Exhibit 16
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TIVO INC.
No. FYTW-17 Unit CUSIP No. 888706 40 5
Warrant CUSIP No. 888706 14 0
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
APPEARING ON 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 APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER IS AN EXHIBIT TO THE 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.
EXCEPT AS DESCRIBED IN THE NEXT SENTENCE, EACH WARRANT REPRESENTED BY THIS
CERTIFICATE MUST TRADE AS A UNIT WITH ONE ONE-YEAR 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 ONE-YEAR WARRANT FOR EACH WARRANT BEING TRANSFERRED OR
EXCHANGED. UPON THE EXERCISE OF THE ONE-YEAR WARRANTS TO WHICH ALL OR A
PORTION OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE RELATE, SUCH WARRANTS
(OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS
EXERCISED) MAY BE TRANSFERRED SEPARATELY AND THIS LEGEND SHALL BE REMOVED
WITH RESPECT TO SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE
NUMBER OF ONE-YEAR WARRANTS EXERCISED).
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, 2006, and each of which entitles the registered owner thereof (the
"Warrantholder") to purchase at any time prior to the expiration hereof from
TIVO INC., a Delaware corporation (the "Company"), 0.33 of one share of
Common Stock (the "Common Stock"), $0.001 par value per share, of the Company
at the purchase price of $7.85 per share of Common Stock (the "Exercise
Price"), subject to adjustment as provided in the Warrant Agreement
hereinafter referred to.
The Warrants evidenced by this Warrant are issued under and in
accordance with the Warrant Agreement, dated as of August 28, 2001 (the
"Warrant Agreement"), between the Company and The Bank of New York, as
warrant agent (the "Warrant Agent"), and the Registration Rights Agreement,
dated of even date therewith (the "Registration Rights Agreement"), among the
Company and the initial purchasers of the Warrants, and are subject to the
terms and provisions contained therein, to all of which terms and provisions
the holder of this Warrant consents by acceptance of this Warrant and which
Warrant Agreement and Registration Rights Agreement are hereby incorporated
by reference in and made a part of this Warrant.
Until the Separation Date, any Warrants represented by this
Certificate shall be transferable or exchangeable only as a Unit with a like
number of One-Year Warrants (as defined in the Warrant Agreement). The
Separation Date, with respect to any Warrant shall be the date upon which
such One-Year Warrant with which such Warrant comprises a Unit shall have
been exercised in accordance with its terms and the terms of the One-Year
Warrant Agreement (as defined in the Warrant Agreement).
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Reference is hereby made to the Warrant Agreement and the
Registration Rights Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Company and the Warrantholders. The summary of the terms of the Warrant
Agreement and the Registration Rights Agreement contained in this Warrant is
qualified in its entirety by express reference to such agreements. All
capitalized terms used but not defined in this Warrant shall have the
meanings assigned to them in the Warrant Agreement.
As provided in the Warrant Agreement, and subject to the terms and
conditions set forth therein including early termination of the Warrants, the
Warrants shall be exercisable, unless earlier terminated as described below,
at any time during the period commencing on the Separation Date and ending at
5:00 p.m., New York time, on August 28, 2006 (the "Expiration Date"). This
Warrant may be exercised on any Business Day on or prior to close of business
on the Expiration Date.
Any Warrant not exercised before the close of business on the
Expiration Date, or the Termination Date, as the case may be, shall become
void, and all rights of the holder under the Warrant Certificate evidencing
such Warrant and under this Agreement shall cease.
With respect to any Warrant, if at any time prior to the Expiration
Date, the One-Year Warrant with which such Warrant comprises a Unit expires
or terminates pursuant to the terms of the One-Year Warrant Agreement without
having been exercised pursuant to the terms thereof (the date of such
expiration or termination, the "Termination Date") then such Warrant shall
terminate if not exercised before 5:00 p.m., New York City time, on the
Termination Date.
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 Sock 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
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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 0.33
of one share (subject to adjustment as set forth in the Warrant Agreement) of
Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised,
and herewith
makes payment of $__________ (such payment being in cash or by
certified or official bank check payable to the order or at the direction of
TiVo Inc.),
tenders $_______ principal amount of the Company's 7% Convertible
Senior Notes due 2006, plus payment of $__________ (such payment being in
cash or by certified or official bank check payable to the order or at the
direction of TiVo Inc.),
elects to make a "Cashless Exercise" of such Warrants as provided in
Section 10(b) of the Warrant Agreement,
all at the exercise price and on the terms and conditions specified in the
Warrant and the Warrant Agreement therein referred to, and surrenders all of
its right, title and interest in the number of Warrants exercised herein to
TiVo Inc., and directs that the shares of Common Stock or other securities or
property deliverable upon the exercise of such Warrants, and any Warrant
Certificate or interests in the Warrant representing unexercised Warrants, be
registered or placed in the name and at the address specified below and
delivered thereto.
Dated:
________________________________________
(Signature of Warrantholder)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signature Guaranteed By:
________________________________________
This form must be delivered to the Warrant Agent at the Corporate Office,
which initially shall be 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:
________________________________________