permitted to be taken by our stockholders must be effected at a duly called
annual or special meeting of the stockholders and may not be effected by a
consent in writing. In addition, special meetings of our stockholders may be
called only by our board of directors, the chairman of the board of directors
or our chief executive officer.
Our Board of Directors
Our certificate of incorporation and bylaws also provide that directors may
be removed only for cause by a vote of a majority of the stockholders and that
vacancies on the board of directors created either by resignation,
41
death, disqualification, removal or by an increase in the size of the board of
directors may be filled by a majority of the directors in office, although less
than a quorum. Our certificate of incorporation also provides for a classified
board of directors and specifies that the authorized number of directors may be
changed only by resolution of the board of directors. These provisions may have
the effect of deterring hostile takeovers or delaying changes in control or
management.
Stockholder Rights Plan
Our board of directors has adopted a stockholder rights plan. The
stockholder rights plan provides for a dividend distribution of one right on
each share of common stock. Each right entitles the holder to buy 1/100th of a
share of our Series B junior participating preferred stock at an exercise price
of $60. Subject to limited exceptions, the rights will become exercisable
following the tenth day after a person or group announces acquisition of 15% or
more of our common stock, and thereby becomes an "acquiring person," or
announces commencement of a tender offer or exchange offer, the consummation of
which would result in the ownership by the person or group of 15% or more of
our common stock. We will be entitled to redeem the rights at $0.01 per right
at any time prior to the time that a person or group becomes an acquiring
person.
The operation of the stockholder rights plan could make it more difficult
for us to be acquired by another company, even if our acquisition is in the
best interests of our stockholders. The rights will cause substantial dilution
to a person or group that acquires 15% or more of TiVo stock on terms not
approved by the board of directors.
The rights will expire in January 2011 unless earlier redeemed, exchanged or
terminated. Wells Fargo Shareowner Services is the rights agent.
Transfer Agent and Registrar
Wells Fargo Shareowner Services is the transfer agent and registrar for our
common stock.
42
SELLING SECURITYHOLDERS
We originally issued the notes, the warrants and the units in a transaction
exempt from the registration requirements of the Securities Act to persons we
reasonably believed to be accredited investors as defined in Regulation D under
the Securities Act. Selling securityholders, including their transferees,
pledgees or donees or their successors, may from time to time offer and sell
pursuant to this prospectus any or all of the notes, warrants, units and shares
of common stock into which the notes are convertible or for which the warrants
are exercisable.
The following tables set forth information with respect to the selling
securityholders and the principal amounts of notes, warrants, units and common
stock beneficially owned by each selling securityholder that may be offered
pursuant to this prospectus. The information is based on information, as of
August 23, 2001, which was provided to us by or on behalf of the selling
securityholders. The selling securityholders may offer all, some or none of the
notes, warrants, units or the common stock underlying the notes and warrants.
In addition, the selling securityholders identified below may have sold,
transferred or otherwise disposed of all or a portion of their notes, warrants
or units since the date on which they provided the information regarding their
notes, warrants and units. Because the selling securityholders may offer all or
some portion of the notes, the warrants, the units or the common stock, we
cannot estimate the amount of the notes, warrants, units, common stock or the
percentage of our outstanding securities that will be held by the selling
securityholders upon termination of any of these sales.
43
NOTES, WARRANTS AND UNITS
The percentage of notes outstanding beneficially owned by each selling
securityholder is based on $51,750,000 aggregate principal amount of notes
outstanding.
Number of Units
Consisting of
One One-Year Number of Percentage of Percentage of
Principal Number of Warrant and One Number of Five-Year Outstanding Outstanding
Amount of Five-Year Five-Year One-Year Terminable Principal Amount Warrants and
Notes Warrants Terminable Warrants Warrants of Notes Owned Units Owned
Offered Offered Warrant Offered Offered Offered Prior to the Prior to the
Name Hereby Hereby(1) Hereby(2) Hereby(3) Hereby(4) Offering Offering
---- ----------- --------- --------------- --------- ---------- ---------------- -------------
National Broadcasting
Company, Inc.(5)....... $10,000,000 490,196 742,721 742,721 742,721 19.3% 18.3%
British Sky Broadcasting
Group plc(6)........... $ 7,000,000 343,137 519,905 519,905 519,905 13.5% 12.8%
Discovery
Communications,
Inc.(7)................ $ 5,000,000 245,098 371,361 371,361 371,361 9.7% 9.1%
RGC International
Investors, LDC......... $ 5,000,000 245,098 371,361 371,361 371,361 9.7% 9.1%
Capital Ventures
International.......... $ 4,500,000 220,588 334,225 334,225 334,225 8.7% 8.2%
JMG Triton Offshore
Fund, Ltd. ............ $ 3,500,000 171,569 259,952 259,952 259,952 6.8% 6.4%
JMG Capital Partners,
L.P. .................. $ 3,500,000 171,569 259,952 259,952 259,952 6.8% 6.4%
Gryphon Master Fund,
L.P. .................. $ 2,000,000 98,039 148,544 148,544 148,544 3.9% 3.7%
Langley Partners,
L.P. .................. $ 2,000,000 98,039 148,544 148,544 148,544 3.9% 3.7%
Woodmont Investments
Ltd. .................. $ 1,500,000 73,529 111,408 111,408 111,408 2.9% 2.7%
Newberg Family Trust.... $ 1,500,000 73,529 111,408 111,408 111,408 2.9% 2.7%
R/2/ CAPS, Ltd. ........ $ 1,200,000 58,824 89,127 89,127 89,127 2.3% 2.2%
Castle Creek Technology
Partners LLC........... $ 1,000,000 49,020 74,272 74,272 74,272 1.9% 1.8%
Cohanzick Partners
L.P. .................. $ 1,000,000 49,020 74,272 74,272 74,272 1.9% 1.8%
Shepherd Trading Ltd. .. $ 1,000,000 49,020 74,272 74,272 74,272 1.9% 1.8%
Reliant Trading ........ $ 1,000,000 49,020 74,272 74,272 74,272 1.9% 1.8%
Sagamore Hill Hub Fund,
Ltd. .................. $ 500,000 24,510 37,136 37,136 37,136 1.0% *
Macke Asset Management.. $ 500,000 24,510 37,136 37,136 37,136 1.0% *
Alan Mendelson(8)....... $ 50,000 2,451 3,714 3,714 3,714 * *
Robertson Stephens,
Inc.(9)................ -- 145,834 220,960 220,960 220,960 -- 5.4%
Total................. $51,750,000 2,682,600 4,064,542 4,064,542 4,064,542 100.0% 100.0%
--------
* Less than one percent.
(1) Each five-year warrant represents the right to purchase one share of our
common stock.
(2) Each unit consists of one one-year warrant and one five-year terminable
warrant.
(3) Each one-year warrant represents the right to purchase one share of our
common stock. The one-year warrant and the five-year terminable warrant
comprise a unit. The one-year warrant is not separately transferable.
(4) Each five-year terminable warrant represents the right to purchase .33 of
a share of our common stock. The one-year warrant and the five-year
terminable warrant comprise a unit. Upon the exercise of the one-year
warrant, the five-year terminable warrant may thereafter be separately
transferred.
(5) David Zaslav, president of NBC Cable, Inc., a division of National
Broadcasting Company, Inc., is a member of our board of directors.
(6) We have a commercial relationship with British Sky Broadcasting Group plc,
pursuant to an agreement dated February 25, 2000.
(7) John S. Hendricks, chairman and chief executive officer of Discovery
Communications, Inc., is a member of our board of directors. We also have
a commercial relationship with Discovery Communications, Inc.
(8) Alan Mendelson is a partner at Latham & Watkins, counsel to TiVo. Mr.
Mendelson is also the secretary of TiVo.
(9) We issued the warrants to Robertson Stephens, Inc. as partial compensation
for its services as placement agent in connection with the private
placement of the notes, warrants and units.
44
COMMON STOCK
Number of
Number of Number of Shares Issuable
Number of Number of Shares Issuable Shares Issuable upon Exercise
Shares of % of Shares Issuable upon Exercise upon Exercise of Five-Year
Common Stock Outstanding upon Conversion of Five-Year of One-Year Terminable
Owned Prior Common Stock of Notes and Warrants and Warrants and Warrants and
to Owned Prior to Available for Available for Available for Available for
Name Offering(1) Offering(1)(2) Resale(3) Resale(4) Resale(5) Resale(6)
---- ------------ -------------- --------------- --------------- --------------- ---------------
National Broadcasting
Company, Inc. (7)......... 1,013,513 2.3% 1,485,884(8) 490,196 742,721 245,097
2,375,296(9)
British Sky Broadcasting
Group plc(10)............. -- -- 1,040,118(8) 343,137 519,905 171,568
1,662,707(9)
Discovery
Communications, Inc.(11).. 720,461 1.6% 742,942(8) 245,098 371,361 122,549
1,187,648(9)
RGC International
Investors, LDC............ -- -- 742,942(8) 245,098 371,361 122,549
1,187,648(9)
Capital Ventures
International............. -- -- 668,647(8) 220,588 334,225 110,294
1,068,883(9)
JMG Triton Offshore
Fund, Ltd................. -- -- 520,059(8) 171,569 259,952 85,784
831,353(9)
JMG Capital Partners, LP... -- -- 520,059(8) 171,569 259,952 85,784
831,353(9)
Gryphon Master Fund,
L.P. ..................... -- -- 297,176(8) 98,039 148,544 49,019
475,059(9)
Langley Partners, L.P...... -- -- 297,176(8) 98,039 148,544 49,019
475,059(9)
Woodmont Investments Ltd... -- -- 222,882(8) 73,529 111,408 36,764
356,294(9)
Newberg Family Trust....... -- -- 222,882(8) 73,529 111,408 36,764
356,294(9)
R/2/ CAPS, Ltd............. -- -- 178,306(8) 58,824 89,127 29,411
285,035(9)
Castle Creek Technology
Partners LLC.............. -- -- 148,588(8) 49,020 74,272 24,509
237,529(9)
Cohanzick Partners L.P..... -- -- 148,588(8) 49,020 74,272 24,509
237,529(9)
Shepherd Trading Ltd....... -- -- 148,588(8) 49,020 74,272 24,509
237,529(9)
Reliant Trading............ -- -- 148,588(8) 49,020 74,272 24,509
237,529(9)
Sagamore Hill Hub Fund,
Ltd....................... -- -- 74,294(8) 24,510 37,136 12,254
118,764(9)
Macke Asset Management..... -- -- 74,294(8) 24,510 37,136 12,254
118,764(9)
Alan Mendelson(12)......... 4,882 * 7,429(8) 2,451 3,714 1,225
11,876(9)
Robertson Stephens,
Inc.(13).................. -- -- -- 145,834 220,960 72,916
Total..................... 1,738,856 3.9% 7,689,451(8) 2,682,600 4,064,542 1,341,299(14)
12,292,162(9)
--------
* Less than one percent.
(1) Based on information, as of August 23, 2001, provided to us by such
selling securityholder.
45
(2) Calculated based on Rule 13d-3(d)(i) under the Securities Exchange Act of
1934 using 44,073,107 shares of common stock outstanding as of October 30,
2001. In calculating this amount, we treated as outstanding the number of
shares of common stock issuable upon conversion of all of that particular
holder's notes and warrants. However, we did not assume the conversion of
any other holder's notes and warrants.
(3) The conversion price and the floor price are subject to further adjustment
as described under "Description of Notes--Conversion Price Adjustments--
Antidilution Adjustment." Accordingly, the number of shares of common
stock into which the notes are convertible may increase or decrease. This
prospectus covers any such change in the number of shares issuable.
(4) Consists of shares of common stock issuable upon exercise of the five-year
warrants at the current exercise price of $7.85 per share in cash. The
exercise price is subject to antidilution adjustment under the
circumstances described under "Description of Five-Year Warrants--Exercise
by Holders." Accordingly, the number of shares of common stock into which
the five-year warrants are exercisable may increase or decrease. This
prospectus covers any such change in the number of shares issuable.
(5) Consists of shares of common stock issuable upon exercise of the one-year
warrants at the current exercise price of $6.73 per share in cash. The
exercise price is subject to antidilution adjustment under the
circumstances described under "Description of One-Year Warrants--Exercise
by Holders." Accordingly, the number of shares of common stock into which
the one-year warrants are exercisable may increase or decrease. This
prospectus covers any such change in the number of shares issuable.
(6) Consists of shares of common stock issuable upon exercise of the five-year
terminable warrants at the current exercise price of $7.85 per share in
cash. The exercise price is subject to antidilution adjustment under the
circumstances described under "Description of Five-Year Terminable
Warrants--Exercise by Holders." Accordingly, the number of shares of
common stock into which the five-year terminable warrants are exercisable
may increase or decrease. This prospectus covers any such change in the
number of shares issuable.
46
(7) David Zaslav, president of NBC Cable, Inc., a division of National
Broadcasting Company, Inc., is a member of our board of directors.
(8) Consists of shares of common stock issuable upon conversion of the notes
at the current conversion price of $6.73 per share and a cash payment in
lieu of any fractional share interest. Because the conversion price may be
anywhere between the current conversion price of $6.73 per share and the
floor price of $4.21 per share, the actual number of shares issued upon
conversion of the notes may be higher than the number indicated. In
addition to the sum of the shares set forth for each selling
securityholder, this total includes 9 shares that represent the aggregate
fractional shares which were excluded from the number of shares listed for
each selling securityholder due to the fact that we will pay cash in lieu
of fractional shares upon conversion by a particular selling
securityholder.
(9) Consists of shares of common stock issuable upon conversion of the notes
at the current floor price of $4.21, as described under "Description of
Notes--Conversion Price Adjustments--Adjustment in the Event Our Common
Stock Price Is Less Than the Conversion Price," and a cash payment in lieu
of any fractional share interest. Because the conversion price may be
anywhere between the current conversion price of $6.73 per share and the
floor price of $4.21 per share, the actual number of shares issued upon
conversion of the notes of may be lower than the number indicated. In
addition to the sum of the shares set forth for each selling
securityholder, this total includes 13 shares that represent the aggregate
fractional shares which were excluded from the number of shares listed for
each selling securityholder due to the fact that we will pay cash in lieu
of fractional shares upon conversion by a particular selling
securityholder.
(10) We have a commercial relationship with British Sky Broadcasting Group plc,
pursuant to an agreement dated February 25, 2000.
(11) John S. Hendricks, chairman and chief executive officer of Discovery
Communications, Inc., is a member of our board of directors. We also have
a commercial relationship with Discovery Communications, Inc.
(12) Alan Mendelson is a partner at Latham & Watkins, counsel to TiVo. Mr.
Mendelson is also the secretary of TiVo.
(13) We issued the warrants to Robertson Stephens, Inc. as partial compensation
for its services as placement agent in connection with the private
placement of the notes, warrants and units.
(14) In addition to the sum of the shares set forth for each selling
securityholder, this total includes 12 shares that represent the aggregate
fractional shares which were excluded from the number of shares listed for
each selling securityholder due to the fact that we will pay cash in lieu
of fractional shares upon exercise by a particular selling securityholder.
Other than as set forth in the footnotes to the foregoing selling
securityholder tables, none of the selling securityholders nor any of their
affiliates, officers, directors or principal equity holders has held any
position or office or has had any material relationship with TiVo or any of its
predecessors or affiliates within the past three years.
The selling securityholders purchased all of the notes, warrants and units
from us in a private transaction in August 2001, except Robertson Stephens,
Inc., to whom we issued warrants as partial compensation for the services it
rendered as placement agent in connection with the private transaction. All of
the notes, warrants and units were "restricted securities" under the Securities
Act of 1933 prior to this registration. The selling securityholders have
represented to us that they purchased the notes, warrants and units for their
own account for investment only and not with a view toward selling or
distributing them, except pursuant to sales registered under the Securities Act
or exempt from such registration.
Information concerning other selling securityholders will be set forth in
prospectus supplements from time to time, if required. Information concerning
the securityholders may change from time to time and any changed information
will be set forth in supplements to this prospectus if and when necessary.
47
PLAN OF DISTRIBUTION
The selling securityholders and their successors, which term includes their
transferees, pledgees or donees or their successors, may sell the notes, the
warrants, the units and/or the underlying common stock directly to purchasers
or through underwriters, broker-dealers or agents, who may receive compensation
in the form of discounts, concessions or commissions from the selling
securityholders or the purchasers. These discounts, concessions or commissions
as to any particular underwriter, broker-dealer or agent may be in excess of
those customary in the types of transactions involved.
The notes, the warrants, the units and the common stock may be sold in one
or more transactions at:
. fixed prices,
. prevailing market prices at the time of sale,
. prices related to the prevailing market prices,
. varying prices determined at the time of sale, or
. negotiated prices.
These sales may be effected in transactions:
. for the common stock, on any national securities exchange or quotation
service on which our common stock may be listed or quoted at the time of
sale, including the Nasdaq National Market,
. in the over-the-counter market,
. otherwise than on such exchanges or services or in the over-the-counter
market,
. through the writing of options, whether the options are listed on an
options exchange or otherwise, or
. through the settlement of short sales.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as agent on both sides of the trade.
In connection with the sale of the notes, the warrants, the units and the
common stock underlying the notes and warrants or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers or
other financial institutions. These broker-dealers or financial institutions
may in turn engage in short sales of the common stock in the course of hedging
the positions they assume with selling securityholders. The selling
securityholders may also sell the notes, the warrants, the units and the common
stock underlying the notes and warrants short and deliver these securities to
close out such short positions, or loan or pledge the notes, the warrants, the
units or the common stock underlying the notes and warrants to broker-dealers
that in turn may sell these securities.
The aggregate proceeds to the selling securityholders from the sale of the
notes, the warrants, the units or the common stock underlying the notes and
warrants offered by them hereby will be the purchase price thereof less
discounts and commissions, if any. Each of the selling securityholders reserves
the right to accept and, together with their agents from time to time, to
reject, in whole or in part, any proposed purchase of common stock to be made
directly or through agents. We will not receive any of the proceeds from this
offering.
Our outstanding common stock is listed for trading on the Nasdaq National
Market. We do not intend to list the notes or the units for trading on any
national securities exchange or on the Nasdaq National Market and we cannot
assure you that any trading market for the notes or the units will develop. We
will use our reasonable best efforts to apply for listing of the warrants on
the Nasdaq Stock Market if
. we have 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
48
covenant that such holders shall reimburse us, severally and not jointly,
for all fees and expenses, including reasonable attorneys' fees, that we
reasonably incur in connection therewith;
. 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 SmallCap Market security that may be listed on the
Nasdaq National Market or the Nasdaq SmallCap Market, respectively; and
. we determine, at the time of the receipt of such request and at the time
of such listing, that we can so list the warrants in compliance with the
rules and regulations of the Securities and Exchange Commission.
In order to comply with the securities laws of some states, if applicable,
the notes, the warrants, the units and the common stock underlying the notes
and warrants may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the notes, the
warrants and the units may not be sold unless they have been registered or
qualified for sale or an exemption from registration or qualification
requirements is available and is complied with.
The selling securityholders and any broker-dealers or agents that
participate in the sale of the notes, the warrants, the units and the common
stock underlying the notes and warrants may be deemed to be "underwriters"
within the meaning of Section 2(l1) of the Securities Act. Profits on the sale
of the notes, the warrants, the units and the common stock underlying the notes
and warrants by selling securityholders and any discounts, commissions or
concessions received by any broker-dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. Selling
securityholders who are deemed to be "underwriters" within the meaning of
Section 2(l1) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act. To the extent the selling securityholders
may be deemed to be "underwriters," they may be subject to statutory
liabilities, including, but not limited to, Sections 11, 12 and 17 of the
Securities Act.
The selling securityholders and any other person participating in a
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder. Regulation M of the Exchange Act may
limit the timing of purchases and sales of any of the securities by the selling
securityholders and any other person. In addition, Regulation M may restrict
the ability of any person engaged in the distribution of the securities to
engage in market-making activities with respect to the particular securities
being distributed for a period of up to five business days before the
distribution. The selling securityholders have acknowledged that they
understand their obligations to comply with the provisions of the Exchange Act
and the rules thereunder relating to stock manipulation, particularly
Regulation M, and have agreed that they will not engage in any transaction in
violation of such provisions.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholder and any underwriter, broker-
dealer or agent regarding the sale of the common stock by the selling
securityholders.
A selling securityholder may decide not to sell any notes, warrants, units
or common stock underlying the notes and warrants described in this prospectus.
We cannot assure you that any selling securityholder will use this prospectus
to sell any or all of the notes, warrants, units or common stock underlying the
notes and warrants.
With respect to a particular offering of the notes, the warrants, the units
or the common stock underlying the notes and warrants by a transferee of the
securities, such that such transferee is not listed under "Selling
Securityholders," to the extent required, an accompanying prospectus supplement
or, if appropriate, a post-effective amendment to the registration statement of
which this prospectus is a part will be prepared and will set forth the
following information:
. the notes, warrants, units or common stock to be offered and sold,
. the names of the selling securityholders,
49
. the respective purchase prices and public offering prices and other
material terms of the offering,
. the names of any participating agents, broker-dealers or underwriters,
and
. any applicable commissions, discounts, concessions and other items
constituting, compensation from the selling securityholders.
We entered into the registration rights agreement for the benefit of holders
of the notes, the warrants and the units to register their notes, warrants,
units and the common stock underlying the notes and warrants under applicable
federal and state securities laws under certain circumstances and at certain
times. The registration rights agreement provides that the selling
securityholders and TiVo will indemnify each other and their respective
directors, officers and controlling persons against specific liabilities in
connection with statements contained in the registration statement of which
this prospectus is a part, or in a supplemental registration statement, or will
be entitled to contribution in connection with those liabilities.
50
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain U.S. federal tax
consequences relevant to the purchase, ownership, and disposition of the notes
and warrants, and common stock acquired upon conversion of notes or exercise of
warrants by persons who hold the notes, warrants and common stock as capital
assets (generally, property held for investment within the meaning of Section
1221 of the Internal Revenue Code). This discussion is based upon the Internal
Revenue Code, Treasury Regulations, Internal Revenue Service rulings and
pronouncements, and judicial decisions now in effect, all of which are subject
to change at any time by legislative, administrative, or judicial action,
possibly with retroactive effect. This discussion does not discuss every aspect
of U.S. federal taxation that may be relevant to a particular taxpayer in light
of their personal circumstances or to persons who are otherwise subject to
special tax treatment (including, without limitation, banks, broker-dealers,
insurance companies, pension and other employee benefit plans, tax exempt
organizations and entities, investors in pass-through entities, persons who
acquire notes and warrants in connection with the performance of services,
certain U.S. expatriates, persons holding notes, warrants, or common stock as a
part of a hedging or conversion transaction or a straddle, certain hybrid
entities and owners of interest therein, holders whose functional currency is
not the U.S. dollar and, except to the limited extent described below, persons
who are not U.S. holders (as defined below)), and it does not discuss the
effect of any applicable U.S. state and local or non-U.S. tax laws or U.S. tax
laws other than U.S. income tax law. We have not sought and will not seek any
rulings from the Internal Revenue Service concerning the tax consequences of
the purchase, ownership or disposition of the notes, warrants, or common stock
and, accordingly, we cannot assure you that the Internal Revenue Service will
not successfully challenge the tax consequences described below. EACH
PROSPECTIVE PURCHASER IS URGED TO CONSULT THEIR OWN TAX ADVISOR WITH RESPECT TO
THE U.S. FEDERAL INCOME TAX CONSEQUENCES OF HOLDING AND DISPOSING OF NOTES,
WARRANTS, AND COMMON STOCK, AS WELL AS ANY TAX CONSEQUENCES APPLICABLE UNDER
THE LAWS OF ANY U.S. STATE, LOCAL, OR NON-U.S. TAXING JURISDICTION.
U.S. Holders
This section summarizes certain U.S. federal income tax consequences of the
ownership and disposition of notes, warrants and common stock by "U.S.
holders." The term "U.S. holder" refers to a person that is classified for U.S.
federal tax purposes as a United States person. For this purpose, a United
States person includes
. a citizen or resident of the United States,
. a corporation created or organized in the United States or under the laws
of the United States or of any state or political subdivision thereof,
. an estate the income of which is subject to U.S. federal income taxation
regardless of its source, or
. a trust whose administration is subject to the primary supervision of a
United States court and which has one or more United States persons who
have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in
Treasury Regulations, certain trusts in existence on August 20, 1996, and
treated as United States persons prior to such date that elect to
continue to be treated as United States persons, shall also be considered
U.S. holders.
Issue Price of the Notes and Warrants. For U.S. federal income tax purposes,
the notes and warrants were treated as an investment unit, consisting of a
note, five-year warrants to purchase 49.01961 shares of our common stock, one-
year warrants to purchase 74.27214 shares of our common stock and five-year
terminable warrants to purchase 24.50981 shares of our common stock. The issue
price of the unit was $1,000, which was the first price at which a substantial
portion of the units were sold to persons other than bond houses, brokers or
similar persons or organizations acting in the capacity of underwriter,
placement agent or wholesaler. The issue price of each unit is required to be
allocated between the note and warrants based upon their relative fair
51
market values. Based on an estimate of the relative fair market values of the
notes and warrants, we have treated 81% of the issue price of each unit as
allocable to the note, 11% of the issue price as allocable to the five-year
warrants, 6% of the issue price as allocable to the one-year warrants and 2% of
the issue price as allocable to the five-year terminable warrants comprising
each unit. Our allocation is not binding on the Internal Revenue Service, which
may challenge such allocation. If the Internal Revenue Service successfully
asserts that the issue price of a note is less than the amount allocated by us,
there will be a greater amount of original issue discount accruing under the
notes.
Mandatory Purchase and Optional Redemption. If a repurchase event occurs as
described under the heading "Description of Notes--Repurchase at Option of
Holders upon a Repurchase Event," the holders of the notes will have the right
to require us to purchase their notes at a price equal to 110% of the aggregate
principal amount, plus accrued interest. Under Treasury regulations issued
under provisions of the Code relating to original issue discount, computation
of yield and maturity of the notes is not affected by an additional payment
right if, based on all the facts and circumstances as of the issue date,
payments on the notes are significantly more likely than not to occur in
accordance with the stated payment schedule on the notes (which does not
reflect a repurchase event). We believe, based on all the facts and
circumstances as of the issue date, it is significantly more likely than not
that the notes will be paid according to their stated schedule. Therefore, we
have not taken the potential additional payment into account in determining the
yield and maturity of the notes. The Internal Revenue Service may take a
different position, however, which could result in a greater amount of original
issue discount accruing under the notes.
As described under the heading, "Description of Notes--Provisional
Redemption," above, under certain circumstances, we may redeem the notes, in
whole or in part, at any time before maturity. If we redeem some or all of the
notes prior to August 28, 2002, holders of the notes will be entitled to
receive a payment in excess of stated principal and interest. Under Treasury
regulations issued under provisions of the Internal Revenue Code relating to
original issue discount, if an issuer has an unconditional option to redeem
notes early and such redemption will not minimize the yield of the notes,
computation of yield and maturity of the notes is not affected by additional
pre-payments. It is not free from doubt, however, that the option rule applies.
The Internal Revenue Service may take a different position, which could result
in a greater amount of original issue discount accruing under the notes and
could result in any gain recognized by a U.S. holder upon a taxable disposition
of a note prior to August 28, 2002 being ordinary income.
Stated Interest. Stated interest paid or accrued on the notes, other than
interest on the notes that accrued during the period prior to the closing of
the initial issuance of the notes, will be taxable to a U.S. holder as ordinary
income in accordance with the holder's method of accounting for federal income
tax purposes.
Original Issue Discount. The notes were issued with original issue discount
for U.S. federal income tax purposes. The amount of original issue discount on
a note equals the excess of the "stated redemption price at maturity" of a note
over its "issue price." The "stated redemption price at maturity" of a note
will equal the sum of its principal amount plus all other payments thereunder,
other than payments of "qualified stated interest" (defined generally as stated
interest that is unconditionally payable in cash or other property (other than
our debt instruments) at least annually at a single fixed rate) and will
include:
. the excess of the interest on the notes that accrued during the period
prior to the closing of the initial issuance of the notes over
. the amount of income that was earned on the purchase price held in escrow
prior to the closing of the initial issuance of the notes.
The "issue price" of a note will be that portion of the issue price of the
unit that is allocated to the note under the rules described in "Issue Price of
the Notes and Warrants," above. Stated interest on the notes, other than the
interest on the notes that accrued during the period prior to the closing of
the initial issuance of the notes, will be treated as "qualified stated
interest."
52
Each U.S. holder, whether reporting on the cash or accrual basis of
accounting for tax purposes, will be required to include in taxable income for
any particular taxable year the daily portion of the original issue discount
described in the preceding paragraph that accrues on the note for each day
during the taxable year on which such U.S. holder holds the note. Thus, a U.S.
holder will be required to include original issue discount in income in advance
of the receipt of the cash to which such original issue discount is
attributable. The daily portion is determined by allocating to each day of an
accrual period, generally, the period between interest payments or compounding
dates, a pro rata portion of the original issue discount allocable to such
accrual period. The amount of original issue discount that will accrue during
an accrual period is the product of the "adjusted issue price" of the note at
the beginning of the accrual period multiplied by the yield to maturity of the
note less the amount of any qualified stated interest allocable to such accrual
period. The "adjusted issue price" of a note at the beginning of an accrual
period will equal its issue price, increased by the aggregate amount of
original issue discount that has accrued on the note in all prior accrual
periods, and decreased by any payments made during all prior accrual periods of
amounts included in the stated redemption price at maturity of the note.
Although not free from doubt, we intend to report as taxable income for the
first accrual period, original issue discount attributable to:
. the excess of the interest on the notes that accrued during the period
prior to the closing of the initial issuance of the notes over
. the amount of income that was earned on the purchase price held in escrow
prior to the closing of the initial issuance of the notes.
Liquidated Damages. We may be required to pay additional interest to holders
of the notes in the circumstances described under "Registration Rights."
Although the matter is not entirely free from doubt, we intend to take the
position that the likelihood of paying liquidated damages is remote and that
liquidated damages, if paid, would be taxable to a U.S. holder as interest
income at the time it accrues or is received in accordance with such holder's
method of accounting for U.S. federal income taxation tax purposes. The
Internal Revenue Service may take a different position, however, which could
affect the timing to the U.S. holder's income with respect to liquidated
damages and the availability of our deduction with respect to such additional
amounts.
Market Discount. If a U.S. holder acquires a note at a cost that is less
than its adjusted issue price, as defined above, the amount of such difference
is treated as "market discount" for federal income tax purposes, unless such
difference is less than .0025 multiplied by the stated redemption price at
maturity multiplied by the number of complete years to maturity (from the date
of acquisition).
Under the market discount rules of the Internal Revenue Code, a U.S. holder
is required to treat any payment that does not constitute a payment of
qualified stated interest on, or any gain on the sale, exchange, retirement or
other disposition of, a note as ordinary income to the extent of the accrued
market discount that has not previously been included in income. Thus, partial
principal payments are treated as ordinary income to the extent of accrued
market discount that has not previously been included in income. If such note
is disposed of by the U.S. holder in certain otherwise nontaxable transactions,
accrued market discount must be included as ordinary income by the U.S. holder
as if the holder had sold the note at its then fair market value.
In general, the amount of market discount that has accrued is determined on
a ratable basis. A U.S. holder may, however, elect to determine the amount of
accrued market discount on a constant yield to maturity basis. This election is
made on a note-by-note basis and is irrevocable.
With respect to notes with market discount, a U.S. holder may not be allowed
to deduct immediately a portion of the interest expense on any indebtedness
incurred or continued to purchase or to carry the notes. A U.S. holder may
elect to include market discount in income currently as it accrues, in which
case the interest deferral rule set forth in the preceding sentence will not
apply. This election will apply to all debt instruments acquired by the U.S.
holder on or after the first day of the first taxable year to which the
election applies and is irrevocable without the consent of the Internal Revenue
Service. A U.S. holder's tax basis in a note will be increased by the amount of
market discount included in the holder's income under the election.
53
Premium and Acquisition Premium. If a U.S. holder purchases a note for an
amount in excess of the sum of all amounts payable on the note after the date
of acquisition, other than payments of qualified stated interest, the holder
will be considered to have purchased the note with "amortizable bond premium"
equal in amount to the excess, and generally will not be required to include
any original issue discount in income. Generally, a U.S. holder may elect to
amortize the premium as an offset to qualified stated interest income, using a
constant yield method similar to that described above, over the remaining term
of the note (where the note is not redeemable prior to its maturity date). A
U.S. holder who elects to amortize bond premium must reduce the holder's tax
basis in the note by the amount of the premium used to offset qualified stated
interest income as set forth above. An election to amortize bond premium
applies to all taxable debt obligations then owned and thereafter acquired by
the holder and may be revoked only with the consent of the Internal Revenue
Service.
If a U.S. holder purchases a note issued with original issue discount at an
"acquisition premium," the amount of original issue discount that the U.S.
holder includes in gross income is reduced to reflect the acquisition premium.
A note is purchased at an acquisition premium if its adjusted basis,
immediately after its purchase, is:
. less than or equal to the sum of all amounts payable on the note after
the purchase date other than payments of qualified stated interest and
. greater than the note's adjusted issue price.
If a note is purchased at an acquisition premium, the U.S. holder reduces
the amount of original issue discount that otherwise would be included in
income during an accrual period by an amount equal to
. the amount of original issue discount otherwise includible in income
multiplied by
. a fraction, the numerator of which is the excess of the adjusted basis of
the note immediately after its acquisition by the purchaser over the
adjusted issue price of the note and the denominator of which is the
excess of the sum of all amounts payable on the note after the purchase
date, other than payments of qualified stated interest, over the note's
adjusted issue price.
As an alternative to reducing the amount of original issue discount that
otherwise would be included in income by this fraction, the U.S. holder may
elect to compute original issue discount accruals by treating the purchase as a
purchase at original issuance and applying the constant yield method described
above.
Election to Treat All Interest as Original Issue Discount. U.S. holders may
elect to include in gross income all interest that accrues on a note, including
any stated interest, original issue discount, market discount, de minimis
market discount and unstated interest, as adjusted by amortizable bond premium
and acquisition premium, by using the constant yield method described above
under the heading "original issue discount." This election for a note with
amortizable bond premium will result in a deemed election to amortize bond
premium for all debt instruments owned and later acquired by the U.S. holder
with amortizable bond premium and may be revoked only with the permission of
the Internal Revenue Service. Similarly, this election for a note with market
discount will result in a deemed election to accrue market discount in income
currently for the note and for all other debt instruments acquired by the U.S.
holder with market discount on or after the first day of the taxable year to
which the election first applies, and may be revoked only with the permission
of the Internal Revenue Service. A U.S. holder's tax basis in a note will be
increased by each accrual of the amounts treated as original issue discount
under the constant yield election described in this paragraph.
Conversion. A U.S. holder of a note generally will not recognize gain or
loss on the conversion of a note into common stock except with respect to cash
in lieu of fractional shares. The holding period of the common stock received
upon conversion will include the period during which the note was held, and the
holder's aggregate tax basis in the common stock received upon conversion of
the note will be equal to the holder's aggregate tax basis in the note at the
time of conversion, less any portion allocable to any fractional share.
However, a holder's tax basis in shares of common stock considered attributable
to accrued interest generally will equal the amount of such accrued interest
included in income and the holding period will begin on the day
54
following the date of conversion. A U.S. holder of a note will recognize gain
or loss for federal income tax purposes upon the receipt of cash in lieu of a
fractional share of common stock in an amount equal to the difference between
the amount of cash received and the holder's tax basis in such fractional
share. This gain or loss should be capital gain or loss and should be taxable
as described under "Sale, Retirement, Redemption or Other Taxable Disposition
of Notes," below. The fair market value of shares of common stock received
which are attributable to accrued interest, will be taxable as ordinary
interest income.
Under Section 305 of the Internal Revenue Code, a U.S. holder of a note may
be deemed to have received a constructive distribution from us, which may
result in the inclusion of ordinary dividend income, in the event of certain
adjustments, or failure to make such adjustments, to the conversion price of
the notes.
Sale, Retirement, Redemption or Other Taxable Disposition of Notes. Upon the
sale, retirement, redemption or other taxable disposition of a note, including
tendering a note as payment of the exercise price of a warrant, a U.S. holder
will recognize gain or loss to the extent of the difference between the sum of
the cash and the fair market value of any property received in exchange
therefor (except to the extent attributable to the payment of accrued and
unpaid interest on the notes, which generally will be taxed as ordinary income
to the extent that the holder has not previously recognized this income), and
the U.S. holder's adjusted tax basis in the notes. A U.S. holder's tax basis in
a note will initially equal the price paid for such note and will subsequently
be increased by original issue discount or market discount previously included
in respect thereof and will be reduced, but not below zero, by any payments
received on the note of amounts included in the stated redemption price at
maturity of the note and by any premium that the U.S. holder has taken into
account. Generally, any such gain or loss recognized by a U.S. holder upon the
sale, retirement, redemption or other taxable disposition of a note will be
capital gain or loss, except as described under "Market Discount," above. In
the case of a non-corporate U.S. holder, such capital gain will be subject to
tax at a reduced rate if the note is held for more than one year. The
deductibility of capital losses is subject to limitation.
Tax Treatment of Warrants. A U.S. holder will generally not recognize gain
or loss upon exercise of warrants for cash (except with respect to any cash
received in lieu of a fractional share). A U.S. holder will have a tax basis in
the common stock received on exercise of a warrant equal to the sum of its tax
basis in the warrant and the aggregate cash exercise price paid in respect of
such exercise. The holding period of common stock received upon the exercise of
a warrant will commence on the day after the warrant is exercised.
An exercise of warrants using notes will be treated as a taxable disposition
of the notes. A U.S. holder will have a tax basis in the common stock received
equal to the sum of its tax basis in the surrendered warrant and the amount of
the exercise price. The holding period of common stock received will commence
on the day after the warrant is exercised.
The tax consequences of a cashless exercise of a warrant are not clear. Such
an exercise may be tax-free, either because the exercise is not a gain
realization event or because it qualifies as a tax-free recapitalization. In
the former case, a U.S. holder's tax basis in the common stock received would
equal the tax basis in the surrendered warrants and the holding period of such
common stock would commence on the day after the warrant is exercised. In the
latter case, a U.S. holder's tax basis in the common stock received would equal
the tax basis in the surrendered warrants, and the holding period of such
common stock would include the holding period of the surrendered warrants. It
is also possible that the cashless exercise of a warrant could be treated as a
taxable exchange in which gain or loss should be recognized.
If a warrant expires without being exercised, a U.S. holder will recognize a
capital loss in an amount equal to its tax basis in the warrant. The
deductibility of capital losses is subject to limitation. Upon the sale,
exchange or redemption of a warrant, a U.S. holder will generally recognize a
capital gain or loss equal to the difference, if any, between the amount
realized on such sale, exchange or redemption and the U.S. holder's tax basis
in such warrant. Such capital gain or loss will be long-term capital gain or
loss if, at the time of such sale, exchange or redemption, the warrant has been
held for more than one year.
55
Under Section 305 of the Internal Revenue Code, a U.S. holder of a warrant
may be deemed to have received a constructive distribution from the issuer,
which may result in the inclusion of ordinary dividend income, in the event of
certain adjustments to the number of shares of common stock to be issued on
exercise of a warrant.
We may be required to pay liquidated damages to holders of the warrants in
the circumstances described in "Registration Rights." The tax treatment of the
liquidated damages is unclear. It may be treated as a tax-free purchase price
adjustment, but it is possible that the Internal Revenue Service will treat the
liquidated damages, if paid, as taxable to a U.S. holder as ordinary income at
the time it accrues or is received in accordance with the holder's method of
accounting for U.S. federal income tax purposes.
Distributions on Common Stock. Distributions on common stock will be taxable
to U.S. holders as ordinary income, to the extent paid out of our current or
accumulated earnings and profits, than as a tax-free return of capital to the
extent of the U.S. holder's tax basis in the common stock, and thereafter as
capital gain from the sale or exchange of such common stock. Subject to certain
restrictions, dividends received by a corporate U.S. holder will be eligible
for a dividends received deduction.
Disposition of Common Stock. A U.S. holder will recognize capital gain or
loss upon the sale, exchange or other taxable disposition of the common stock
in an amount equal to the difference between the amount of cash and the fair
market value of other property received, if any, by the U.S. holder and the
U.S. holder's tax basis in the common stock. In the case of non-corporate U.S.
holder, such capital gain will be subject to tax at a reduced rate if the
common stock is held for more than one year. The deductibility of capital
losses is subject to limitation.
Liquidated Damages. We may be required to pay liquidated damages to holders
of the notes and holders of the warrants in the circumstances described in
"Registration Rights." We intend to withhold tax at a 30% rate from any such
payments to non-U.S. holders. If any of the payments were determined not to be
subject to U.S. federal income taxation, a non-U.S. holder would be entitled to
a refund of the tax withheld.
Information Reporting; Backup Withholding. We are required to furnish to the
record holders of the notes and common stock, other than corporations and other
exempt holders, and to the Internal Revenue Service, information with respect
to interest paid and the amount of original issue discount accrued on the notes
and dividends paid on the common stock.
A U.S. holder may be subject to backup withholding with respect to interest
and original issue discount paid on the notes, dividends paid on the common
stock or with respect to proceeds received from a disposition of the notes,
warrants or shares of common stock. Certain holders (including, among others,
corporations and certain tax-exempt organizations) are generally not subject to
backup withholding. A U.S. holder will be subject to backup withholding if such
holder is not otherwise exempt and such holder:
. fails to furnish its taxpayer identification number, which, for an
individual is ordinarily his or her social security number;
. furnishes an incorrect taxpayer identification number;
. is notified by the Internal Revenue Service that it has failed to
properly report payments of interest or dividends; or
. fails to certify, under penalties of perjury, that it has furnished a
correct taxpayer identification number and that the Internal Revenue
Service has not notified the U.S. holder that it is subject to backup
withholding.
Backup withholding is not an additional tax but, rather, is a method of tax
collection. U.S. holders will be entitled to credit any amounts withheld under
the backup withholding rules against their actual tax liabilities provided the
required information is furnished to the Internal Revenue Service.
56
Non-U.S. Holders
Interest and Original Issue Discount. In general, a non-U.S. holder will not
be subject to U.S. federal income tax or withholding tax with respect to stated
interest or original issue discount received or accrued on the notes so long as
. the interest and original issue discount is not effectively connected
with the conduct of a trade or business within the United States,
. the non-U.S. holder does not actually or constructively own 10% or more
of the total combined voting power of all our classes of stock entitled
to vote,
. the non-U.S. holder is not a controlled foreign corporation that is
related to us actually or constructively through stock ownership, and
. the non-U.S. holder properly certifies as to its foreign status as
described below.
A non-U.S. holder can generally meet the certification requirement by
providing a properly executed Form W-8 or suitable substitute form. If the non-
U.S. holder holds the notes through a financial institution or other agent
acting on the holder's behalf, the holder may be required to provide
appropriate certifications to the agent. The holder's agent will then generally
be required to provide appropriate certifications to us. Special rules apply to
foreign partnerships, estates and trusts, and in certain circumstances
certifications as to foreign status of partners, trust owners or beneficiaries
may have to be provided to us. In addition, special rules apply to qualified
intermediaries that enter into withholding agreements with the Internal Revenue
Service, and such intermediaries generally are not required to forward any
certification forms received from non-U.S. holders.
Dividends on Common Stock. In general, dividends (i.e., distributions or
deemed distributions to the extent of our current or accumulated earnings and
profits for federal income tax purposes) received by non-U.S. holders of common
stock will be subject to withholding of U.S. federal income tax at a 30% rate,
unless such rate is reduced by an applicable income tax treaty. Dividends that
are effectively connected with such non-U.S. holder's conduct of a trade or
business in the United States (and if a tax treaty applies, dividends that are
attributable to a U.S. permanent establishment of such holder) are generally
subject to U.S. federal income tax at on a net income basis and are exempt from
the 30% withholding tax (assuming compliance with certain certification
requirements). Any such effectively connected dividends received by a non-U.S.
holder that is a corporation may also, under certain circumstances, be subject
to an additional "branch profits tax" at a 30% rate or such lower rate as may
be applicable under an income tax treaty.
In order to claim the benefit of a tax treaty or to claim exemption from
withholding because the income is effectively connected with the conduct of a
trade or business in the U.S., a non-U.S. holder must provide a properly
executed Internal Revenue Service Form W-8BEN for treaty benefits or W-8ECI for
effectively connected income (or such successor form as the Internal Revenue
Service designates), prior to the payment of dividends. These forms must be
periodically updated. non-U.S. holders may obtain a refund of any excess
amounts withheld by timely filing an appropriate claim for refund. If a non-
U.S. holder holds common stock through a foreign partnership or a foreign
intermediary, the foreign partnership or foreign intermediary will also be
required to comply with certain certification requirements.
Gain on Disposition of Notes, Warrants or Common Stock. Non-U.S. holders
generally will not be subject to U.S. federal income taxation, including by way
of withholding, on gain recognized on a disposition of notes, warrants or
common stock so long as
. the gain is not effectively connected with the conduct by the non-U.S.
holder of a trade or business within the United States (or if a tax
treaty applies, the gain is not effectively connected with the conduct by
the non-U.S. holder of a trade or business within the United States and
attributable to a U.S. permanent establishment maintained by such non-
U.S. holder) and
57
. in the case of a non-U.S. holder who is an individual, such non-U.S.
holder is not present in the United States for 183 days or more in the
taxable year of disposition and certain other requirements are met. A
non-U.S. holder could be subject to U.S. federal income taxation on any
additional payment received upon converting a note after it has been
called for provisional redemption. We intend to withhold tax from any
such payment. If the payment were determined not to be subject to U.S.
federal income taxation, a non-U.S. holder would be entitled to a refund
of the tax withheld.
Information Reporting; Backup Withholding. Generally, payments of interest,
original issue discount, premium or principal on the notes to non-U.S. holders
will not be subject to information reporting or backup withholding if the non-
U.S. holder certifies, under penalties of perjury, as to its foreign status or
otherwise establishes an exemption.
We must report annually to the Internal Revenue Service and to each non-U.S.
holder the amount of dividends paid to each non-U.S. holder on common stock
(and the tax withheld with respect to the dividends), regardless of whether
withholding was reduced or eliminated by an applicable tax treaty. Pursuant to
tax treaties or other agreements, the Internal Revenue Service may make its
reports available to tax authorities in the recipient's country of residence.
Backup withholding will generally not apply to payments of dividends made by
us to a non-U.S. holder of common stock if the holder has provided its taxpayer
identification number or the required certification that it is not a U.S.
person as described above. Information reporting may still apply with respect
to such dividends even if such certification is provided. Notwithstanding the
foregoing, backup withholding may apply if we have actual knowledge, or reason
to know, that the holder is a U.S. person.
Information reporting requirements and backup withholding generally will not
apply to any payments of the proceeds of the disposition of notes, warrants or
shares of common stock effected outside the U.S. by a foreign office or a
foreign broker (as defined in applicable Treasury regulations). However, unless
such broker has documentary evidence in its records that the beneficial owner
is a non-U.S. holder and certain other conditions are met, or the beneficial
owner otherwise establishes an exemption, information reporting (but not backup
withholding) will apply to any such payments effected outside the U.S. by such
a broker if it:
. derives 50% or more of its gross income for certain periods from the
conduct of a trade or business in the U.S.;
. is a controlled foreign corporation for U.S. federal income tax purposes;
or
. is a foreign partnership that, at any time during its taxable year, has
50% or more of its income or capital interests owned by U.S. persons or
is engaged in the conduct of a U.S. trade or business.
Payments of the proceeds of a disposition of notes, warrants or shares of
common stock effected by the U.S. office of a broker will be subject to
information reporting requirements and backup withholding tax unless the non-
U.S. holder properly certifies under penalties of perjury as to its foreign
status and certain other conditions are met or it otherwise establishes an
exemption.
Any amount withheld under the backup withholding rules may be credited
against the non-U.S. holder's U.S. federal income tax liability and any excess
may be refundable if the proper information is provided to the Internal Revenue
Service.
58
LEGAL MATTERS
Certain legal matters in connection with the notes, warrants, units and
common stock offered by this prospectus will be passed upon for us by Latham &
Watkins, Menlo Park, California.
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements incorporated by reference in this
prospectus from TiVo's Annual Report on Form 10-K for the year ended December
31, 2000 and TiVo's Transition Report on Form 10-K for the transition period
ended January 31, 2001 have been audited by Arthur Andersen LLP, independent
public accountants, as stated in their reports, which are incorporated herein
by reference.
INCORPORATION BY REFERENCE
We have incorporated by reference into this prospectus the documents listed
below that we have filed with the Securities and Exchange Commission:
. Our transition report on Form 10-K for the one-month transition period
ended January 31, 2001, filed on April 30, 2001;
. Our amended and restated annual report on Form 10-K for the year ended
December 31, 2000, filed on April 9, 2001;
. Our definitive proxy statement for our 2001 annual meeting of
stockholders, filed on April 30, 2001 (except that, based on Securities
and Exchange Commission regulations, the performance graph, the
Compensation Committee Report and the Audit Committee Report contained
therein specifically are not incorporated by reference);
. Our quarterly report on Form 10-Q for the quarter ended July 31, 2001,
filed on September 14, 2001;
. Our quarterly report on Form 10-Q for the quarter ended April 30, 2001,
filed on June 14, 2001;
. Our current reports on Form 8-K, filed on February 1, 2001, February 14,
2001, February 28, 2001, March 15, 2001, March 19, 2001, July 24, 2001,
August 20, 2001, August 30, 2001, August 31, 2001 and October 31, 2001;
and
. the description of our common stock contained in our registration
statement on Form 8-A, filed with the Securities and Exchange Commission
on August 25, 1999.
We incorporate by reference into this prospectus any future filings that we
make with the Securities and Exchange Commission under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934, until the date of
completion of the sale of securities covered by this prospectus. This means
that we can disclose important business, financial and other information in
this prospectus by referring you to the publicly filed documents containing
this information. All information incorporated by reference is part of this
prospectus, unless and until that information is updated and superseded by the
information contained in this prospectus or any information incorporated later.
Any information that we subsequently file with the Securities and Exchange
Commission that is incorporated by reference will automatically update and
supersede any previous information that is part of this prospectus.
We will provide without charge to each person to whom a copy of this
prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated by reference. You may obtain
copies of these documents from us without charge by writing to us at TiVo Inc.,
2160 Gold Street, Alviso, California 95002, or calling us at (408) 519-9100.
59
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational and reporting requirements of the
Securities Exchange Act of 1934, under which we file periodic reports, proxy
statements and other information with the Securities and Exchange Commission.
Copies of the reports, proxy statements and other information may be examined
without charge at the Public Reference Section of the Securities and Exchange
Commission, 450 Fifth Street, N.W. Room 1024, Washington, D.C. 20549 or on the
Internet at http://www.sec.gov. Copies of all or a portion of such materials
can be obtained from the Public Reference Section of the Securities and
Exchange Commission upon payment of prescribed fees. Please call the Securities
and Exchange Commission at 800-SEC-0330 for further information about the
Public Reference Room. These reports, proxy and information statements and
other information may also be inspected at the offices of Nasdaq Operations,
1735 K Street, N.W., Washington, D.C. 20006.
60
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--------------------------------------------------------------------------------
[TIVO INC. LOGO]
TIVO INC.
$51,750,000 of 7% Convertible Senior Notes Due 2006
2,682,600 Five-Year Warrants to Purchase 2,682,600 Shares of Common Stock
4,064,542 Units Consisting of
4,064,542 One-Year Warrants to Purchase 4,064,542 Shares of Common Stock and
4,064,542 Five-Year Terminable Warrants to Purchase 1,341,299 Shares of Common
Stock
Shares of Common Stock Issuable upon
Conversion of the Notes and Exercise of the Warrants
----------------
PROSPECTUS
----------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information contained or
incorporated by reference in this prospectus is accurate as of any date other
than the date of this prospectus. We are not making an offer of these
securities in any state where the offer is not permitted.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by the
registrant in connection with the sale of the 7% Convertible Senior Notes Due
2006; the Five-Year Warrants; the Units consisting of One-Year Warrants and
Five-Year Terminable Warrants; the One-Year Warrants; the Five-Year Terminable
Warrants; and the common stock being registered. All of the amounts shown are
estimates except the Securities and Exchange Commission (the "Commission")
registration fee.
Amount
-----------
Commission Registration Fee..................................... $ 27,673.00
Costs of Printing*.............................................. $ 30,000.00
Legal Fees and Expenses*........................................ $100,000.00
Accounting Fees and Expenses*................................... $ 25,000.00
Miscellaneous Expenses*......................................... $ 17,327.00
-----------
Total*........................................................ $200,000.00
===========
--------
* Estimated
Item 15. Liability and Indemnification of Directors and Officers.
We are a Delaware corporation. Subsection (b)(7) of Section 102 of the
Delaware General Corporation Law enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which the director derived an
improper personal benefit.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any present or former director, officer,
employee or agent of the corporation, or any individual serving at the
corporation's request as a director, officer, employee or agent of another
organization, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding
provided that such director, officer, employee or agent acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided further that such director, officer, employee or agent had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
present or former director, officer, employee or agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person acted in any of the capacities set
forth above, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit provided that such director, officer, employee or agent
acted in good faith and in a manner reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect to any claim, issue or matter as to
which such director, officer, employee or agent shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the
II-1
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification and advancement of expenses provided
for, by, or granted pursuant to, Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and empowers
the corporation to purchase and maintain insurance on behalf of a present or
former director, officer, employee or agent of the corporation, or any
individual serving at the corporation's request as a director, officer or
employee of another organization, against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Our Amended and Restated Certificate of Incorporation provides that our
directors shall not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i)
for any breach of duty of loyalty to Registrant or to its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Our Amended and Restated Certificate of
Incorporation further states that if the Delaware General Corporation Law is
later amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Our Amended and Restated Bylaws provide that we shall indemnify our officers
and directors to the fullest extent not prohibited by Delaware law and
authorizes us to modify the extent of such indemnification by individual
contracts with our officers and directors. Our Amended and Restated Bylaws
further provide, however, that we shall not be required to indemnify any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in our sole discretion, pursuant to the powers vested in the corporation under
the Delaware General Corporation Law or (iv) such indemnification is required
to be made pursuant to our contractual obligations to our directors and
officers. Our Amended and Restated Bylaws further provide that we have the
power to indemnify our officers, employees and other agents as set forth in the
Delaware General Corporation Law.
We have entered into indemnification agreements with substantially all of
our executive officers and directors, which provide indemnification under
certain circumstances for acts and omissions which may not be covered by any
directors' and officers' liability insurance.
II-2
Item 16. Index to Exhibits.
Exhibit
Number Exhibit Description
------- -------------------
4.1 Indenture, dated as of August 28, 2001, among TiVo Inc. and The Bank
of New York, as Trustee, regarding the 7% Convertible Senior Notes due
2006 (previously filed as Exhibit 4.1 to our Current Report on Form 8-
K, filed on August 30, 2001 and incorporated herein by reference).
4.2 Form of Note (previously filed as Exhibit 4.1 to our Quarterly Report
on Form 10-Q for the quarterly period ended July 31, 2001 and
incorporated herein by reference).
4.3 Warrant Agreement, dated as of August 28, 2001, among TiVo Inc. and
The Bank of New York, as Warrant Agent, regarding the Five-Year
Warrants (previously filed as Exhibit 4.2 to our Current Report on
Form 8-K, filed on August 30, 2001 and incorporated herein by
reference).
4.4 Form of Five-Year Warrant (previously filed as Exhibit 4.2 to our
Quarterly Report on Form 10-Q for the quarterly period ended July 31,
2001 and incorporated herein by reference).
4.5 Warrant Agreement, dated as of August 28, 2001, among TiVo Inc. and
The Bank of New York, as Warrant Agent, regarding the One-Year
Warrants (previously filed as Exhibit 4.3 to our Current Report on
Form 8-K, filed on August 30, 2001 and incorporated herein by
reference).
4.6 Form of One-Year Warrant (previously filed as Exhibit 4.3 to our
Quarterly Report on Form 10-Q for the quarterly period ended July 31,
2001 and incorporated herein by reference).
4.7 Warrant Agreement, dated as of August 28, 2001, among TiVo Inc. and
The Bank of New York, as Warrant Agent, regarding the Five-Year
Terminable Warrants (previously filed as Exhibit 4.4 to our Current
Report on Form 8-K, filed on August 30, 2001 and incorporated herein
by reference).
4.8 Form of Five-Year Terminable Warrant (previously filed as Exhibit 4.4
to our Quarterly Report on Form 10-Q for the quarterly period ended
July 31, 2001 and incorporated herein by reference).
4.9 Registration Rights Agreement, dated as of August 28, 2001, among TiVo
Inc. and the securityholders named therein (previously filed as
Exhibit 99.3 to our Current Report on Form 8-K, filed on August 30,
2001 and incorporated herein by reference).
4.10 Amended and Restated Certificate of Incorporation (previously filed as
Exhibit 3.2 to our Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2000 and incorporated herein by reference).
4.11 Amended and Restated Bylaws (previously filed as Exhibit 3.4 to our
Registration Statement on Form S-1, File No. 333-83515, and
incorporated herein by reference).
4.12 Form of Common Stock Certificate (previously filed as Exhibit 4.2 to
our Registration Statement on Form S-1, File No. 333-83515, and
incorporated herein by reference).
*5.1 Opinion of Latham & Watkins.
*12.1 Statement of Computation of Ratios.
*23.1 Consent of Latham & Watkins.
*23.2 Consent of Independent Public Accountants.
*24.1 Power of Attorney.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee of The Bank of New York (Form
T-1).
--------
* Previously filed.
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Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
increase or decrease in volume of securities offered would not exceed
that which was registered) and any deviation from the low or high of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price, set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the registration
statement;
provided, however, that clauses (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described above, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. If a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Alviso, state of California, on the 1st day of
November, 2001.
Tivo Inc.
/s/ Michael Ramsay
By: ________________________________
Michael Ramsay
Chief Executive Officer and
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Michael Ramsay Chief Executive Officer and November 1, 2001
______________________________________ Chairman of the Board of
Michael Ramsay Directors (Principal
Executive Officer)
* Chief Financial Officer and November 1, 2001
______________________________________ Senior Vice President of
David H. Courtney Finance and Administration
(Principal Financial and
Accounting Officer)
* Director November 1, 2001
______________________________________
Stewart Alsop
* Director November 1, 2001
______________________________________
James Barton
* Director November 1, 2001
______________________________________
Larry N. Chapman
* Director November 1, 2001
______________________________________
John S. Hendricks
Director
______________________________________
Michael J. Homer
II-5
Signature Title Date
--------- ----- ----
* Director November 1, 2001
______________________________________
Randy Komisar
Director
______________________________________
Jan P. Oosterveld
* Director November 1, 2001
______________________________________
Geoffrey Y. Yang
Director
______________________________________
David M. Zaslav
*/s/ Michael Ramsay
By:_____________________________
Michael Ramsay
as attorney-in-fact
II-6
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------- -------------------
4.1 Indenture, dated as of August 28, 2001, among TiVo Inc. and The Bank
of New York, as Trustee, regarding the 7% Convertible Senior Notes due
2006 (previously filed as Exhibit 4.1 to our Current Report on Form 8-
K, filed on August 30, 2001 and incorporated herein by reference).
4.2 Form of Note (previously filed as Exhibit 4.1 to our Quarterly Report
on Form 10-Q for the quarterly period ended July 31, 2001 and
incorporated herein by reference).
4.3 Warrant Agreement, dated as of August 28, 2001, among TiVo Inc. and
The Bank of New York, as Warrant Agent, regarding the Five-Year
Warrants (previously filed as Exhibit 4.2 to our Current Report on
Form 8-K, filed on August 30, 2001 and incorporated herein by
reference).
4.4 Form of Five-Year Warrant (previously filed as Exhibit 4.2 to our
Quarterly Report on Form 10-Q for the quarterly period ended July 31,
2001 and incorporated herein by reference).
4.5 Warrant Agreement, dated as of August 28, 2001, among TiVo Inc. and
The Bank of New York, as Warrant Agent, regarding the One-Year
Warrants (previously filed as Exhibit 4.3 to our Current Report on
Form 8-K, filed on August 30, 2001 and incorporated herein by
reference).
4.6 Form of One-Year Warrant (previously filed as Exhibit 4.3 to our
Quarterly Report on Form 10-Q for the quarterly period ended July 31,
2001 and incorporated herein by reference).
4.7 Warrant Agreement, dated as of August 28, 2001, among TiVo Inc. and
The Bank of New York, as Warrant Agent, regarding the Five-Year
Terminable Warrants (previously filed as Exhibit 4.4 to our Current
Report on Form 8-K, filed on August 30, 2001 and incorporated herein
by reference).
4.8 Form of Five-Year Terminable Warrant (previously filed as Exhibit 4.4
to our Quarterly Report on Form 10-Q for the quarterly period ended
July 31, 2001 and incorporated herein by reference).
4.9 Registration Rights Agreement, dated as of August 28, 2001, among TiVo
Inc. and the securityholders named therein (previously filed as
Exhibit 99.3 to our Current Report on Form 8-K, filed on August 30,
2001 and incorporated herein by reference).
4.10 Amended and Restated Certificate of Incorporation (previously filed as
Exhibit 3.2 to our Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2000 and incorporated herein by reference).
4.11 Amended and Restated Bylaws (previously filed as Exhibit 3.4 to our
Registration Statement on Form S-1, File No. 333-83515, and
incorporated herein by reference).
4.12 Form of Common Stock Certificate (previously filed as Exhibit 4.2 to
our Registration Statement on Form S-1, File No. 333-83515, and
incorporated herein by reference).
*5.1 Opinion of Latham & Watkins.
*12.1 Statement of Computation of Ratios.
*23.1 Consent of Latham & Watkins.
*23.2 Consent of Independent Public Accountants.
*24.1 Power of Attorney.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee of The Bank of New York (Form
T-1).
--------
* Previously filed.
II-7