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EXHIBIT 5.1
[LETTERHEAD OF LATHAM & WATKINS]
January 3, 2001
TiVo Inc.
2160 Gold Street
P.O. Box 2160
Alviso, California 95002
Re: $75,000,000 Aggregate Offering Price
of Securities of TiVo Inc.
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Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") to be filed by TiVo Inc. (the "Company") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), you have requested our opinion with respect to the
matters set forth below.
You have provided us with a draft of the Registration Statement in the
form in which it will be filed, which includes the prospectus (the
"Prospectus"). The Prospectus provides that it will be supplemented in the
future by one or more supplements to the Prospectus (each a "Prospectus
Supplement"). The Prospectus as supplemented by various Prospectus Supplements
will provide for the registration by the Company of up to $75,000,000 aggregate
offering price of (i) one or more series of senior, senior subordinated or
subordinated debt securities (the "Debt Securities"), (ii) one or more series of
preferred stock, par value $0.001 per share (the "Preferred Stock"), (iii)
shares of common stock, par value $0.001 per share (the "Common Stock"), or (iv)
warrants to purchase Common Stock, Preferred Stock or Debt Securities (the
"Warrants"). The Debt Securities, Preferred Stock, Common Stock and Warrants
are collectively referred to herein as the "Securities." Any Debt Securities
may be exchangeable and/or convertible into shares of Common Stock or Preferred
Stock or into another series of Debt Securities. The Preferred Stock may also
be exchangeable for and/or convertible into shares of
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TiVo Inc.
January 3, 2001
Page 2
Common Stock or another series of Preferred Stock. The Debt Securities may be
issued pursuant to an indenture between the Company and a financial institution
to be identified therein as trustee (the "Trustee") in the form attached as
Exhibit 4.3 to the Registration Statement, as such indenture may be supplemented
from time to time (the "Indenture").
In our capacity as your special counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale of
the Securities, and for the purposes of this opinion, have assumed that such
proceedings will be timely completed in the manner presently proposed and that
the terms of each issuance will otherwise be in compliance with law. In
addition, we have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for purposes of this
opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware, and with respect to the
opinions set forth in paragraphs 1 and 5 below, the internal laws of the State
of New York, and we express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or, in the
case of Delaware, any other laws, or as to any matters of municipal law or the
laws of any local agencies within any state.
Subject to the foregoing and the other matters set forth herein, it is
our opinion that as of the date hereof:
1. When (i) the Indenture has been duly executed and delivered by
the Company and the Trustee, and (ii) the Debt Securities have been duly
established in accordance with the Indenture (including, without limitation, the
adoption by the Board of Directors of the Company of a resolution duly
authorizing the issuance and delivery of the Debt Securities), duly
authenticated by the Trustee and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and provisions of
the Indenture and as contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (iii) the Registration Statement
and any required post-effective amendments thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under the
Securities Act, and (iv) assuming that the terms of the Debt Securities as
executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (v) assuming that the
Debt Securities as executed and delivered do not violate any law applicable to
the Company or result in a default under or breach of any agreement or
instrument binding upon the Company, and (vi) assuming that the Debt
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TiVo Inc.
January 3, 2001
Page 3
Securities as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by any court or
governmental or regulatory body having jurisdiction over the Company, the Debt
Securities will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
2. When (i) the Registration Statement and any required post-
effective amendments thereto and any and all Prospectus Supplement(s) required
by applicable laws have all become effective under the Securities Act and (ii) a
series of Preferred Stock has been duly established in accordance with the terms
of the Company's Amended and Restated Certificate of Incorporation, as amended
(the "Certificate of Incorporation") and applicable law, and upon adoption by
the Board of Directors of the Company of a resolution in form and content as
required by applicable law and upon issuance and delivery of and payment of
legal consideration in excess of the par value thereof for such shares in the
manner contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s) and by such resolution, and assuming that (a)
the terms of such shares as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
(b) at the time of issuance of such shares, the Company has a sufficient number
of authorized but unissued shares under the Certificate of Incorporation, (c)
such shares as executed and delivered do not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company and (d) such shares as executed and delivered comply
with all requirements and restrictions, if any, applicable to the Company,
whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company, such shares of such series of Preferred Stock
(including any Preferred Stock duly issued (i) upon the exchange or conversion
of any shares of Preferred Stock that are exchangeable or convertible into
another series of Preferred Stock, (ii) upon the exercise of any Warrants
exercisable for Preferred Stock or (iii) upon the exchange or conversion of Debt
Securities that are exchangeable or convertible into Preferred Stock) will be
validly issued, fully paid and nonassessable.
3. When the Registration Statement and any required post-effective
amendments thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, and upon
adoption by the Board of Directors of the Company of a resolution in form and
content as required by applicable law and upon issuance and delivery of and
payment of legal consideration in excess of the par value thereof for shares of
Common Stock in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolution, and
assuming that (i) the terms of such shares as executed and delivered are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), (ii) at the time of issuance of such shares, the
Company has a sufficient number of authorized but unissued shares under the
Certificate of Incorporation, (iii) such shares as executed and delivered do not
violate any law applicable to the Company or result in a default under or breach
of any agreement or instrument binding upon the
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TiVo Inc.
January 3, 2001
Page 4
Company and (iv) such shares as executed and delivered comply with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company, such shares of Common Stock (including any Common Stock duly issued
(a) upon the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into Common Stock, (b) upon the exercise of any
Warrants exercisable for Common Stock or (c) upon the exchange or conversion of
Debt Securities that are exchangeable or convertible into Common Stock) will be
validly issued, fully paid and nonassessable.
4. When (i) the Registration Statement and any required post-
effective amendments thereto and any and all Prospectus Supplement(s) required
by applicable law have all become effective under the Securities Act, (ii) the
applicable warrant agreement (the "Warrant Agreement") between the Company and a
financial institution identified therein as warrant agent (each a "Warrant
Agent") has been duly authorized, executed and delivered, (iii) the Warrants
have been duly established in accordance with the terms of the Warrant Agreement
and applicable law and (iv) the Warrants have been duly executed and
countersigned in accordance with the Warrant Agreement relating to such
Warrants, and assuming that (a) the terms of the Warrants as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), (b) at the time of issuance of the Warrants,
the Company has a sufficient number of authorized but unissued shares under the
Certificate of Incorporation, in order to issue the shares which are issuable
upon exercise of the Warrants, (c) the Warrants as executed and delivered do not
violate any law applicable to the Company or result in a default under or breach
of any agreement or instrument binding upon the Company and (d) the Warrants as
executed and delivered comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company, and upon adoption by the
Board of Directors of the Company of a resolution in form and content required
by applicable law and upon issuance and delivery of and payment for such
Warrants in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolution, the
Warrants will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
5. When (i) the Registration Statement and any required post-
effective amendments thereto and any and all Prospectus Supplement(s) required
by applicable laws have all become effective under the Securities Act, and (ii)
the Indenture has been duly executed and delivered by the Company and the
Trustee, and (iii) the Debt Securities have been duly executed and delivered by
all parties thereto, and (iv) assuming that the Indenture does not violate any
law applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (v) assuming that the
Indenture complies with all requirements and restrictions, if any, applicable to
the Company, whether imposed by any court or governmental or regulatory body
having jurisdiction over the Company, and (vi) assuming that the Debt Securities
are then issued and sold as contemplated in the Registration Statement, the
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TiVo Inc.
January 3, 2001
Page 5
Prospectus and the related Prospectus Supplement(s), the Indenture will
constitute the legally valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
The opinions set forth in paragraphs 1, 4 and 5 relating to the
enforceability of the Debt Securities, the Warrants and the Indenture are
subject to the following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights or remedies
of creditors; (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or contribution to
a party with respect to a liability where such indemnification or contribution
is contrary to public policy; (iv) we express no opinion concerning the
enforceability of the waiver of rights or defenses contained in Section 4.4 of
the Indenture; and (v) we express no opinion with respect to whether
acceleration of Debt Securities may affect the collectibility of that portion of
the stated principal amount thereof which might be determined to constitute
unearned interest thereon.
To the extent that the obligations of the Company under each Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Warrant Agent is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Warrant
Agent is duly qualified to engage in the activities contemplated by the Warrant
Agreement; that the Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and constitutes the legally valid, binding and
enforceable obligation of the Warrant Agent, enforceable against the Warrant
Agent in accordance with its terms; that the Warrant Agent is in compliance,
generally and with respect to acting as a Warrant Agent under the Warrant
Agreement, with all applicable laws and regulations; and that the Warrant Agent
has the requisite organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
To the extent that the obligations of the Company under the Indenture
may be dependent on such matters, we assume for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
legally valid, binding and enforceable obligation of the Trustee, enforceable
against the Trustee in accordance with its terms; that the Trustee is in
compliance, generally and with respect to acting as a trustee under the
Indenture, with all applicable laws and regulations; and that the Trustee has
the requisite organizational and legal power and authority to perform its
obligations under the Indenture.
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TiVo Inc.
January 3, 2001
Page 6
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
/s/ Latham & Watkins
