<PAGE>
As filed with the Securities and Exchange Commission on January 3, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TIVO INC.
(Exact name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Delaware 77-0463167
<CAPTION>
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
2160 Gold Street, PO Box 2160
Alviso, CA 95002
(408) 519-9100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------
Michael Ramsay
Chief Executive Officer
TiVo Inc.
2160 Gold Street, PO Box 2160
Alviso, CA 95002
(408) 519-9100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
Alan C. Mendelson, Esq.
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
(415) 328-4600
and
Laura L. Gabriel, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
--------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum
Aggregate Amount of
Title of Each Class of Offering Price Registration
Securities to be Registered (1)(2)(3)(4) Fee
----------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt securities(5).................................
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Preferred stock, $0.001 par value(6)...............
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Common stock, $0.001 par value(7)..................
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Equity warrants....................................
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Debt warrants......................................
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Total............................................. $75,000,000 $18,750
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</TABLE>
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(1) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities Act
of 1933.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or composite currencies. The proposed maximum offering price per unit will
be determined from time to time by the registrant in connection with the
issuance of the securities registered hereby.
(3) Estimated solely for the purpose of calculating the registration fee. In no
event will the aggregate maximum offering price of all securities issued
under this registration statement exceed $75,000,000 or the equivalent
thereof in one or more foreign currencies or composite currencies or, if
any debt securities are issued with original issue discount, such greater
amount as shall result in proceeds of $75,000,000 to the registrant.
(4) With respect to debt securities, excluding accrued interest and accrued
amortization of discount, if any, to the date of delivery.
(5) Debt securities may be issued in primary offerings, upon exercise of
warrants registered hereby and/or upon conversion of another series of debt
securities registered hereby.
(6) Shares of preferred stock may be issued in primary offerings, upon
conversion of debt securities and/or another series of preferred securities
and/ or other securities registered hereby, and/or upon exercise of
warrants registered hereby.
(7) Shares of common stock may be issued in primary offerings, upon conversion
of debt securities and/or preferred stock registered hereby, and/or upon
exercise of warrants registered hereby.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information contained in this prospectus is not complete and may be +
+changed. We may not sell these securities until the registration +
+statement filed with the Securities and Exchange Commission is effective. +
+This prospectus is not an offer to sell these securities and it is not +
+soliciting an offer to buy these securities in any state where the offer or +
+sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 3, 2001
PROSPECTUS
$75,000,000
TIVO INC.
Debt Securities
Preferred Stock
Common Stock
Equity Warrants
Debt Warrants
We may, from time to time, sell up to $75,000,000 in the aggregate of:
. our secured or unsecured debt securities, in one or more series, which
may be either senior, senior subordinated or subordinated debt
securities;
. shares of our preferred stock, par value $0.001 per share, in one or more
series;
. shares of our common stock, par value $0.001 per share;
. warrants to purchase our preferred stock or our common stock;
. warrants to purchase our debt securities; or
. any combination of the foregoing.
We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
See "Risk Factors" beginning on page 2 for a discussion of material risks
that you should consider before you invest in our securities being sold with
this prospectus.
Our common stock is traded on the Nasdaq National Market under the symbol
"TIVO." On January 2, 2001, the last reported sale price for our common stock
on the Nasdaq National Market was $6 3/8 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 2001.
<PAGE>
We have not authorized any dealer, salesperson or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor does this prospectus and the accompanying
prospectus supplement constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. You should
not assume that the information contained in this prospectus and the
accompanying prospectus supplement is correct on any date after their
respective dates, even though this prospectus or a prospectus supplement is
delivered or securities are sold on a later date.
----------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS......................... 1
AVAILABLE INFORMATION..................................................... 1
INCORPORATION BY REFERENCE................................................ 2
THE COMPANY............................................................... 2
RISK FACTORS.............................................................. 3
USE OF PROCEEDS........................................................... 3
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS............................................ 3
GENERAL DESCRIPTION OF SECURITIES......................................... 4
DESCRIPTION OF DEBT SECURITIES............................................ 5
DESCRIPTION OF PREFERRED STOCK............................................ 13
DESCRIPTION OF COMMON STOCK............................................... 16
DESCRIPTION OF WARRANTS................................................... 16
PLAN OF DISTRIBUTION...................................................... 18
LEGAL MATTERS............................................................. 19
EXPERTS................................................................... 19
</TABLE>
i
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. These statements relate to
future events or our future clinical or product development or financial
performance. In some cases, you can identify forward-looking statements by
terminology such as "may," "will," "should," "expects," "plans," "anticipates,"
"believes," "estimates," "predicts," "potential" or "continue" or the negative
of those terms and other comparable terminology.
These statements reflect only management's current expectations. Important
factors that could cause actual results to differ materially from the forward-
looking statements we make or incorporate by reference in this prospectus are
set forth under the heading "Factors that May Affect Future Operating Results"
in the section entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in our most recent Annual Report on Form
10-K and Quarterly Report on Form 10-Q, as may be updated from time to time by
our future filings under the Securities Exchange Act, and elsewhere in the
documents incorporated by reference in this prospectus. If one or more of these
risks or uncertainties materialize, or if any underlying assumptions prove
incorrect, our actual results, performance or achievements may vary materially
from any future results, performance or achievements expressed or implied by
these forward-looking statements. We undertake no obligation to publicly update
any forward-looking statements, whether as a result of new information, future
events or otherwise.
AVAILABLE INFORMATION
We are subject to the information requirements of the Securities Exchange
Act and we therefore file periodic reports, proxy statements and other
information with the Securities and Exchange Commission relating to our
business, financial statements and other matters. The reports, proxy statements
and other information we file may be inspected and copied at prescribed rates
at the Securities and Exchange Commission's Public Reference Room at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 and should be available for
inspection and copying at the Securities and Exchange Commission's regional
offices located at 7 World Trade Center, Suite 1375, New York, New York 10048
and at 44 Montgomery Street, Suite 1100, San Francisco, California 94104. You
may obtain information on the operation of the Securities and Exchange
Commission's Public Reference Room by calling the Securities and Exchange
Commission at 1-800-SEC-0330. The Securities and Exchange Commission also
maintains an Internet site that contains reports, proxy statements and other
information regarding issuers like us that file electronically with the
Securities and Exchange Commission. The address of the Securities and Exchange
Commission's Internet site is http://www.sec.gov.
This prospectus constitutes part of a registration statement on Form S-3
filed under the Securities Act with respect to the securities. As permitted by
the Securities and Exchange Commission's rules, this prospectus omits some of
the information, exhibits and undertakings included in the registration
statement. You may read and copy the information omitted from this prospectus
but contained in the registration statement, as well as the periodic reports
and other information we file with the Securities and Exchange Commission, at
the public reference facilities maintained by the Securities and Exchange
Commission in Washington, D.C., New York, New York and San Francisco,
California.
Statements contained in this prospectus as to the contents of any contract
or other document are not necessarily complete, and in each instance we refer
you to the copy of the contract or document filed as an exhibit to the
registration statement, each such statement being qualified in all respects by
such reference.
1
<PAGE>
INCORPORATION BY REFERENCE
We have elected to "incorporate by reference" certain information into this
prospectus. By incorporating by reference, we can disclose important
information to you by referring you to another document we have filed
separately with the Securities and Exchange Commission. The information
incorporated by reference is deemed to be part of this prospectus, except for
information incorporated by reference that is superseded by information
contained in this prospectus. This prospectus incorporates by reference the
documents set forth below that we have previously filed with the Securities and
Exchange Commission:
. Annual Report on Form 10-K for the fiscal year ended December 31, 1999,
including information specifically incorporated by reference into our
Form 10-K from our definitive proxy statement for our 2000 Annual Meeting
of Stockholders, filed with the Securities and Exchange Commission on
July 6, 2000;
. Amendment to Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1999, filed with the Securities and Exchange Commission on
April 28, 2000;
. Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2000;
. Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2000;
. Quarterly Report on Form 10-Q for the quarterly period ended September
30, 2000; and
. the description of our common stock contained in our Registration
Statement on Form 8-A, filed with the Securities and Exchange Commission
on August 25, 1999.
We are also incorporating by reference all other reports that we file with
the Securities and Exchange Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act between the date of this prospectus and
the termination of the offering.
This prospectus may not be used to consummate sales of offered securities
unless accompanied by a prospectus supplement. The delivery of this prospectus
together with a prospectus supplement relating to particular offered securities
in any jurisdiction shall not constitute an offer in the jurisdiction of any
other securities covered by this prospectus.
We will provide to each person, including any beneficial owner, to whom this
prospectus is delivered a copy of any or all of the information that we have
incorporated by reference into this prospectus but not delivered with this
prospectus. To receive a free copy of any of the documents incorporated by
reference in this prospectus, other than exhibits, unless they are specifically
incorporated by reference in those documents, call or write to TiVo Inc.,
Attention: Investor Relations, 2160 Gold Street, PO Box 2160, Alviso, CA 95002
(telephone (408) 519-9345). The information relating to us contained in this
prospectus does not purport to be comprehensive and should be read together
with the information contained in the documents incorporated or deemed to be
incorporated by reference in this prospectus.
RISK FACTORS
Before you decide whether to purchase any of our securities, in addition to
the other information in this prospectus, you should carefully consider the
risk factors set forth under the heading "Factors that May Affect Future
Operating Results" in the section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in our most recent
Annual Report on Form 10-K and Quarterly Report on Form 10-Q, which are
incorporated by reference into this prospectus, as the same may be updated from
time to time by our future filings under the Securities Exchange Act. For more
information, see the section entitled "Incorporation by Reference."
2
<PAGE>
THE COMPANY
TiVo Inc. was incorporated in August 1997 as a Delaware corporation. We have
developed a subscription-based personal television service which we refer to as
the TiVo Service. The TiVo service provides viewers with the ability to pause,
rewind and play back live or recorded television broadcasts, as well as to
search for, watch and record programs. The TiVo Service also provides
television listings, daily suggestions and special viewing packages. The TiVo
Service relies on three key components: the personal video recorder, the TiVo
remote control and the TiVo Broadcast Center.
Our executive offices are located at 2160 Gold Street, PO Box 2160, Alviso,
CA 95002, and our telephone number is (408) 519-9100. TiVo Inc. and the TiVo
logo are our service marks. All other service marks and all brand names or
trademarks appearing in this prospectus are the property of their respective
holders.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement, we
will use the net proceeds from the sale of the securities for general corporate
purposes, which may include funding research, development, sales and marketing,
increasing our working capital, reducing indebtedness, and capital
expenditures. Pending the application of the net proceeds, we expect to invest
the proceeds in investment-grade, interest-bearing securities.
RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
Ratio of Earnings to Fixed Charges
Ratios of earnings to fixed charges are computed by dividing earnings by
fixed charges. Earnings consist of income before income taxes and amortization
of warrant expense in lieu of financing expenses. Fixed charges consist of
interest on all indebtedness and amortization of warrant expense in lieu of
financing expenses.
The following table sets forth our ratios of earnings to fixed charges for
the periods indicated:
<TABLE>
<CAPTION>
Fiscal Year
Period from Ended
August 4, 1997 December 31, Nine Months Three Months
(Inception) to --------------- Ended Ended
December 31, 1997 1998 1999 September 30, 2000 September 30, 2000
----------------- ------- ------- ------------------ ------------------
<S> <C> <C> <C> <C>
-- -- -- -- --
</TABLE>
Earnings for the years ended December 31, 1997, 1998, 1999 and the nine and
three months ended September 30, 2000 were insufficient to cover fixed charges
by the amount of the net loss of $595,000, $9,721,000, $66,565,000,
$117,137,000 and $63,646,000, respectively.
Ratio Of Earnings To Combined Fixed Charges And Preferred Stock Dividends
Ratios of earnings to combined fixed charges and preferred stock dividends
are computed by dividing earnings by the sum of fixed charges and preferred
stock dividends. Earnings consist of income before income taxes, amortization
of warrant expense in lieu of financing expenses and preferred dividends. Fixed
charges consist of interest on all indebtedness, amortization of warrant
expense in lieu of financing expenses and the preferred dividends.
3
<PAGE>
The following table sets forth our ratios of earnings to combined fixed
charges and preferred stock dividends for the periods indicated:
<TABLE>
<CAPTION>
Period from Fiscal Year Ended
August 4, 1997 December 31, Nine Months Three Months
(Inception) to ----------------- Ended Ended
December 31, 1997 1998 1999 September 30, 2000 September 30, 2000
----------------- -------- -------- ------------------ ------------------
<S> <C> <C> <C> <C>
-- -- -- -- --
</TABLE>
Earnings for the years ended 1997, 1998, 1999 and the nine and three months
ended September 30, 2000 were insufficient to cover fixed charges by the amount
of the net loss of $595,000, $9,721,000, $66,565,000, $117,137,000 and
$63,646,000, respectively.
GENERAL DESCRIPTION OF SECURITIES
We, directly or through agents, dealers or underwriters designated from time
to time, may offer, issue and sell, together or separately, up to $75,000,000
in the aggregate of:
. secured or unsecured debt securities, in one or more series, which may be
either senior debt securities, senior subordinated debt securities or
subordinated debt securities;
. shares of our preferred stock, par value $0.001 per share, in one or more
series;
. shares of our common stock, par value $0.001 per share;
. warrants to purchase our common stock or our preferred stock;
. warrants to purchase our debt securities; or
. any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing, each on terms to be
determined at the time of sale.
We may issue the debt securities as exchangeable for or convertible into
shares of common stock, preferred stock or other securities. The preferred
stock may also be exchangeable for and/or convertible into shares of common
stock, another series of preferred stock or other securities. The debt
securities, the preferred stock, the common stock and the warrants are
collectively referred to herein as the securities. When a particular series of
securities is offered, a supplement to this prospectus will be delivered with
this prospectus, which will set forth the terms of the offering and sale of the
offered securities.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of our debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the series in a supplement to this
prospectus. The following description of debt securities will apply to the debt
securities offered by this prospectus unless we provide otherwise in the
applicable prospectus supplement and in a supplement to the indenture, a board
resolution, or an officers' certificate delivered pursuant to the indenture.
The applicable prospectus supplement for a particular series of debt securities
may specify different or additional terms.
We may offer under this prospectus up to $75,000,000 aggregate principal
amount of secured or unsecured debt securities, or if debt securities are
issued at a discount, or in a foreign currency or composite currency, such
principal amount as may be sold for an initial public offering price of up to
$75,000,000. The debt securities may be either senior debt securities, senior
subordinated debt securities or subordinated debt securities.
The debt securities offered hereby will be issued under an indenture between
us and a trustee, as trustee. We have filed a copy of the form indenture as an
exhibit to the registration statement and you should read the indenture for
provisions that may be important to you. We have summarized select portions of
the indenture below. The summary is not complete. In the summary below, we have
included references to the section numbers of the indenture so that you can
easily locate these provisions. Capitalized terms used in the summary below
have the meanings specified in the indenture.
General
The terms of each series of debt securities will be established by or
pursuant to a resolution of our Board of Directors and detailed or determined
in the manner provided in a Board of Directors resolution, an officers'
certificate or by a supplemental indenture. (Section 2.2) The particular terms
of each series of debt securities will be described in a prospectus supplement
relating to the series, including any pricing supplement.
We can issue an unlimited amount of debt securities under the indenture that
may be in one or more series with the same or various maturities, at par, at a
premium, or at a discount. We will set forth in a prospectus supplement
(including any pricing supplement) relating to any series of debt securities
being offered, the initial offering price, the aggregate principal amount and
the following terms of the debt securities:
. the title of the debt securities;
. the price or prices (expressed as a percentage of the aggregate principal
amount) at which we will sell the debt securities;
. any limit on the aggregate principal amount of the debt securities;
. the date or dates on which we will pay the principal on the debt
securities;
. the rate or rates (which may be fixed or variable) per annum or the
method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the
debt securities will bear interest, the date or dates from which interest
will accrue, the date or dates on which interest will commence and be
payable and any regular record date for the interest payable on any
interest payment date;
. the place or places where the principal of, premium, and interest on the
debt securities will be payable;
. the terms and conditions upon which we may redeem the debt securities;
. any obligation we have to redeem or purchase the debt securities pursuant
to any sinking fund or analogous provisions or at the option of a holder
of debt securities;
5
<PAGE>
. the dates on which and the price or prices at which we will repurchase
the debt securities at the option of the holders of debt securities and
other detailed terms and provisions of these repurchase obligations;
. the denominations in which the debt securities will be issued, if other
than denominations of $1,000 and any integral multiple thereof;
. whether the debt securities will be issued in the form of certificated
debt securities or global debt securities;
. the portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount;
. the currency of denomination of the debt securities;
. the designation of the currency, currencies or currency units in which
payment of principal of, premium and interest on the debt securities will
be made;
. if payments of principal of, premium or interest on the debt securities
will be made in one or more currencies or currency units other than that
or those in which the debt securities are denominated, the manner in
which the exchange rate with respect to these payments will be
determined;
. the manner in which the amounts of payment of principal of, premium or
interest on the debt securities will be determined, if these amounts may
be determined by reference to an index based on a currency or currencies
other than that in which the debt securities are denominated or
designated to be payable or by reference to a commodity, commodity index,
stock exchange index or financial index;
. any provisions relating to any security provided for the debt securities;
. any addition to or change in the Events of Default described in this
prospectus or in the indenture with respect to the debt securities and
any change in the acceleration provisions described in this prospectus or
in the indenture with respect to the debt securities;
. any addition to or change in the covenants described in this prospectus
or in the indenture with respect to the debt securities;
. any other terms of the debt securities, which may modify or delete any
provision of the indenture as it applies to that series; and
. any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt securities.
(Section 2.2)
We may issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of acceleration
of their maturity pursuant to the terms of the indenture. We will provide you
with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable
prospectus supplement.
If we denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest on any series of debt securities is
payable in a foreign currency or currencies or a foreign currency unit or
units, we will provide you with information on the restrictions, elections,
general tax considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or currencies or
foreign currency unit or units in the applicable prospectus supplement.
Payment of Interest and Exchange
Each debt security will be represented by either one or more global
securities registered in the name of The Depository Trust Company, as
Depositary, or a nominee of the Depositary (we will refer to any debt security
represented by a global debt security as a book-entry debt security), or a
certificate issued in definitive
6
<PAGE>
registered form (we will refer to any debt security represented by a
certificated security as a certificated debt security), as described in the
applicable prospectus supplement. Except as described under "Global Debt
Securities and Book-Entry System" below, book-entry debt securities will not be
issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt
securities at the trustee's office or paying agencies in accordance with the
terms of the indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the
principal of, premium and interest on certificated debt securities only by
surrendering the old certificate representing those certificated debt
securities and either we or the trustee will reissue the old certificate to the
new holder or we or the trustee will issue a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security
representing book-entry debt securities will be deposited with, or on behalf
of, the Depositary, and registered in the name of the Depositary or a nominee
of the Depositary.
The Depositary has indicated it intends to follow the following procedures
with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will be
limited to persons that have accounts with the Depositary for the related
global debt security (we shall refer to these persons as participants) or
persons that may hold interests through participants. Upon the issuance of a
global debt security, the Depositary will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the book-entry debt securities represented by
the global debt security beneficially owned by such participants. The accounts
to be credited will be designated by any dealers, underwriters or agents
participating in the distribution of the book-entry debt securities. Ownership
of book-entry debt securities will be shown on, and the transfer of the
ownership interests will be effected only through, records maintained by the
Depositary for the related global debt security (with respect to interests of
participants) and on the records of participants (with respect to interests of
persons holding through participants). The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. These laws may impair the ability to own, transfer or pledge
beneficial interests in book-entry debt securities.
So long as the Depositary for a global debt security, or its nominee, is the
registered owner of that global debt security, the Depositary or its nominee,
as the case may be, will be considered the sole owner or holder of the book-
entry debt securities represented by such global debt security for all purposes
under the indenture. Except as described herein, beneficial owners of book-
entry debt securities will not be entitled to have securities registered in
their names, will not receive or be entitled to receive physical delivery of a
certificate in definitive form representing securities and will not be
considered the owners or holders of those securities under the indenture.
Accordingly, to exercise any rights of a holder under the indenture, each
person beneficially owning book-entry debt securities must rely on the
procedures of the Depositary for the related global debt security and, if that
person is not a participant, on the procedures of the participant through which
that person owns its interest.
We understand, however, that under existing industry practice, the
Depositary will authorize the persons on whose behalf it holds a global debt
security to exercise certain rights of holders of debt securities, and the
indenture provides that we, the trustee and our respective agents will treat as
the holder of a debt security the persons specified in a written statement of
the Depositary with respect to that global debt security for purposes of
obtaining any consents or directions required to be given by holders of the
debt securities pursuant to the indenture. (Section 2.14.6)
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We will make payments of principal of, and premium and interest on book-
entry debt securities to the Depositary or its nominee, as the case may be, as
the registered holder of the related global debt security. (Section 2.14.5) We,
the trustee and any other agent of ours or agent of the trustee will not have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a global debt
security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
We expect that the Depositary, upon receipt of any payment of principal of,
premium or interest on a global debt security, will immediately credit
participants' accounts with payments in amounts proportionate to the respective
amounts of book-entry debt securities held by each participant as shown on the
records of the Depositary. We also expect that payments by participants to
owners of beneficial interests in book-entry debt securities held through those
participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of those participants.
We will issue certificated debt securities in exchange for each global debt
security if the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Securities
Exchange Act, and a successor Depositary registered as a clearing agency under
the Securities Exchange Act is not appointed by us within 90 days. In addition,
we may at any time and in our sole discretion determine not to have any of the
book-entry debt securities of any series represented by one or more global debt
securities and, in that event, we will issue certificated debt securities in
exchange for the global debt securities of that series. Global debt securities
will also be exchangeable by the holders for certificated debt securities if an
event of default with respect to the book-entry debt securities represented by
those global debt securities has occurred and is continuing. Any certificated
debt securities issued in exchange for a global debt security will be
registered in such name or names as the Depositary shall instruct the trustee.
We expect that such instructions will be based upon directions received by the
Depositary from participants with respect to ownership of book-entry debt
securities relating to such global debt security.
We have obtained the foregoing information in this section concerning the
Depositary and the Depositary's book-entry system from sources we believe to be
reliable, but we take no responsibility for the accuracy of this information.
No Protection in the Event of a Change of Control
Unless we provide otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions which may afford holders of the
debt securities protection in the event we have a change in control or in the
event of a highly leveraged transaction (whether or not such transaction
results in a change in control).
Covenants
Unless we provide otherwise in the applicable prospectus supplement, the
debt securities will not contain any restrictive covenants, including covenants
restricting us or any of our subsidiaries from incurring, issuing, assuming or
guarantying any indebtedness secured by a lien on any of our or our
subsidiaries' property or capital stock, or restricting us or any of our
subsidiaries from entering into any sale and leaseback transactions.
Consolidation, Merger and Sale of Assets
Unless we provide otherwise in the applicable prospectus supplement, we may
not consolidate with or merge into, or convey, transfer or lease all or
substantially all of our properties and assets to, any person (a "successor
person"), and we may not permit any person to merge into, or convey, transfer
or lease its properties and assets substantially as an entirety to us, unless:
. the successor person is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic
jurisdiction and expressly assumes our obligations on the debt securities
and under the indenture;
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. immediately after giving effect to the transaction, no event of default,
and no event which, after notice or lapse of time, or both, would become
an event of default, shall have occurred and be continuing under the
indenture; and
. certain other conditions are met. (Section 5.1)
Events of Default
Unless we provide otherwise in the applicable prospectus supplement, "event
of default" means with respect to any series of debt securities, any of the
following:
. default in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of that default
for a period of 90 days (unless the entire amount of such payment is
deposited by us with the trustee or with a paying agent prior to the
expiration of the 90-day period);
. default in the payment of principal of or premium on any debt security of
that series when due and payable;
. default in the deposit of any sinking fund payment, when and as due in
respect of any debt security of that series;
. default in the performance or breach of any other covenant or warranty by
us in the indenture (other than a covenant or warranty that has been
included in the indenture solely for the benefit of a series of debt
securities other than that series), which default continues uncured for a
period of 60 days after we receive written notice from the trustee or we
and the trustee receive written notice from the holders of at least 51%
in principal amount of the outstanding debt securities of that series as
provided in the indenture;
. certain events of our bankruptcy, insolvency or reorganization; and
. any other event of default provided with respect to debt securities of
that series that is described in the applicable prospectus supplement
accompanying this prospectus.
No event of default with respect to a particular series of debt securities
(except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of
debt securities. (Section 6.1) An event of default may also be an event of
default under our bank credit agreements or other debt securities in existence
from time to time and under certain guaranties by us of any subsidiary
indebtedness. In addition, certain Events of Default or an acceleration under
the indenture may also be an event of default under some of our other
indebtedness outstanding from time to time.
Unless we provide otherwise in the applicable prospectus supplement, if an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing (other than certain events of our
bankruptcy, insolvency or reorganization), then the trustee or the holders of
not less than 51% in principal amount of the outstanding debt securities of
that series may, by written notice to us (and to the trustee if given by the
holders), declare to be due and payable immediately the principal (or, if the
debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) and premium
of all debt securities of that series. In the case of an event of default
resulting from certain events of bankruptcy, insolvency or reorganization, the
principal (or such specified amount) and premium of all outstanding debt
securities will become and be immediately due and payable without any
declaration or other act by the trustee or any holder of outstanding debt
securities. At any time after a declaration of acceleration with respect to
debt securities of any series has been made, but before the trustee has
obtained a judgment or decree for payment of the money due, the holders of a
majority in principal amount of the outstanding debt securities of that series
may, subject to our having paid or deposited with the trustee a sum sufficient
to pay overdue interest and principal which has become due other than by
acceleration and certain other conditions, rescind and annul such acceleration
if all Events of Default, other than the non-payment of accelerated principal
and premium with respect to debt securities of that series, have been cured or
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waived as provided in the indenture. (Section 6.2) For information as to waiver
of defaults see the discussion under "Modification and Waiver" below. We refer
you to the prospectus supplement relating to any series of debt securities that
are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of the discount securities upon the
occurrence of an event of default and the continuation of an event of default.
The indenture provides that the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
holder of outstanding debt securities, unless the trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Section 7.1(e))
Subject to certain rights of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series. (Section
6.12)
Unless we provide otherwise in the applicable prospectus supplement, no
holder of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
. that holder has previously given to the trustee written notice of a
continuing event of default with respect to debt securities of that
series; and
. the holders of at least 51% in principal amount of the outstanding debt
securities of that series have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as
trustee, and the trustee shall not have received from the holders of a
majority in principal amount of the outstanding debt securities of that
series a direction inconsistent with that request and has failed to
institute the proceeding within 60 days. (Section 6.7)
Notwithstanding the foregoing, the holder of any debt security will have an
absolute and unconditional right to receive payment of the principal of,
premium and any interest on that debt security on or after the due dates
expressed in that debt security and to institute suit for the enforcement of
payment. (Section 6.8)
The indenture requires us, within 90 days after the end of our fiscal year,
to furnish to the trustee a statement as to compliance with the indenture.
(Section 4.3) The indenture provides that the trustee may withhold notice to
the holders of debt securities of any series of any default or event of default
(except in payment on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that withholding
notice is in the interest of the holders of those debt securities. (Section
7.5)
Modification and Waiver
Unless we provide otherwise in the applicable prospectus supplement, we and
the trustee may modify and amend the indenture with the consent of the holders
of at least a majority in principal amount of the outstanding debt securities
of each series affected by the modifications or amendments. We and the trustee
may not make any modification or amendment without the consent of the holder of
each affected debt security then outstanding if that amendment will:
. change the amount of debt securities whose holders must consent to an
amendment or waiver;
. reduce the rate of or extend the time for payment of interest (including
default interest) on any debt security;
. reduce the principal of or premium on or change the fixed maturity of any
debt security or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation with respect to
any series of debt securities;
. reduce the principal amount of discount securities payable upon
acceleration of maturity;
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. waive a default in the payment of the principal of, premium or interest
on any debt security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities of
that series and a waiver of the payment default that resulted from that
acceleration);
. make the principal of or premium or interest on any debt security payable
in currency other than that stated in the debt security;
. make any change to certain provisions of the indenture relating to, among
other things, the right of holders of debt securities to receive payment
of the principal of, premium and interest on those debt securities, the
right of the holders to institute suit for the enforcement of the
payment, the right of holders to waive past defaults or amendments to the
limitations described in this bullet point; or
. waive a redemption payment with respect to any debt security or change
any of the provisions with respect to the redemption of any debt
securities. (Section 9.3)
Except for certain specified provisions, the holders of at least a majority
in principal amount of the outstanding debt securities of any series may, on
behalf of the holders of all debt securities of that series, waive our
compliance with provisions of the indenture. (Section 9.2) The holders of a
majority in principal amount of the outstanding debt securities of any series
may, on behalf of the holders of all the debt securities of that series, waive
any past default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of, premium or
any interest on any debt security of that series; provided, however, that the
holders of a majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration and its consequences, including any
related payment default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless the terms of the
applicable series of debt securities provide otherwise, we may be discharged
from any and all obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or exchange of debt
securities of the series, to replace stolen, lost or mutilated debt securities
of the series, and to maintain paying agencies and certain provisions relating
to the treatment of funds held by paying agents). We will be so discharged upon
the deposit with the trustee, in trust, of money and/or U.S. government
obligations or, in the case of debt securities denominated in a single currency
other than U.S. dollars, foreign government obligations (as described at the
end of this section), that, through the payment of interest and principal in
accordance with their terms, will provide money in an amount sufficient in the
opinion of a nationally recognized firm of independent public accountants to
pay and discharge each installment of principal, premium and interest on and
any mandatory sinking fund payments in respect of the debt securities of that
series on the stated maturity of such payments in accordance with the terms of
the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to
the trustee an officers' certificate and an opinion of counsel stating that we
have received from, or there has been published by, the United States Internal
Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable United States federal income tax law,
in either case to the effect that holders of the debt securities of such series
will not recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants. The indenture provides that, unless the
terms of the applicable series of debt securities provide otherwise, upon
compliance with certain conditions, we may omit to comply with the restrictive
covenants contained in Sections 4.2 (SEC Reports), 4.3 (Compliance Certificate)
through 4.6 (Taxes) and Section 5.1 (When We May Merge, Etc.) of the indenture,
as well as any additional covenants contained in a supplement to the indenture,
a board resolution or an officers' certificate delivered pursuant to the
indenture.
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The conditions include:
. depositing with the trustee money and/or U.S. government obligations or,
in the case of debt securities denominated in a single currency other
than U.S. dollars, foreign government obligations, that, through the
payment of interest and principal in accordance with their terms, will
provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants to pay principal,
premium and interest on and any mandatory sinking fund payments in
respect of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and those
debt securities; and
. delivering to the trustee an opinion of counsel to the effect that the
holders of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a result of
the deposit and related covenant defeasance and will be subject to United
States federal income tax in the same amount and in the same manner and
at the same times as would have been the case if the deposit and related
covenant defeasance had not occurred. (Section 8.4)
Covenant Defeasance and Events of Default. In the event we exercise our
option not to comply with certain covenants of the indenture with respect to
any series of debt securities and the debt securities of that series are
declared due and payable because of the occurrence of any event of default, the
amount of money and/or U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to pay amounts due
on the debt securities of that series at the time of their stated maturity but
may not be sufficient to pay amounts due on the debt securities of that series
at the time of the acceleration resulting from the event of default. However,
we will remain liable for those payments.
"Foreign government obligations" means, with respect to debt securities of
any series that are denominated in a currency other than U.S. dollars:
. direct obligations of the government that issued or caused to be issued
such currency for the payment of which obligations its full faith and
credit is pledged, which are not callable or redeemable at the option of
the issuer thereof; or
. obligations of a person controlled or supervised by or acting as an
agency or instrumentality of that government the timely payment of which
is unconditionally guaranteed as a full faith and credit obligation by
that government, which are not callable or redeemable at the option of
the issuer thereof.
Conversion and Exchange Rights
The debt securities may be exchanged for or converted into shares of common
stock, shares of preferred stock or other securities. The terms, if any, on
which the debt securities may be exchanged for or converted will be set forth
in the applicable prospectus supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder or at our option, in
which case the number of shares of common stock, preferred stock or other
securities to be received by the holders of the debt securities would be
calculated as of a time and in the manner stated in the prospectus supplement.
Governing Law
The indenture and the debt securities will be governed by, and construed in
accordance with, the internal laws of the State of New York. (Section 10.10)
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the preferred stock sets forth
certain general terms and provisions of the preferred stock to which any
prospectus supplement may relate and will apply to the preferred stock offered
by this prospectus unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a particular series of
preferred stock may specify different or additional terms. The description of
certain provisions of the preferred stock set forth below and in any prospectus
supplement does not purport to be complete and is subject to and qualified in
its entirety by reference to our certificate of incorporation and the
certificate of designations relating to each series of the preferred stock,
which will be filed with the Securities and Exchange Commission and
incorporated by reference in the registration statement of which this
prospectus is a part at or prior to the time of the issuance of such series of
the preferred stock.
General
We have authority to issue 10,000,000 shares of preferred stock, 5,000,000
shares of which are designated Series A Convertible Preferred Stock. As of
December 20, 2000, 2,711,861 shares of our Series A Convertible Preferred Stock
were issued and outstanding.
Under our certificate of incorporation, our board of directors is authorized
without further stockholder action to provide for the issuance of up to the
remaining 7,288,139 shares of our preferred stock, in one or more series, with
such voting powers, full or limited, and with such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issue of a series of such stock
adopted, at any time or from time to time, by our board of directors. As used
herein, the term "board of directors" includes any duly authorized committee
thereof. The issuance of the preferred stock could adversely affect the voting
power of holders of our common stock and the likelihood that such holders will
receive dividend payments and payments upon liquidation and could have the
effect of delaying, deferring or preventing a change in control.
The preferred stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless we provide otherwise in a prospectus
supplement relating to a particular series of the preferred stock. Reference is
made to the prospectus supplement relating to the particular series of the
preferred stock offered thereby for specific terms, including:
. the designation and stated value per share of such preferred stock and
the number of shares offered;
. the amount of liquidation preference per share;
. the initial public offering price at which such preferred stock will be
issued;
. the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall
commence to cumulate, if any;
. any redemption or sinking fund provisions;
. any conversion or exchange rights; and
. any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions.
The preferred stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. The rights of the holders of each series of the
preferred stock will be subordinate to those of our general creditors.
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Dividend Rights
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by our board of directors, out of our funds legally
available therefor, cash dividends on such dates and at such rates as set forth
in, or as are determined by the method described in, the prospectus supplement
relating to such series of the preferred stock. Such rate may be fixed or
variable or both. Each such dividend will be payable to the holders of record
as they appear on our stock books on such record dates, fixed by our board of
directors, as specified in the prospectus supplement relating to such series of
preferred stock.
Such dividends may be cumulative or noncumulative, as provided in the
prospectus supplement relating to such series of preferred stock. If our board
of directors fails to declare a dividend payable on a dividend payment date on
any series of preferred stock for which dividends are noncumulative, then the
right to receive a dividend in respect of the dividend period ending on such
dividend payment date will be lost, and we will have no obligation to pay any
dividend for such period, whether or not dividends on such series are declared
payable on any future dividend payment dates. Dividends on the shares of each
series of preferred stock for which dividends are cumulative will accrue from
the date on which we initially issue shares of such series.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our capital stock.
Unless otherwise specified in the applicable prospectus supplement, so long
as the shares of any series of the preferred stock are outstanding, unless:
. full dividends (including if such preferred stock is cumulative,
dividends for prior dividend periods) have been declared and paid in full
or declared and consideration sufficient for payment set apart for
payment on all outstanding shares of the preferred stock of such series
and all other classes and series of our preferred stock, other than
junior stock, as defined below, and
. we are not in default or in arrears with respect to the mandatory or
optional redemption or mandatory repurchase or other mandatory retirement
of, or with respect to any sinking or other analogous funds for, any
shares of preferred stock of such series or any shares of any of our
other preferred stock of any class or series, other than junior stock, as
defined below,
we may not declare any dividends on any shares of our common stock or any of
our other stock ranking as to dividends or distributions of assets junior to
such series of preferred stock (we refer to this common stock and any such
other stock as junior stock), or make any payment on account of, or set apart
money for, the purchase, redemption or other retirement of, or for a sinking or
other analogous fund for, any shares of junior stock or make any distribution
in respect of any shares of junior stock, whether in cash or property or in
obligations of our stock, other than in junior stock which is neither
convertible into, nor exchangeable or exercisable for, any of our securities
other than junior stock.
Liquidation Preferences
Unless otherwise specified in the applicable prospectus supplement, in the
event of our liquidation, dissolution or winding up, whether voluntary or
involuntary, the holders of each series of the preferred stock will be entitled
to receive out of our assets available for distribution to stockholders, before
any distribution of assets is made to the holders of common stock or any other
shares of our stock ranking junior as to such distribution to such series of
the preferred stock, but after any required distributions to holders of any
shares of our stock ranking senior as to such distribution to such series of
preferred stock, the amount set forth in the prospectus supplement relating to
such series of the preferred stock. If, upon our voluntary or involuntary
liquidation, dissolution or winding up and after required distribution of our
assets to holders of any shares of our stock ranking senior as to such
distribution to the preferred stock of a particular series, the amounts payable
with respect to the preferred stock of such series and any other shares of our
preferred stock, including any other series of the preferred stock, ranking as
to any such distribution on a parity with such series of the
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preferred stock are not paid in full, the holders of the preferred stock of
such series and of such other shares of our preferred stock will share ratably
in any such distribution of our assets in proportion to the full respective
preferential amounts to which they are entitled. After payment to the holders
of the preferred stock of each series of the full preferential amounts of the
liquidating distribution to which they are entitled, unless we provide
otherwise in the applicable prospectus supplement, the holders of each such
series of the preferred stock will be entitled to no further participation in
any distribution of our assets.
Redemption
A series of the preferred stock may be redeemable, in whole or from time to
time in part, at our option, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case upon terms, at the times
and at the redemption prices set forth in the prospectus supplement relating to
such series. Shares of the preferred stock redeemed by us will be restored to
the status of authorized but unissued shares of our preferred stock.
In the event that fewer than all of the outstanding shares of a series of
the preferred stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or
pro rata, subject to rounding to avoid fractional shares, as may be determined
by us or by any other method as may be determined by us in our sole discretion
to be equitable. From and after the redemption date, unless default is made by
us in providing for the payment of the redemption price plus accumulated and
unpaid dividends, if any, dividends will cease to accumulate on the shares of
the preferred stock called for redemption and all rights of the holders
thereof, except the right to receive the redemption price plus accumulated and
unpaid dividends, if any, will cease.
Unless otherwise specified in the applicable prospectus supplement, so long
as any dividends on shares of any series of the preferred stock or any other
series of our preferred stock ranking on a parity as to dividends and
distribution of assets with such series of the preferred stock are in arrears,
no shares of any such series of the preferred stock or such other series of our
preferred stock will be redeemed, whether by mandatory or optional redemption,
unless all such shares are simultaneously redeemed, and we will not purchase or
otherwise acquire any such shares; provided, however, that the foregoing will
not prevent the purchase or acquisition of such shares pursuant to a purchase
or exchange offer made on the same terms to holders of all such shares
outstanding.
Conversion and Exchange Rights
The terms, if any, on which shares of the preferred stock of any series may
be exchanged for or converted into shares of common stock, another series of
the preferred stock or any other security will be set forth in the applicable
prospectus supplement. Such terms may include provisions for conversion, either
mandatory, at the option of the holder or at our option, in which case the
number of shares of common stock, the shares of another series of the preferred
stock or the amount of any other securities to be received by the holders of
the preferred stock would be calculated as of a time and in the manner stated
in the prospectus supplement.
Voting Rights
Except as indicated in a prospectus supplement relating to a particular
series of the preferred stock, or except as required by applicable law, the
holders of the preferred stock will not be entitled to vote for any purpose.
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DESCRIPTION OF COMMON STOCK
We have authority to issue 150,000,000 shares of common stock. As of
December 20, 2000, 43,531,251 shares of our common stock were outstanding.
The holders of common stock are entitled to one vote per share on all
matters to be voted on by stockholders, including the election of directors.
Stockholders are not entitled to cumulative voting rights, and, accordingly,
the holders of a majority of the shares voting for the election of directors
can elect our entire board of directors if they choose to do so and, in that
event, the holders of the remaining shares will not be able to elect any person
to our board of directors.
The holders of common stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by our board of directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock which may be outstanding.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our common stock. Upon our liquidation, dissolution
or winding up, subject to prior liquidation rights of the holders of preferred
stock, the holders of common stock are entitled to receive on a pro rata basis
our remaining assets available for distribution. Holders of common stock have
no preemptive or other subscription rights, and there are no conversion rights
or redemption or sinking fund provisions with respect to such shares. All
outstanding shares of common stock are, and all shares being offered by this
prospectus will be, fully paid and not liable to further calls or assessment by
us.
DESCRIPTION OF WARRANTS
We may issue debt warrants to purchase debt securities, as well as equity
warrants to purchase preferred stock or common stock. The warrants may be
issued independently or together with any securities and may be attached to or
separate from the securities. The warrants are to be issued under warrant
agreements to be entered into between us and a bank or trust company, as
warrant agent, all as shall be set forth in the prospectus supplement relating
to warrants being offered pursuant to such prospectus supplement. The following
description of warrants will apply to the warrants offered by this prospectus
unless we provide otherwise in the applicable prospectus supplement. The
applicable prospectus supplement for a particular series of warrants may
specify different or additional terms.
Debt Warrants
The applicable prospectus supplement will describe the terms of debt
warrants offered, the warrant agreement relating to the debt warrants and the
debt warrant certificates representing the debt warrants, including the
following:
. the title of the debt warrants;
. the aggregate number of the debt warrants;
. the price or prices at which the debt warrants will be issued;
. the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants, and the
procedures and conditions relating to the exercise of the debt warrants;
. the designation and terms of any related debt securities with which the
debt warrants are issued, and the number of the debt warrants issued with
each debt security;
. the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
. the principal amount of debt securities purchasable upon exercise of each
debt warrant;
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. the date on which the right to exercise the debt warrants will commence,
and the date on which this right will expire;
. the maximum or minimum number of debt warrants which may be exercised at
any time;
. a discussion of any material federal income tax considerations; and
. any other terms of the debt warrants and terms, procedures and
limitations relating to the exercise of debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations, and debt warrants may be exercised at
the corporate trust office of the warrant agent or any other office indicated
in the prospectus supplement. Prior to the exercise of their debt warrants,
holders of debt warrants will not have any of the rights of holders of the debt
securities purchasable upon exercise and will not be entitled to payment of
principal of or any premium, if any, or interest on the debt securities
purchasable upon exercise.
Equity Warrants
The applicable prospectus supplement will describe the following terms of
equity warrants offered:
. the title of the equity warrants;
. the securities (i.e., preferred stock or common stock) for which the
equity warrants are exercisable;
. the price or prices at which the equity warrants will be issued;
. if applicable, the designation and terms of the preferred stock or common
stock with which the equity warrants are issued, and the number of equity
warrants issued with each share of preferred stock or common stock;
. if applicable, the date on and after which the equity warrants and the
related preferred stock or common stock will be separately transferable;
. if applicable, a discussion of any material federal income tax
considerations; and
. any other terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of equity warrants.
Holders of equity warrants will not be entitled, by virtue of being such
holders, to vote, consent, receive dividends, receive notice as stockholders
with respect to any meeting of stockholders for the election of our directors
or any other matter, or to exercise any rights whatsoever as our stockholders.
The exercise price payable and the number of shares of common stock or
preferred stock purchasable upon the exercise of each equity warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of common stock or preferred stock or a stock split,
reverse stock split, combination, subdivision or reclassification of common
stock or preferred stock. In lieu of adjusting the number of shares of common
stock or preferred stock purchasable upon exercise of each equity warrant, we
may elect to adjust the number of equity warrants. No adjustments in the number
of shares purchasable upon exercise of the equity warrants will be required
until cumulative adjustments require an adjustment of at least 1% thereof. We
may, at our option, reduce the exercise price at any time. No fractional shares
will be issued upon exercise of equity warrants, but we will pay the cash value
of any fractional shares otherwise issuable. Notwithstanding the foregoing, in
case of any consolidation, merger, or sale or conveyance of our property as an
entirety or substantially as an entirety, the holder of each outstanding equity
warrant shall have the right to the kind and amount of shares of stock and
other securities and property, including cash, receivable by a holder of the
number of shares of common stock or preferred stock into which the equity
warrant was exercisable immediately prior to such transaction.
17
<PAGE>
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash such principal
amount of securities or shares of stock at such exercise price as shall in each
case be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the warrants offered thereby. Warrants may be exercised
at any time up to the close of business on the expiration date set forth in the
prospectus supplement relating to the warrants offered thereby. After the close
of business on the expiration date, unexercised warrants will become void.
The warrants may be exercised as set forth in the prospectus supplement
relating to the warrants offered. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the securities purchasable
upon such exercise. If less than all of the warrants represented by such
warrant certificate are exercised, a new warrant certificate will be issued for
the remaining warrants.
PLAN OF DISTRIBUTION
We may sell securities to one or more underwriters for public offering and
sale by them and may also sell securities to investors directly or through
agents. We have reserved the right to sell securities directly to investors on
our own behalf in those jurisdictions where and in such manner as we are
authorized to do so.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Sales of securities offered
pursuant to this registration statement may be effected from time to time in
one or more transactions on the Nasdaq National Market or in negotiated
transactions or a combination of these methods. We may also, from time to time,
authorize dealers, acting as our agents, to offer and sell securities upon the
terms and conditions as are set forth in the applicable prospectus supplement.
In connection with the sale of securities, underwriters may receive
compensation from us in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of the securities for whom they
may act as agent.
Underwriters may sell securities to or through dealers and they may pay the
dealers compensation in the form of discounts, concessions or commissions. Any
purchasers may also pay the dealers commissions. Dealers and agents
participating in the distribution of securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting
discounts and commissions. Unless we provide otherwise in a prospectus
supplement, an agent will be acting on a best efforts basis and a dealer will
purchase securities as a principal, and may then resell the securities at
varying prices to be determined by the dealer.
We will identify any underwriter, dealer or agent involved in the offer and
sale of securities and set forth any compensation that we paid to underwriters
or agents in connection with the offering of securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers, in
the applicable prospectus supplement.
We may enter into agreements with underwriters, dealers and agents which may
entitle them to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Exchange Act, and to
reimbursement by us for certain expenses.
To facilitate an offering of a series of securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involves the sale by
persons participating in the offering of more securities than we have sold to
them. In such circumstances, such persons would cover the over-allotments or
short positions by purchasing in the open market or by exercising the over-
allotment option granted to such persons. In addition, such persons may
stabilize or maintain the price of the securities by
18
<PAGE>
bidding for or purchasing securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in any such
offering may be reclaimed if securities that they sold are repurchased in
connection with stabilization transactions. The effect of these transactions
may be to stabilize or maintain the market price of the securities at a level
above that which might otherwise prevail in the open market. Such transactions,
if commenced, may be discontinued at any time.
LEGAL MATTERS
Certain legal matters with respect to the securities offered hereby will be
passed upon for us by Latham & Watkins, Menlo Park, California. Certain legal
matters will be passed upon for any agents or underwriters by counsel for such
agents or underwriters identified in the applicable prospectus supplement.
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses to be paid by us in connection with the distribution of the
securities being registered are as set forth in the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee........................... $ 18,750
*Rating Agency Fees.............................................. $150,000
*Legal Fees and Expenses......................................... $175,000
*Accounting Fees and Expenses.................................... $ 7,500
*Printing Expenses............................................... $ 30,000
*Blue Sky Fees................................................... $ 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses................ $ 40,000
*Transfer Agent Fees & Expenses.................................. $ 5,000
*Miscellaneous $ 13,750
--------
*Total......................................................... $450,000
========
</TABLE>
--------
* Estimated.
Item 15. Indemnification of Directors and Officers.
We are a Delaware corporation. Subsection (b)(7) of Section 102 of the
Delaware General Corporation Law enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which the director derived an
improper personal benefit.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any present or former director, officer,
employee or agent of the corporation, or any individual serving at the
corporation's request as a director, officer, employee or agent of another
organization, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding
provided that such director, officer, employee or agent acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided further that such director, officer, employee or agent had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
present or former director, officer, employee or agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person acted in any of the capacities set
forth above, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit provided that such director, officer, employee or agent
acted in good faith and in a manner reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect to any claim, issue or matter as to
which such director, officer, employee or agent shall have
II-1
<PAGE>
been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, such director or
officer is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification and advancement of expenses provided
for, by, or granted pursuant to, Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and empowers
the corporation to purchase and maintain insurance on behalf of a present or
former director, officer, employee or agent of the corporation, or any
individual serving at the corporation's request as a director, officer or
employee of another organization, against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Our Amended and Restated Certificate of Incorporation provides that our
directors shall not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i)
for any breach of duty of loyalty to Registrant or to its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Our Amended and Restated Certificate of
incorporation further states that if the Delaware General Corporation Law is
later amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Our Amended and Restated Bylaws provide that we shall indemnify our officers
and directors to the fullest extent not prohibited by Delaware law and
authorizes us to modify the extent of such indemnification by individual
contracts with our officers and directors. Our Amended and Restated Bylaws
further provide, however, that we shall not be required to indemnify any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in our sole discretion, pursuant to the powers vested in the corporation under
the Delaware General Corporation Law or (iv) such indemnification is required
to be made pursuant to our contractual obligations to our directors and
officers. Our Amended and Restated Bylaws further provide that we have the
power to indemnify our officers, employees and other agents as set forth in the
Delaware General Corporation Law.
We have entered into indemnification agreements with substantially all of
our executive officers and directors, which provide indemnification under
certain circumstances for acts and omissions which may not be covered by any
directors' and officers' liability insurance.
Item 16. Exhibits.
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
4.1 Amended and Restated Certificate of Incorporation of TiVo Inc. filed as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2000 and incorporated herein by
reference.
4.2 Amended and Restated Bylaws of TiVo Inc., filed as Exhibit 3.4 to the
Company's Registration Statement on Form S-1, File No. 333-83515 and
incorporated herein by reference.
4.3 Form of Indenture.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
4.4* Form of Debt Securities.
4.5* Form of Warrant Agreement, including form of Warrant.
4.6 Form of Common Stock Certificate, filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-1, File No. 333-83515, and
incorporated herein by reference.
4.7* Form of Preferred Stock Certificate.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24.1 Powers of Attorney (contained on signature page of this Registration
Statement).
25.1** Statement of Eligibility of trustee on Form T-1.
</TABLE>
--------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange 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 the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities and Exchange Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act and (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
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
Securities Act and will be governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
(j) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Alviso, State of California, on .
Tivo Inc.
/s/ David H. Courtney
By: ________________________________
David H. Courtney
Chief Financial Officer and
Sr. Vice President of Finance and
Administration
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Michael Ramsay and David H. Courtney,
and each of them, with full power of substitution and full power to act without
the other, his true and lawful attorney-in-fact and agent to act for him in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement
and any related registration statement filed pursuant to Rule 462(b) under the
Securities Exchange Act, and to file this registration statement, with all
exhibits thereto, and other 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 order to effectuate
the same as fully, to all intents and purposes, as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael Ramsay Chief Executive Officer January 3, 2001
______________________________________ and Chairman of the Board
Michael Ramsay of Directors (Principal
Executive Officer)
/s/ David H. Courtney Chief Financial Officer January 3, 2001
______________________________________ and Sr. Vice President of
David H. Courtney Finance and
Administration (Principal
Financial and Accounting
Officer)
/s/ Stewart Alsop Director January 3, 2001
______________________________________
Stewart Alsop
/s/ James Barton Director January 3, 2001
______________________________________
James Barton
______________________________________ Director
Larry N. Chapman.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
______________________________________ Director
John S. Hendricks
/s/ Michael J. Homer Director January 3, 2001
______________________________________
Michael J. Homer
/s/ Randy Komisar Director January 3, 2001
______________________________________
Randy Komisar
______________________________________ Director
Jan P. Oosterveld
______________________________________ Director
Barry Schuler
______________________________________ Director
Howard Stringer
/s/ Geoffrey Y. Yang Director January 3, 2001
______________________________________
Geoffrey Y. Yang
______________________________________ Director
David M. Zaslav
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
4.1 Amended and Restated Certificate of Incorporation of TiVo Inc., filed
as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2000 and incorporated herein by
reference.
4.2 Amended and Restated Bylaws of TiVo Inc., filed as Exhibit 3.4 to the
Company's Registration Statement on Form S-1, File No. 333-83515, and
incorporated herein by reference.
4.3 Form of Indenture.
4.4* Form of Debt Securities.
4.5* Form of Warrant Agreement, including form of Warrant.
4.6 Form of Common Stock Certificate, filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-1, File No. 333-83515 and incorporated
herein by reference.
4.7* Form of Preferred Stock Certificate.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24.1 Powers of Attorney (contained on signature page of this Registration
Statement).
25.1** Statement of Eligibility of trustee on Form T-1.
</TABLE>
--------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
II-7
