<PAGE>
As filed with the Securities and Exchange Commission on August 3, 1998
Registration No. ____________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
--------------------
MACROVISION CORPORATION
[Exact name of Registrant as specified in its charter]
Delaware 77-0156161
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
--------------------
1341 Orleans Drive
Sunnyvale, California 94089
(408) 743-8600
(Address and Telephone Number of Principal Executive Offices)
Macrovision Corporation 1996 Equity Incentive Plan
(Full title of the Plan)
--------------------
Victor A. Viegas
Chief Financial Officer
Macrovision Corporation
1341 Orleans Drive
Sunnyvale, California 94089
(408) 743-8600
(Name, address and telephone number of agent for service)
Copies to:
Laird H. Simons III, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
--------------------------- -------------------------- -------------------------- -------------------------- -----------------
Title of each class of Proposed Proposed maximum Amount of
securities to be maximum offering price aggregate registration
registered Amount to be registered per share offering price fee
--------------------------- -------------------------- -------------------------- -------------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock, 400,000 (1) $ 24.5625 (2) $ 9,825,000.00 (2) $ 2,898.38
par value $0.001
--------------------------- -------------------------- -------------------------- -------------------------- -----------------
</TABLE>
(1) Additional shares available for grant and not yet subject to outstanding
options as of July 31, 1998 under the 1996 Equity Incentive Plan.
(2) Estimated as of July 31, 1998 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E of Form S-8, this Registration
Statement is being filed with the Securities and Exchange Commission (the
"Commission") to include an additional 400,000 shares of the Registrant's Common
Stock covered by the Registrant's 1996 Equity Incentive Plan, as amended through
May 18, 1998 (the "Incentive Plan"). The contents of the Registrant's
Registration Statement on Form S-8, Commission File No. 333-23213, previously
filed with the Commission on March 13, 1997, with respect to the Incentive Plan
are incorporated herein by reference.
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Commission are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997 filed on March 30, 1998 pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act), which Annual
Report contains audited financial statements for the year ended December 31,
1997; and
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1998 filed on May 15, 1998 pursuant to Section 13(a) of the
Exchange Act, and as amended on June 23, 1998.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, as filed with the Commission on January 22,
1997, including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
that this Registration Statement is filed with the Commission and prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
respective dates of filing of such documents.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (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
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. In addition, as
permitted by Section 145 of the Delaware General Corporation
2
<PAGE>
Law, the Bylaws of the Registrant provide that: (i) the Registrant is
required to indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law; (ii) the Registrant may,
in its discretion, indemnify other officers, employees and agents as set
forth in the Delaware General Corporation Law; (iii) upon receipt of an
undertaking to repay such advances if indemnification is determined to be
unavailable, the Registrant is required to advance expenses, as incurred, to
its directors and executive officers in connection with a proceeding; (iv)
the rights conferred in the Bylaws are not exclusive and the Registrant is
authorized to enter into indemnification agreements with its directors,
officers, employees and agents; (v) the Registrant may not retroactively
apply any amendment of the Bylaw provisions relating to indemnity; and (vi)
to the fullest extent permitted by the Delaware General Corporation Law, a
director or executive officer will be deemed to have acted in good faith if
his or her action is based on the records or books of account of the
Registrant or on information supplied to him or her by officers of the
Registrant in the course of their duties or on the advice of legal counsel
for the Registrant or on information or records given or reports made to the
Registrant by independent certified public accountants or appraisers or other
experts.
The Registrant enters into indemnification agreements with each of its
directors and executive officers. The indemnification agreements provide that
directors and executive officers will be indemnified and held harmless to the
fullest possible extent permitted by law including against all expenses
(including attorneys' fees), judgments, fines and settlement amounts actually
and reasonably incurred by them in any action, suit or proceeding, including any
derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of the Registrant or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Registrant.
The indemnification agreement requires a director or executive officer
to reimburse the Registrant for expenses advanced only to the extent that it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, his or her indemnification agreement or
otherwise to be indemnified for such expenses. The indemnification agreement
provides that it is not exclusive of any rights a director or executive officer
may have under the Certificate of Incorporation, Bylaws, other agreements, any
vote of the stockholders or vote of directors or otherwise.
The indemnification provision in the Bylaws, and the indemnification
agreements entered into between the Registrant and its directors and executive
officers, may be sufficiently broad to permit indemnification of the
Registrant's directors and executive officers for liabilities arising under the
Securities Act.
As authorized by the Registrant's Bylaws and approved by the
Registrant's Board of Directors, the Registrant maintains directors and officers
liability insurance.
Item 8. Exhibits.
See Exhibit Index on page 7 hereof.
3
<PAGE>
Item 9. 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 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 this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commissioner by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(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 Section 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 this
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 initial bona fide offering thereof.
4
<PAGE>
(c) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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 registrant 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 Act and
will be governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sunnyvale, State of California, on
this 3rd day of August, 1998.
MACROVISION CORPORATION
By:
/s/ John O. Ryan
----------------
John O. Ryan
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints John O. Ryan, William A. Krepick, Richard
S. Matuszak and Victor A. Viegas, and each of them, his or her attorneys-in-fact
and agents, each with full power of substitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act, this Registration
Statement was signed by the following persons in the capacities and on the dates
stated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ John O. Ryan
- -------------------- Chairman of the Board of Directors, August 3, 1998
John O. Ryan Chief Executive Officer and a Director
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Victor A. Viegas Vice President, Finance
- ----------------------- and Administration and August 3, 1998
Victor A. Viegas Chief Financial Officer
ADDITIONAL DIRECTORS:
/s/ William A. Krepick
- ----------------------- President, Chief Operating August 3, 1998
William A. Krepick Officer and Director
/s/ Richard S. Matuszak
- ----------------------- Director August 3, 1998
Richard S. Matuszak
/s/ Donna S. Birks
- ----------------------- Director August 3, 1998
Donna S. Birks
/s/ William N. Stirlen
- ----------------------- Director August 3, 1998
William N. Stirlen
/s/ Thomas Wertheimer
- ----------------------- Director August 3, 1998
Thomas Wertheimer
</TABLE>
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.01 Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.02 to Registrant's Annual Report on Form 10-KSB for
the year ending December 31, 1997).
4.02 Amended and Restated Bylaws (incorporated by reference to Exhibit 3.04 to
the Registrant's Registration Statement on Form SB-2 (No. 333-19373) filed
with the Commission on March 13, 1997).
4.03 Registrant's 1996 Equity Incentive Plan and related documents.
4.04 Registration Rights Agreement dated June 12, 1991 (incorporated by
reference to Exhibit 4.01 to the Registrant's Registration Statement on Form
SB-2 (No. 333-19373) filed with the Commission on March 13, 1997).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.1).
23.02 Consent of KPMG Peat Marwick LLP.
24.01 Power of Attorney (included on signature page hereto).
</TABLE>
7
<PAGE>
EXHIBIT 4.03
MACROVISION CORPORATION
1996 EQUITY INCENTIVE PLAN
As Adopted by the Board of Directors on December 3, 1996
Restated for Merger effective February 14, 1997
Restated for Reverse Stock Split effective February 26, 1997
Restated for Amendment Approved by Board of Directors on April 2, 1998
and by Stockholders on May 18, 1998
Section 1. Purpose; Definitions.
The name of the plan is the Macrovision Corporation 1996 Equity
Incentive Plan (the "Plan"). The purpose of the Plan is to encourage and enable
employees (including officers and Directors) of Macrovision Corporation, a
Delaware corporation (the "Company") and its Subsidiaries, non-employee members
of the Board of Directors of the Company, and those consultants and other
independent contractors who provide services to the Company and its Subsidiaries
and upon whose judgment, initiative and efforts the Company and its Subsidiaries
depend for the successful conduct of their business to acquire proprietary
interests in the Company. It is anticipated that providing such persons with a
direct stake in the Company's welfare will assure a closer identification of
their interests with those of the Company, thereby stimulating their efforts on
behalf of the Company and its Subsidiaries and strengthening their desire to
remain with the Company and its Subsidiaries.
The following terms shall be defined as set forth below:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Administrator" means the Board or the Committee.
(c) "Award" or "Awards," except where referring to a particular
category of grant under the Plan, shall include Incentive Stock Options,
Nonstatutory Stock Options, Stock Appreciation Rights, and Restricted Stock
Awards.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause," as such term relates to the termination of any person's
status as an employee or other service provider of the Company, means the
occurrence of one or more of the following: (i) such person is convicted of,
pleads guilty to, or confesses to any felony or any act of fraud,
misappropriation or embezzlement which has an immediate and materially adverse
effect on the Company or any Subsidiary, as determined by the Board in good
faith in its sole discretion, (ii) such person engages in a fraudulent act to
the material damage or prejudice of the Company or any Subsidiary or in conduct
or activities materially damaging to the property, business or reputation of the
Company or any Subsidiary, all as determined by the Board in good faith in its
sole discretion, (iii) any material act or omission by such person involving
malfeasance or negligence in the performance of such person's duties to the
Company or any Subsidiary to the material detriment of the Company or any
Subsidiary, as determined by the Board in good faith in its sole discretion,
which has not been corrected by such person to the satisfaction of the Board
within 30 days after written notice from the Company of any such act or
omission, (iv) failure by such person to comply in any material respect with the
terms of his employment agreement, if any, or any written policies or directives
of the Board as determined by the Board in good faith in its sole discretion,
which has not been corrected by such person to the satisfaction of the Board
within 30 days after written notice from the Company of such failure, or (v)
material breach by such person of any other agreement with the Company, as
determined by the Board in good faith in its sole discretion.
(f) "Code" means the Internal Revenue Code of 1986, as amended, and any
successor tax laws, and related rules, regulations and interpretations.
(g) "Committee" means a committee of two or more Independent Directors
appointed by the Board to administer the Plan.
<PAGE>
(h) "Director" means a member of the Board.
(i) "Disability" means an individual's inability to perform his normal
required services for the Company and its Subsidiaries for a period of six
consecutive months by reason of the individual's mental or physical disability,
as determined by the Administrator in good faith in its sole discretion.
(j) "Fair Market Value" of the Stock on any given date under the Plan
shall be determined as follows:
(i) If the Stock is at the time listed or admitted to trading
on any national stock exchange, then the fair market value shall be the
closing selling price per share of the Stock on the day next preceding
the date of determination on the stock exchange determined by the
Administrator to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape transactions on such
exchange. If there is no reported sale of the Stock on such exchange on
the day next preceding the date of determination, then the fair market
value shall be the closing price on the exchange on the last preceding
date for which such quotation exists.
(ii) If the Stock is not at the time listed or admitted to
trading on any national exchange but is traded on the NASDAQ National
Market System, the fair market value shall be the closing selling price
per share of the Stock on the day next preceding the date of
determination, as such price is reported by the National Association of
Securities Dealers, Inc. through the NASDAQ National Market System or
through any successor system. If there is no reported closing selling
price for the Stock on the day next preceding the date of
determination, then the fair market value shall be the closing selling
price on the last preceding date for which such quotation exists.
(iii) If the Stock is at the time neither listed nor admitted
to trading on any stock exchange nor traded in the over-the-counter
market, then the fair market value shall be determined by the
Administrator after taking into account such factors as the
Administrator shall deem appropriate.
(k) "Incentive Stock Option" means any Stock Option designated and
qualified as an "incentive stock option" as defined in Section 422 of the Code.
(l) "Independent Director" means a member of the Board who is not also
an employee of the Company or any Subsidiary.
(m) "IPO Date" means the effective date of the Registration Statement
on Form SB-2 for the initial public offering of the Stock.
(n) "Nonstatutory Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(o) "Option" or "Stock Option" means any option to purchase shares of
Stock granted pursuant to Section 5.
(p) "Restricted Stock Award" means any Award granted pursuant to
Section 7.
(q) "Retirement" means an employee's termination of employment with the
Company and its Subsidiaries after attainment of age 65 or attainment of age 55
and completion of 10 years of employment.
(r) "Stock" means the Common Stock, par value $.001 per share, of the
Company, subject to adjustments pursuant to Section 3.
(s) "Stock Appreciation Right" means any Award granted pursuant to
Section 6.
(t) "Subsidiary" means any corporation or other entity (other than the
Company) in any unbroken chain of corporations or other entities, beginning with
the Company if each of the corporations or entities (other than the last
corporation or entity in the unbroken chain) owns stock or other interests
possessing 50% or more of the economic interest or the total combined voting
power of all classes of stock or other interests in one of the other
2
<PAGE>
corporations or entities in the chain.
Section 2. Administration of Plan; Authority to Select Participants and
Determine Awards
(a) Powers of Administrator. The Administrator shall have the power and
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select those employees (including officers and
Directors) of the Company and its Subsidiaries, non-employee Directors,
and consultants and other independent contractors in service to the
Company and its Subsidiaries to whom Awards may from time to time be
granted;
(ii) to determine the time or times of grant, and the extent,
if any, of Incentive Stock Options, Nonstatutory Stock Options, Stock
Appreciation Rights, and Restricted Stock Awards, or any combination of
the foregoing, granted to any one or more participants;
(iii) to determine the number of shares of Stock to be covered
by any Award;
(iv) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the terms of
the Plan, of any Award, which terms and conditions may differ among
individual Awards and participants, and to approve the form of written
instruments evidencing the Awards;
(v) to accelerate at any time the exercisability or vesting of
all or any portion of any Award;
(vi) subject to the provisions of Section 5(a)(ii), to extend
at any time the period in which Stock Options may be exercised;
(vii) to determine at any time whether, to what extent, and
under what circumstances Stock and other amounts payable with respect
to an Award shall be deferred either automatically or at the election
of the participant and whether and to what extent the Company shall pay
or credit amounts constituting interest (at rates determined by the
Administrator) or dividends or deemed dividends on such deferrals; and
(viii) at any time to adopt, alter and repeal such rules,
guidelines and practices for administration of the Plan and for its own
acts and proceedings as it shall deem advisable; to interpret the terms
and provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in
connection with the Plan; and otherwise to supervise the administration
of the Plan.
All decisions and interpretations of the Administrator shall be binding
on all persons, including the Company and Plan participants.
(b) Delegation of Authority to Grant Awards. The Administrator, in its
discretion, may delegate to the Chief Executive Officer of the Company all or
part of the Administrator's authority and duties with respect to Awards,
including the granting thereof, to individuals who are not subject to the
reporting and other provisions of Section 16 of the Act or "covered employees"
within the meaning of Section 162(m) of the Code. The Administrator may revoke
or amend the terms of a delegation at any time but such action shall not
invalidate any prior actions of the Administrator's delegate or delegates that
were consistent with the terms of the Plan.
Section 3. Stock Issuable Under the Plan; Mergers; Substitution
(a) Stock Issuable. The maximum number of shares of Stock reserved and
available for the grant of Awards under the Plan shall be the sum of seven
hundred thousand (700,000) shares (which number is after taking into account the
reverse split of the Stock effected February 26, 1997), plus the number of
shares of Stock (which number is after taking into account the reverse split of
the Stock effected February 26, 1997) remaining under the Stock Option Plan of
Macrovision Corporation, a California corporation, as adopted effective
September 9, 1988, amended and restated February 6, 1992, and assumed by the
Company in connection with the merger of
3
<PAGE>
Macrovision Corporation, a California corporation into the Company effective
February 14, 1997 (the "Prior Plan"), that are not the subject of any stock
options outstanding on the IPO Date or exercised prior to the IPO Date, plus the
number of shares of Stock (which number is after taking into account the reverse
split of the Stock effected February 26, 1997) that are returned to the Prior
Plan as a result of the expiration, forfeiture, cancellation, reacquisition by
the Company, satisfaction without the issuance of Stock or other termination
(other than by exercise) after the IPO Date of any stock options outstanding on
the IPO Date. For purposes of this limitation, the shares of Stock underlying
any Awards which expire or which are forfeited, canceled, reacquired by the
Company, satisfied without the issuance of Stock or otherwise terminated (other
than by exercise) shall be added back to the shares of Stock available for
issuance under the Plan. Subject to such overall limitation, shares of Stock may
be issued up to such maximum number pursuant to any type or types of Award;
provided, however, that Stock Options or Stock Appreciation Rights with respect
to no more than one hundred fifty thousand (150,000) shares of Stock (which
number is after taking into account the reverse split of the Stock effected
February 26, 1997) may be granted to any one individual participant during any
one calendar year period. The shares available for issuance under the Plan may
be authorized but unissued shares of Stock or shares of Stock reacquired by the
Company. Upon the exercise of a Stock Appreciation Right settled in shares of
Stock, the right to purchase an equal number of shares of Stock covered by a
related Stock Option, if any, shall be deemed to have been surrendered and will
no longer be exercisable, and said number of shares of Stock shall no longer be
available under the Plan.
(b) Recapitalizations. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, the outstanding shares of
Stock are increased or decreased or are exchanged for a different number or kind
of shares or other securities of the Company, or additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Stock or other securities, the
Administrator shall make an appropriate or proportionate adjustment in (i) the
maximum number of shares reserved for issuance under the Plan, (ii) the number
of Stock Options or Stock Appreciation Rights that can be granted to any one
individual participant, (iii) the number and kind of shares or other securities
subject to any then outstanding Awards under the Plan, and (iv) the price for
each share subject to any then outstanding Stock Options and Stock Appreciation
Rights under the Plan, without changing the aggregate exercise price (i.e., the
exercise price multiplied by the number of Stock Options and Stock Appreciation
Rights) as to which such Stock Options and Stock Appreciation Rights remain
exercisable. The adjustment by the Administrator shall be final, binding and
conclusive. No fractional shares of Stock shall be issued under the Plan
resulting from any such adjustment, but the Administrator in its discretion may
make a cash payment in lieu of fractional shares.
(c) Mergers, etc. In the event of (i) a dissolution or liquidation of
the Company; (ii) a merger or consolidation in which the Company is the not the
surviving corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the stockholders of
the Company or their relative stock holdings and the Stock Options and Stock
Appreciation Rights granted under this Plan are assumed, converted or replaced
by the successor corporation, which assumption will be binding on all
optionees); (iii) a merger in which the Company is the surviving corporation but
after which the stockholders of the Company (other than any stockholder which
merges (or which owns or controls another corporation which merges) with the
Company in such merger) cease to own their shares or other equity interests in
the Company; (iv) the sale of substantially all of the assets of the Company; or
(v) any other transaction which qualifies as a "corporate transaction" under
Section 424(a) of the Internal Revenue Code of 1986, as amended, wherein the
stockholders of the Company give up all of their equity interest in the Company
(except for the acquisition, sale or transfer of all or substantially all of the
outstanding shares of the Company from or by the stockholders of the Company),
the Board, or the board of directors of any corporation assuming the obligations
of the Company, may, in its discretion, take any one or more of the following
actions, as to outstanding Stock Options and Stock Appreciation Rights: (I)
provide that such Stock Options shall be assumed or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), (II) upon written notice to the optionees, provide that all
unexercised Stock Options and Stock Appreciation Rights will terminate
immediately prior to the consummation of such transaction unless exercised by
the optionee within a specified period following the date of such notice, and/or
(III) in the event of a business combination under the terms of which holders of
the Stock of the Company will receive upon consummation thereof a cash payment
for each share surrendered in the business combination, make or provide for a
cash payment to the optionees, equal to the difference between (A) the value (as
determined by the Administrator) of the consideration
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payable per share of Stock pursuant to the business combination (the "Merger
Price") multiplied by the number of shares of Stock subject to such outstanding
Stock Options and Stock Appreciation Rights (to the extent then exercisable at
prices not in excess of the Merger Price) and (B) the aggregate exercise price
of all such outstanding Stock Options and Stock Appreciation Rights, in exchange
for the termination of such Stock Options and Stock Appreciation Rights.
(d) Substitute Awards. The Administrator may grant Awards under the
Plan in substitution for stock and stock based awards held by employees of
another corporation who become employees of the Company or a Subsidiary as the
result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by the Company or a Subsidiary of
property or stock of the employing corporation. The Administrator may direct
that the substitute awards be granted on such terms and conditions as the
Administrator considers appropriate in the circumstances.
Section 4. Eligibility
Participants in the Plan shall be such full-time or part-time employees
(including officers and Directors) of the Company and its Subsidiaries,
non-employee Directors, and consultants and other independent contractors in
service to the Company and its Subsidiaries as the Administrator in its sole
discretion shall select from time to time.
Section 5. Stock Options
Any Stock Option granted under the Plan shall be in such form as the
Administrator may from time to time approve. Stock Options granted under the
Plan may be either Incentive Stock Options or Nonstatutory Stock Options.
Incentive Stock Options may be granted only to employees of the Company or any
Subsidiary that is a "subsidiary corporation" within the meaning of Section
424(f) of the Code. To the extent that any Option does not qualify as an
Incentive Stock Option, it shall be a Nonstatutory Stock Option.
No Incentive Stock Option shall be granted under the Plan after
November 30, 2006.
(a) Terms and Conditions of Stock Options. The Administrator in its
discretion may grant Stock Options subject to the following terms and conditions
and such additional terms and conditions, not inconsistent with the terms of the
Plan, as the Administrator shall deem desirable:
(i) Exercise Price. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall
be determined by the Administrator at the time of grant, but shall not
be less than 100% of the Fair Market Value of a share of Stock on the
date of grant in the case of Incentive Stock Options, or less than 85%
of the Fair Market Value of a share of Stock on the date of grant in
the case of Nonstatutory Stock Options. If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of
the Code) more than 10% of the combined voting power of all classes of
stock of the Company or of any "parent or subsidiary corporation" of
the Company (within the meaning of Section 424(f) of the Code) and an
Incentive Stock Option is granted to such employee, the exercise price
per share for the Stock covered by such Incentive Stock Option shall be
not less than 110% of the Fair Market Value of a share of Stock on the
grant date.
(ii) Option Term. The term of each Stock Option shall be fixed
by the Administrator, but no Incentive Stock Option shall be
exercisable more than ten years after the date the Option is granted.
If an employee owns or is deemed to own (by reason of the attribution
rules of Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of stock of the Company or of any "parent
or subsidiary corporation" of the Company (within the meaning of
Section 424(f) of the Code) and an Incentive Stock Option is granted to
such employee, the term of such Option shall expire no more than five
years after the date of grant.
(iii) Exercisability; Rights of a Stockholder. Stock Options
shall become exercisable at such time or times, whether or not in
installments, as shall be determined by the Administrator at the time
of grant. The Administrator may at any time accelerate the
exercisability of all or any portion of any Stock Option. An optionee
shall have the rights of a stockholder only as to shares acquired upon
the exercise of a
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Stock Option and not as to unexercised Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in
whole or in part, by giving written notice of exercise to the Company
specifying the number of shares to be purchased. Payment of the
purchase price shall be made in full concurrently with such exercise by
any one of the following methods: (A) in cash; (B) if and to the extent
the instrument evidencing the Option so provides and if the Company is
not then prohibited from purchasing or acquiring shares of Stock, with
shares of Stock that have been held by the optionee for the requisite
period necessary to avoid a charge to the Company's earnings for
financial reporting purposes, delivered in lieu of cash and valued at
their Fair Market Value on the date of exercise; (C) through a "same
day sale" commitment from the optionee and a broker-dealer that is a
member of the National Association of Securities Dealers, Inc. (the
"NASD Dealer") whereby the optionee irrevocably elects to exercise the
Option and to sell a portion of the shares so purchased to pay for the
exercise price, and whereby the NASD Dealer irrevocably commits upon
receipt of such shares to forward the exercise price directly to the
Company; (D) through a "margin" commitment from the optionee and a NASD
Dealer whereby the optionee irrevocably elects to exercise the Option
and to pledge the shares so purchased to the NASD Dealer in a margin
account as security for a loan from the NASD Dealer in the amount of
the exercise price , and whereby the NASD Dealer irrevocably commits
upon receipt of such shares to forward the exercise price directly to
the Company; or (E) any combination of the foregoing. The delivery of
certificates representing the shares of Stock to be purchased pursuant
to the exercise of a Stock Option will be contingent upon receipt from
the optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase
price for such shares and the fulfillment of any other requirements
contained in the Stock Option or applicable provisions of laws.
(v) Termination by Reason of Death. Any Stock Option held by
an optionee whose employment by (or other business relationship with)
the Company and its Subsidiaries is terminated by reason of the
optionee's death may thereafter be exercised, to the extent it was
exercisable by the optionee on the date of the optionee's death, by the
legal representative of the optionee's estate or by any other person
who acquires the right to exercise the option by reason of such death
under the optionee's will or the laws of intestate succession, for a
period of 12 months (or such other period as the Administrator shall
specify in the Stock Option) from the date of death, but not later than
the expiration of the stated term of the Option, if earlier.
(vi) Termination by Reason of Disability. Any Stock Option
held by an optionee whose employment by (or other business relationship
with) the Company and its Subsidiaries is terminated by reason of
Disability may thereafter be exercised, to the extent it was
exercisable on the date of such termination, for a period of 12 months
(or such other period as the Administrator shall specify in the Stock
Option) from the date of such termination of employment (or business
relationship), but not later than the expiration of the stated term of
the Option, if earlier. The Administrator shall have sole authority and
discretion to determine whether a participant's employment (or business
relationship) has been terminated by reason of Disability. The
Administrator may specify in any Stock Option that the death of an
optionee during the period provided in this Section 5(a)(vi) for the
exercise of the Option shall extend such period for a period ending not
later than 12 months following the date of the optionee's death,
subject to termination on the expiration of the stated term of the
Option, if earlier.
(vii) Termination by Reason of Retirement. Any Stock Option
held by an optionee whose employment by the Company and its
Subsidiaries is terminated by reason of Retirement may thereafter be
exercised, to the extent it was exercisable on the date of such
termination, for a period of 12 months (or such other period as the
Administrator shall specify) from the date of such termination of
employment, but not later than the expiration of the stated term of the
Option, if earlier. The Administrator may specify in any Stock Option
that the death of an optionee during the period provided in this
Section 5(a)(vii) for the exercise of the Option shall extend such
period for a period ending not later than 12 months following the date
of the optionee's death, subject to termination on the expiration of
the stated term of the Option, if earlier.
(viii) Termination for Cause. If any optionee's employment by
(or business relationship with)
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the Company and its Subsidiaries is terminated for Cause, any Stock
Option held by such optionee, including any Stock Option that is
exercisable at the time of such termination, shall immediately
terminate and be of no further force and effect; provided, however,
that the Administrator may, in its sole discretion, provide in any
Stock Option that such Stock Option can be exercised, to the extent it
was exercisable on the date of such termination, for a period of up to
30 days from the date of termination of employment (or business
relationship), but not later than the expiration of the stated term of
the Option, if earlier.
(ix) Other Termination. Unless otherwise determined by the
Administrator, if an optionee's employment by (or business relationship
with) the Company and its Subsidiaries terminates for any reason other
than death, Disability, Retirement, or for Cause, any Stock Option held
by such optionee may thereafter be exercised, to the extent it was
exercisable on the date of such termination, for three months (or such
other period not to exceed 60 months as the Administrator shall
specify) from the date of termination of employment (or business
relationship), but not later than the expiration of the stated term of
the Option, if earlier.
(x) Annual Limit on Incentive Stock Options. To the extent
required for "incentive stock option" treatment under Section 422 of
the Code, the aggregate Fair Market Value (determined as of the time of
grant) of the shares of Stock with respect to which Incentive Stock
Options granted under this Plan and any other plan of the Company or
its parent and subsidiary corporations become exercisable for the first
time by an optionee during any calendar year shall not exceed $100,000.
To the extent that any Stock Option exceeds this limit, it shall
constitute a Nonstatutory Stock Option.
(b) Non-Transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee. Notwithstanding the foregoing, the
Administrator may provide in an option agreement evidencing a Nonstatutory Stock
Option that the optionee may transfer, without consideration for the transfer,
such Nonstatutory Stock Option to members of his immediate family, to trusts for
the benefit of such family members, to partnerships in which such family members
are the only partners, or to charitable organizations, provided that the
transferee agrees in writing with the Company to be bound by all of the terms
and conditions of the Plan and the applicable option agreement.
(c) Form of Settlement. Shares of Stock issued upon exercise of a Stock
Option shall be free of all restrictions under the Plan, except as otherwise
provided in the Plan.
Section 6. Stock Appreciation Rights.
(a) Nature of Stock Appreciation Rights. A Stock Appreciation Right is
an award entitling the recipient to receive an amount in cash or shares of Stock
or a combination thereof having a value equal to the excess of the Fair Market
Value of a share of Stock on the date of exercise over the per share exercise
price of the Stock Appreciation Right set by the Administrator at the time of
grant, which exercise price shall be not less than the Fair Market Value of a
share of Stock on the date of grant (or not less than the Option exercise price
per share, if the Stock Appreciation Right was granted in tandem with a Stock
Option) multiplied by the number of shares of Stock with respect to which the
Stock Appreciation Right shall have been exercised, with the Administrator
having the right to determine the form of payment.
(b) Grant and Exercise of Stock Appreciation Rights. Stock Appreciation
Rights may be granted by the Administrator in tandem with, or independently of,
any Stock Option granted pursuant to Section 5 of the Plan. In the case of a
Stock Appreciation Right granted in tandem with a Nonstatutory Stock Option,
such Stock Appreciation Right may be granted either at or after the time of the
grant of such Option. In the case of a Stock Appreciation Right granted in
tandem with an Incentive Stock Option, such Stock Appreciation Right may be
granted only at the time of the grant of the Option.
(c) Terms and Conditions of Stock Appreciation Rights. Stock
Appreciation Rights shall be subject to such terms and conditions as shall be
determined from time to time by the Administrator, subject to the following:
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(i) Stock Appreciation Rights granted in tandem with Options
shall be exercisable at such time or times and to the extent that the
related Stock Options shall be exercisable. A Stock Appreciation Right
or applicable portion thereof granted in tandem with a Stock Option
shall terminate and no longer be exercisable upon the termination or
exercise of the related Option.
(ii) Upon exercise of a Stock Appreciation Right, the
applicable portion of any related Option shall be surrendered.
(iii) Stock Appreciation Rights granted in tandem with an
Option shall be transferable only when and to the extent that the
underlying Option would be transferable. Stock Appreciation Rights not
granted in tandem with an Option shall not be transferable otherwise
than by will or the laws of descent or distribution. All Stock
Appreciation Rights shall be exercisable during the participant's
lifetime only by the participant or the participant's legal
representative.
Section 7. Restricted Stock Awards
(a) Nature of Restricted Stock Awards. A Restricted Stock Award is an
Award entitling the recipient to acquire shares of Stock subject to such
restrictions and conditions as the Administrator may determine at the time of
grant ("Restricted Stock"), at a purchase price and for such consideration as
the Administrator may determine, which price shall not be less than 85% of the
Fair Market Value of the Stock on the date of issuance. Such Restricted Stock
issuances may, at the discretion of the Administrator, be based on continuing
employment (or other business relationship) with the Company and its
Subsidiaries and/or achievement of pre-established performance goals and
objectives. Restricted Stock Awards shall be limited to a total of one hundred
twenty-five thousand (125,000) shares of Stock (which number is after taking
into account the reverse split of the Stock effected February 26, 1997).
(b) Rights as a Stockholder. Upon execution of a written instrument
setting forth the Restricted Stock Award and paying any applicable purchase
price, a participant shall have the rights of a stockholder with respect to the
voting of the Restricted Stock, subject to such conditions contained in the
written instrument evidencing the Restricted Stock Award. Unless the
Administrator shall otherwise determine, certificates evidencing the Restricted
Stock shall remain in the possession of the Company or of a third party escrow
holder until such Restricted Stock is vested as provided in Section 7(d) below.
(c) Restrictions. Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein or in the written instrument evidencing the
Restricted Stock Award. If a participant's employment (or other business
relationship) with the Company and its Subsidiaries terminates for any reason,
the Company shall have the right to repurchase from the participant or the
participant's legal representative at their purchase price the Restricted Stock
with respect to which conditions have not lapsed.
(d) Vesting of Restricted Stock. The Administrator at the time of grant
shall specify the date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which the
non-transferability of the Restricted Stock and the Company's right of
repurchase shall lapse. Subsequent to such date or dates and/or the attainment
of such pre-established performance goals, objectives and other conditions, the
shares on which all restrictions have lapsed shall no longer be Restricted Stock
and shall be "vested." Except as may otherwise be provided by the Administrator,
a participant's rights in any shares of Restricted Stock that have not vested
shall terminate automatically upon the participant's termination of employment
(or other business relationship) with the Company and its Subsidiaries and such
shares shall be subject to the Company's right of repurchase as provided in
Section 7(c) above.
(e) Waiver, Deferral and Reinvestment of Dividends. The written
instrument evidencing the Restricted Stock Award may require or permit the
immediate payment, waiver, deferral or investment of dividends paid on the
Restricted Stock.
Section 8. Tax Withholding
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(a) Payment By Participant. Each participant shall, no later than the
date as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Administrator regarding payment of, any Federal, state, or
local taxes of any kind required by law to be withheld with respect to such
income. The Company and its Subsidiaries shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the participant.
(b) Payment in Stock. Subject to approval by the Administrator, a
participant may elect to have such tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the Company to withhold from shares of
Stock to be issued pursuant to any Award a number of shares with an aggregate
Fair Market Value (as of the date the withholding is effected) that would
satisfy the withholding amount due, or (ii) transferring to the Company shares
of Stock owned by the participant with an aggregate Fair Market Value (as of the
date the withholding is effected) that would satisfy the withholding amount due.
Section 9. Transfer, Leave of Absence, Etc.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or
from the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or
for any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the
Administrator otherwise so provides in writing.
Section 10. Amendments and Termination
The Board may, at any time, amend or discontinue the Plan and the
Administrator may, at any time, amend or cancel any outstanding Award (or
provide substitute Awards at the same or reduced exercise or purchase price or
with no exercise or purchase price in a manner not inconsistent with the terms
of the Plan, but such price, if any, must satisfy the requirements which would
apply to the substitute or amended Award if it were then initially granted under
this Plan) for the purpose of satisfying changes in law or for any other lawful
purpose, but no such action shall adversely affect rights under any outstanding
Award without the holder's consent. If and to the extent determined by the
Administrator to be required to ensure that Incentive Stock Options granted
under the Plan are qualified under Section 422 of the Code, Plan amendments
shall be subject to approval by the Company's stockholders entitled to vote at a
meeting of stockholders.
Section 11. Status of Plan
With respect to the portion of any Award which has not been exercised
and any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Administrator shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Administrator may authorize the creation of trusts or other arrangements to meet
the Company's obligations to deliver Stock or make payments with respect to
Awards hereunder, provided that the existence of such trusts or other
arrangements is consistent with the foregoing sentence.
Section 12. General Provisions
(a) No Distribution; Compliance With Legal Requirements. The
Administrator may require each person acquiring Stock pursuant to an Award to
represent to and agree with the Company in writing that such person is acquiring
the shares without a view to distribution thereof. No shares of Stock shall be
issued pursuant to an Award until all applicable securities law and other legal
and stock exchange or similar requirements have been satisfied. The
Administrator may require the placing of such stop-orders and restrictive
legends on certificates for Stock and Awards as it considers appropriate.
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(b) Delivery Of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have mailed such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards do not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
Section 13. Effective Date of Plan
This Plan shall become effective when adopted by the Company's Board of
Directors, but no Award shall be granted under the Plan prior to the IPO Date,
and no Award granted under the Plan shall become exercisable and no shares shall
be issuable under the Plan unless the Plan shall have been approved by the
Company's stockholders. If such stockholder approval is not obtained within
twelve (12) months of the Board's approval, then all Awards previously granted
under the Plan shall terminate, and no further Awards shall be granted or
issued. Subject to such approval by the stockholders, Stock Options and other
Awards may be granted hereunder on and after the IPO Date.
Section 14. Governing Law
This Plan shall be governed by California law except to the extent such
law is preempted by federal law.
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EXHIBIT 5.01
August 3, 1998
Macrovision Corporation
1341 Orleans Drive
Sunnyvale, California 94089
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about August 3, 1998 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 400,000 shares of your Common Stock (the "Stock"), subject to
issuance by you upon the exercise of stock options granted by you under your
1996 Equity Incentive Plan, as amended (the "1996 Plan"). In rendering this
opinion, we have examined the following:
(1) Your registration statement on Form S-8 (File Number
333-23213) filed with and declared effective by the Commission
on March 13, 1997, together with the Exhibits filed as a part
thereof, including without limitation, the 1996 Plans and
related stock option grant and exercise agreements;
(2) your registration statement on Form 8-A (File Number
000-22023) filed with the Commission on January 22, 1997,
together with the order of effectiveness issued by the
Commission therefor on March 12, 1997;
(3) the Registration Statement, together with the Exhibits filed
as a part thereof;
(4) the Prospectus prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and the minute books of your predecessor,
Macrovision Corporation, a California corporation
("Macrovision California"), that are in our possession;
(6) the stock records for both you and Macrovision California that
you have provided to us (consisting of a list of stockholders
issued by your transfer agent, BankBoston, N.A. and a list of
option and warrant holders respecting your capital and of any
rights to purchase capital stock that was prepared by you and
dated July 28, 1998); and
(7) a Management Certificate addressed to us and dated of even
date herewith executed by the Company containing certain
factual and other representations.
We have also confirmed the continued effectiveness of the Company's
registration under the Securities Exchange Act of 1934, as amended, by telephone
call to the offices of the Commission and have confirmed your eligibility to use
Form S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not
<PAGE>
Macrovision Corporation
July 31, 1998
Page 2
accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the laws
of any jurisdiction other than the existing laws of the United States of America
and the State of California and (without reference to case law or secondary
sources) the existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the 400,000 shares
of Stock that may be issued and sold by you upon the exercise of stock
options granted or to be granted under the 1996 Plan, when issued and sold in
accordance with the applicable stock option agreements to be entered into
thereunder, in the manner referred to in the relevant Prospectus associated
with the Registration Statement, and assuming full payment of the applicable
exercise price for such options, will be validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
<PAGE>
EXHIBIT 23.02
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Macrovision Corporation:
We consent to incorporation herein by reference of our report dated
February 6, 1998 relating to the consolidated balance sheets of Macrovision
Corporation and subsidiaries as of December 31, 1997 and 1996, and the
related consolidated statements of income, stockholders' equity, and cash
flows for the years then ended, which report appears in the December 31, 1997
annual report on Form 10-KSB of Macrovision Corporation.
Mountain View, California KPMG Peat Marwick LLP
July 31, 1998
