Exhibit 15
----------
TIVO INC.
No. OYW-17 Unit CUSIP No. 888706 40 5
Warrant CUSIP No. 888706 15 7
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR
THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER
APPENDED TO THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS
DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY) AND THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE
OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE
TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH
TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF
COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED
INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE
FIVE-YEAR TERMINABLE WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING
THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE
SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE FIVE-YEAR
TERMINABLE WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE
DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE
SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT.
WARRANT CERTIFICATE
REPRESENTING 742,721 WARRANTS TO PURCHASE COMMON STOCK
This certifies that National broadcasting company, inc., or its
registered assigns, is the registered owner of seven hundred forty-two
thousand seven hundred twenty-one (742,721) Warrants, each expiring August
28, 2002, and each of which entitles the registered owner thereof (the
"Warrantholder") to purchase at any time prior to the expiration hereof from
TIVO INC., a Delaware corporation (the "Company"), one share of Common Stock
(the "Common Stock"), $0.001 par value per share, of the Company at the
purchase price of $6.73 per share of Common Stock (the "Exercise Price"),
subject to adjustment as provided in the Warrant Agreement hereinafter
referred to.
The Warrants evidenced by this Warrant are issued under and in
accordance with the Warrant Agreement, dated as of August 28, 2001 (the
"Warrant Agreement"), between the Company and The Bank of New York, as
warrant agent (the "Warrant Agent"), and the Registration Rights Agreement,
dated of even date therewith (the "Registration Rights Agreement"), among the
Company and the initial purchasers of the Warrants, and are subject to the
terms and provisions contained therein, to all of which terms and provisions
the holder of this Warrant consents by acceptance of this Warrant and which
Warrant Agreement and Registration Rights Agreement are hereby incorporated
by reference in and made a part of this Warrant.
Any Warrants represented by this Certificate shall be transferable
or exchangeable only as a Unit with a like number of Five-Year Terminable
Warrants (as defined in the Warrant Agreement).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Reference is hereby made to the Warrant Agreement and the
Registration Rights Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Company and the Warrantholders. The summary of the terms of the Warrant
Agreement and the Registration Rights Agreement contained in this Warrant is
qualified in its entirety by express reference to such agreements. All
capitalized terms used but not defined in this Warrant shall have the
meanings assigned to them in the Warrant Agreement.
As provided in the Warrant Agreement, and subject to the terms and
conditions set forth therein including early termination at the Company's
option, the Warrants shall be exercisable, unless earlier terminated at the
Company's option as described below, if applicable, at any time during the
period commencing on the day after the date of the Warrant Agreement and
ending at 5:00 p.m., New York time, on August 28, 2002 (the "Expiration
Date"). This Warrant may be exercised on any Business Day on or prior to
close of business on the Expiration Date.
Any Warrant not exercised before the close of business on the
Expiration Date, or the Termination Date, as the case may be, shall become
void, and all rights of the holder under the Warrant Certificate evidencing
such Warrant and under this Agreement shall cease.
If at any time prior to the Expiration Date, (1) the Closing Price
(as defined in Section 12 of the Warrant Agreement) per share of the Common
Stock has exceeded 150% of the Exercise Price then in effect for at least 20
Trading Days (as defined in Section 12(h) of the Warrant Agreement) within a
period of 30 consecutive Trading Days (the "Determination Period") and (2) a
shelf registration statement covering resales of the Common Stock issuable
upon exercise of the Warrants is effective and available for use at all times
during the period beginning 60 days prior to the Notice Date and ending on
the Termination Date, and is expected to remain effective and available for
use for at least 30 days following the Termination Date, then the Company
may, at its option, terminate the Warrants. By following the procedures set
forth below, the Company may exercise this right of termination only if,
within 30 days following the Determination Period, the Company or, at its
request, the Warrant Agent, in the name of and at the expense of the Company,
shall mail or cause to be mailed a notice of such termination (the
"Termination Notice," and the date such Termination Notice is mailed, the
"Notice Date") to the holders of the Warrants at their last addresses as the
same appear on the Warrant register (provided that if the Company shall give
such notice, it shall also give such notice to the Warrant Agent). Such
mailing shall be by first class mail and the Company shall contemporaneously
issue a press release through PRNewswire or Bloomberg containing
substantially the same information as the notice of termination described
below. Each such notice of termination shall specify the CUSIP number or
numbers of such Warrants, the Termination Date, that the Warrants may not be
exercised after 5:00 p.m., New York City time, on the Termination Date, the
current Exercise Price, that the Five-Year Terminable Warrants with which
such Warrants comprise Units shall also terminate, and the CUSIP number or
numbers of such Five-Year Warrants. The notice, if mailed in the manner
herein provided, shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the holder of any Warrant
shall not affect the validity of the proceedings for the termination of any
other Warrant.
If the conditions described in the preceding paragraph have been
met, any Warrant not exercised before the close of business on the 60th day
after the mailing date of the notice of termination (such 60th day, the
"Termination Date") shall become void and all of the rights of the holder
under the Warrant Certificate evidencing such Warrant and under this
Agreement shall cease.
The Exercise Price and the number of shares of Common Stock
purchasable upon exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement. If any of the following events occur,
namely (i) any reclassification or change of the outstanding shares of Common
Stock (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), (ii) any consolidation, merger or combination of the Company
with another person as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, (iii) any
statutory exchange, as a result of which holders of Common Stock generally
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock (such
transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the
properties and assets of the Company as, or substantially as, an entirety to
any other person as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, then the Company
or the successor or purchasing person, as the case may be, shall execute with
the Warrant Agent a supplemental warrant agreement providing that such
Warrant shall be exercisable for the kind and amount of shares of stock and
other securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, Statutory
Exchange, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon exercise of such Warrants (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available for issuance
upon exercise of all such Warrants) immediately prior to such
reclassification, change, consolidation, merger, combination, Statutory
Exchange, sale or conveyance assuming such holder of Common Stock did not
exercise his rights of election, if any, that holders of Common Stock who
were entitled to vote or consent to such transaction had as to the kind or
amount of securities, cash or other property receivable upon such
consolidation, merger, combination, Statutory Exchange, sale or conveyance
(provided that, if the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, combination, Statutory Exchange,
sale or conveyance is not the same for each share of Common Stock in respect
of which such rights of election shall not have been exercised ("non-electing
share"), then for the purposes of Section 13 of the Warrant Agreement the
kind and amount of securities, cash or other property receivable upon such
consolidation, merger, combination, Statutory Exchange, sale or conveyance
for each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental warrant agreement shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
Section 12 of the Warrant Agreement. If, in the case of any such
reclassification, change, consolidation, merger, combination, Statutory
Exchange, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of shares of Common Stock include shares of
stock or other securities and assets of a corporation other than the
successor or purchasing person, as the case may be, in such reclassification,
change, consolidation, merger, combination, Statutory Exchange, sale or
conveyance, then such supplemental warrant agreement shall also be executed
by such other person and shall contain such additional provisions to protect
the interests of the holders of the Warrants as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The Exercise Price
for the stock and other securities, property and assets (including cash) so
receivable upon such event shall be an amount equal to the Exercise Price
immediately prior to such event.
The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Warrants or to distribute certificates
which evidence such fractional shares. If more than one Warrant shall be
presented for exercise in full at the same time by the same holder, the
number of full shares of Common Stock which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
shares of Common Stock purchasable on exercise of all Warrants so presented.
In lieu any of fractional shares, there shall be paid to the registered
holders of Warrant Certificates at the time such Warrant Certificates are
exercised an amount in cash equal to the same fraction of the current market
value of a share of Common Stock. For purposes of this calculation, the
current market value of a share of Common Stock shall be the Closing Price of
a share of Common Stock for the Trading Day immediately prior to the date of
such exercise.
The Company covenants that it will at all times through 5:00 p.m.,
New York time, on the Expiration Date (or, if the Expiration Date shall not
be a Business Day, then on the next-succeeding Business Day) reserve, free
from preemptive rights, and keep available out of its authorized but unissued
shares or shares held in treasury or a combination thereof of Common Stock,
solely for the purpose of issue upon exercise of Warrants as herein provided,
sufficient shares of Common Stock, for issuance upon exercise of, the
Warrants from time to time as such Warrants are presented for exercise. The
Company covenants that all shares of Common Stock issued upon exercise of
Warrants shall be duly and validly issued and fully paid and non-assessable
and free from all taxes, liens and charges with respect to the issue thereof.
The initial issuance of certificates of Common Stock upon the
exercise of Warrants shall be made without charge to the exercising
Warrantholders for any tax in respect of the issuance of such stock
certificates, and such stock certificates shall be issued in the respective
names of, or in such names as may be directed by, the registered holders of
the Warrants exercised, subject to the restrictions on transfer set forth
herein and in the Warrant Agreement; provided, however, that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such stock certificate,
any Warrant Certificates or other securities in a name other than that of the
registered holder of the Warrant Certificate surrendered upon exercise of the
Warrant, and the Company shall not be required to issue or deliver such
certificates or other securities unless and until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
Subject to the terms and provisions of the Registration Rights
Agreement, the Company shall file under the Securities Act a registration
statement providing for the registration of all of the Warrants and the
shares of Common Stock issuable upon exercise thereof.
As provided in the Warrant Agreement and the Registration Rights
Agreement, the Warrantholders have additional rights and duties with respect
to the registration of the Warrants and the Common Stock issuable upon
exercise of the Warrants. A Warrantholder may be required to indemnify and
hold the Company and certain other persons harmless in connection with
written information furnished to the Company by or on behalf of such
Warrantholder specifically for use in any registration statement, or any
preliminary or final or summary Prospectus contained therein or any amendment
or supplement thereto.
By its acceptance of any Warrant represented by a Warrant
Certificate bearing a restrictive legend, each holder and beneficial owner of
such a Warrant acknowledges the restrictions on transfer of such a Warrant
set forth in such legend and agrees that it will transfer such a Warrant only
in accordance with such legend.
Subject to the restrictions on transfer set forth herein and in the
Warrant Agreement, this Warrant and all rights hereunder are transferable by
the registered Warrantholder hereof, in whole or in part, on the Warrant
register, upon surrender of this Warrant Certificate duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Warrant Agent duly executed, with signatures guaranteed as
specified in the attached "Form of Assignment," by the registered
Warrantholder hereof or his attorney duly authorized in writing and upon
payment of any necessary transfer tax or other governmental charge imposed
upon such transfer. Upon any partial transfer, the Company will issue and the
Warrant Agent will countersign and deliver to such Warrantholder a new
Warrant Certificate or Warrant Certificates with respect to any portion not
so transferred. Each taker and holder of this Warrant, by taking and holding
the same, consents and agrees that prior to the registration of transfer as
provided in the Warrant Agreement, the Company and the Warrant Agent may
treat the person in whose name the Warrants are registered as the absolute
owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, any notice to the contrary notwithstanding.
This Warrant Certificate may be exchanged at the office of the
Warrant Agent for Warrant Certificates representing the same aggregate number
of Warrants, each new Warrant Certificate to represent such number of
Warrants as the holder hereof shall designate at the time of such exchange.
Prior to the exercise of the Warrants represented hereby, the holder
of this Warrant shall not be entitled, as such, to any rights of a
stockholder of the Company, including, without limitation, the right to vote
or to consent to any action of the stockholders of the Company, to receive
dividends or other distributions, to exercise any preemptive right or to
receive any notice of meetings of stockholders of the Company, and shall not
be entitled to receive any notice of any proceedings of the Company except as
provided in the Warrant Agreement.
Copies of the Warrant Agreement are on file at the office of the
Warrant Agent and may be obtained by writing to the Warrant Agent at the
following address:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION,
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
This Warrant shall not be valid for any purpose until it shall have
been countersigned by the Warrant Agent.
TIVO INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
Attest:
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, Finance
and Administration and
Chief Financial Officer
Countersigned:
THE BANK OF NEW YORK
as Warrant Agent
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Authorized Signatory
Dated: August 28, 2001
EXERCISE FORM
(To be executed only upon exercise of Warrant)
The undersigned registered holder of a Warrant Certificate
representing __________ Warrants irrevocably elects to exercise ________ of
the Warrants represented by the Warrant Certificate for the purchase of one
share (subject to adjustment as set forth in the Warrant Agreement) of Common
Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and
herewith makes payment of $______ (such payment being in cash or by certified
or official bank check payable to the order or at the direction of TiVo
Inc.), all at the exercise price and on the terms and conditions specified in
the Warrant and the Warrant Agreement therein referred to, and surrenders all
of its right, title and interest in the number of Warrants exercised herein
to TiVo Inc., and directs that the shares of Common Stock or other securities
or property deliverable upon the exercise of such Warrants, and any Warrant
Certificate or interests in the Warrant representing unexercised Warrants, be
registered or placed in the name and at the address specified below and
delivered thereto.
Dated:
________________________________________
(Signature of Warrantholder)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signature Guaranteed By:
________________________________________
This form must be delivered to the Warrant Agent at the Corporate Office,
which initially shall be 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, X.X. 10286,
Attention: Corporate Trust Administration. Copies of this form must be sent
by facsimile to TiVo Inc., attention General Counsel ((000) 000-0000) and
Xxxxxx & Xxxxxxx, attention Xxxx Xxxxxxx ((000) 000-0000).
1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO:
IF IN CERTIFICATED FORM (Common Stock or Notes:
Social Security Number or identifying number: ______________________________
Name: ______________________________________________________________________
Street Address:_____________________________________________________________
City, State and Zip Code:___________________________________________________
IF IN BOOK-ENTRY FORM THROUGH DTC:
ACCOUNT NUMBER:_____________________________________________________________
ACCOUNT NAME:_______________________________________________________________
ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN
THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO:
Social Security Number or identifying number: ______________________________
Name: ______________________________________________________________________
Street Address:_____________________________________________________________
City, State and Zip Code:___________________________________________________
FORM OF ASSIGNMENT AND TRANSFER
FOR VALUE RECEIVED the undersigned registered holder of the within
Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Warrants
constituting a part of the Warrants evidenced by the within Warrant
Certificate not being assigned hereby) all of the right of the undersigned
under the within Warrant Certificate, with respect to the number of Warrants
set forth below:
Social Security
Number Number or Other
Name of Assignees Address of Warrants Identifying Number
----------------- ------- ----------- ------------------
and does hereby irrevocably constitute and appoint ________________________,
the undersigned's attorney, to make such transfer on the books of TiVo Inc.
maintained for the purpose, with full power of substitution in the premises.
In connection with any transfer occurring within two years (or such
longer or shorter holding period required under Rule 144(k) of the Securities
Act) of the original issuance of such Warrant (unless such Warrant is being
transferred pursuant to a registration statement that has been declared
effective under the Securities Act), the undersigned confirms that such
Warrant is being transferred:
_
|_| *To TiVo Inc. or a subsidiary thereof; or
_
|_| *To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
_
|_| *To an Individual Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
_
|_| *In an offshore transaction pursuant to and in compliance
with Regulation S under the Securities Act of 1933, as
amended; or
_
|_| *Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Note
is not being transferred to an "affiliate" of the Company as defined in Rule
144 under the Securities Act of 1933, as amended (an "Affiliate"):
_
|_| *The transferee is an Affiliate of the Company.
Dated:
________________________________________
(Signature of Warrantholder)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signature Guaranteed By:
________________________________________
