-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TJNAA3PgwurElZ5gEQ+KLs/P5lu5g1rCIRzZKInNnMmILtZVdD3Qg1rtcobK9okz k9XXsCe9GCUeBoj3bRS2cQ== 0000950172-02-000560.txt : 20020415 0000950172-02-000560.hdr.sgml : 20020415 ACCESSION NUMBER: 0000950172-02-000560 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 18 FILED AS OF DATE: 20020321 GROUP MEMBERS: GENERAL ELECTRIC COMPANY GROUP MEMBERS: NATIONAL BROADCASTING COMPANY HOLDING, INC. GROUP MEMBERS: NATIONAL BROADCASTING COMPANY, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TIVO INC CENTRAL INDEX KEY: 0001088825 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 770463167 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-57007 FILM NUMBER: 02580602 BUSINESS ADDRESS: STREET 1: 2160 GOLD STREET STREET 2: PO BOX 2160 CITY: ALVISO STATE: CA ZIP: 95002 BUSINESS PHONE: 4087476080 MAIL ADDRESS: STREET 1: 894 ROSS DRIVE STREET 2: SUITE 100 CITY: SUNNYVALE STATE: CA ZIP: 94089 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL ELECTRIC CO CENTRAL INDEX KEY: 0000040545 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC & OTHER ELECTRICAL EQUIPMENT (NO COMPUTER EQUIP) [3600] IRS NUMBER: 140689340 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3135 EASTON TURNPIKE STREET 2: W3M CITY: FAIRFIELD STATE: CT ZIP: 06431 BUSINESS PHONE: 203-373-2211 MAIL ADDRESS: STREET 1: 3135 EASTON TURNPIKE CITY: FAIRFIELD STATE: CT ZIP: 06431 SC 13D 1 tivo.txt ============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. __) TIVO INC. Common Stock, $.001 par value per share 888706108 - ------------------------------------------ -------------------- (Title of class of securities) (CUSIP number) Lawrence P. Tu, Executive Vice President and General Counsel National Broadcasting Company, Inc. 30 Rockefeller Plaza, New York, NY 10012, (212) 664-7024 - ------------------------------------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) August 28, 2001 - ------------------------------------------------------------------------------- (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. =============================================================================== CUSIP NO. 888706108 13D Page 2 of - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON: National Broadcasting Company, Inc. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 14-1682529 - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [X] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS: WC - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER: 3,996,971 SHARES ------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER: -0- OWNED BY ------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER: 3,996,971 REPORTING ------------------------------------------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER: -0- - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 3,996,971 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 8.3% * - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: CO - ------------------------------------------------------------------------------- * Based on 45,167,179 common stock outstanding as of December 10, 2001 as reported in the Company's Quarterly Report on Form 10Q for the quarterly period ended October 31, 2001. CUSIP NO. 888706108 13D Page 3 of - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON: National Broadcasting Company Holding, Inc. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 13-3448662 - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [X] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS: Not applicable - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER: Disclaimed (see 11 SHARES below) ------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER: -0- OWNED BY ----- ------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER: Disclaimed (see 11 REPORTING below) ----- ------------------------------------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER: -0- - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: Beneficial ownership of all shares disclaimed by National Broadcasting Company Holding, Inc. - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): Not applicable (see 11 above) - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: CO - ------------------------------------------------------------------------------- CUSIP NO. 888706108 13D Page 4 of - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON: General Electric Company I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 14-0689340 - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [X] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------- ----------------------------------------- 4 SOURCE OF FUNDS: Not applicable - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - ----------------------- ----- ------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER: Disclaimed (see 11 below) SHARES ------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER: -0- OWNED BY ------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER: Disclaimed (see 11 below) REPORTING ------------------------------------------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER: -0- - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: Beneficial ownership of all shares disclaimed by General Electric Company - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): Not applicable (see 11 above) - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: CO - ------------------------------------------------------------------------------- Item 1. Security and Issuer. The title and class of equity security to which this statement on Schedule 13D relates is the common stock, par value $.001 per share of TiVo, Inc., a Delaware corporation (the "Company"). The address of the Company's principal executive office is 2160 Gold Street, Alviso, California 95002. Item 2. Identity and Background. This statement is being filed by National Broadcasting Company, Inc. ("NBC"), for and on behalf of itself, National Broadcasting Company Holding, Inc. ("NBC Holding") and General Electric Company ("GE"). The transactions disclosed in this statement herein are referred to as the "Investment." NBC is a wholly owned subsidiary of NBC Holding and NBC Holding is a wholly owned subsidiary of GE. NBC, NBC Holding and GE are referred to herein as the "Reporting Persons." An agreement among the Reporting Persons with respect to the filing of this statement is attached hereto as Exhibit 1. NBC is a Delaware corporation with its principal executive offices located at 30 Rockefeller Plaza, New York, New York 10112. The principal activities of NBC are the operation of television and cable broadcast networks and television stations and the provision of related media and Internet services. NBC Holding is a Delaware corporation with its principal executive offices located at 30 Rockefeller Plaza, New York, New York 10112. NBC Holding is a holding company which owns all of the common stock of NBC. GE is a New York corporation with its principal executive offices located at 3135 Easton Turnpike, Fairfield, Connecticut 06431. GE engages in providing a wide variety of industrial, commercial and consumer products and services. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of NBC, NBC Holding and GE are set forth on Schedules A, B and C attached hereto, respectively. Except as set forth on Schedule D hereto, during the last five years none of the Reporting Persons, nor, to the best of their knowledge, any of their directors or executive officers, has been (i) convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws. This statement is being filed while the Reporting Persons are in the process of verifying information required herein from their respective directors and executive officers. If the Reporting Persons obtain information concerning such individuals which would cause a material change in the disclosure contained herein, an amendment to this statement will be filed that will disclose such change. Item 3. Source and Amount of Funds or Other Consideration. On April 26, 1999, NBC acquired 1,013,415 shares of the Company's Series G Preferred Stock (the "Preferred Shares"). The Preferred Shares automatically converted to Common Stock upon the Company's initial public offering in September 1999. NBC paid an aggregate purchase price of $7,500,000 from its working capital. In connection therewith, (1) NBC, the Company and the other investors thereto entered into the Sixth Amended and Restated Investor Rights Agreement, dated as of April 16, 1999 (the "Investor Rights Agreement") which provides for certain transfer restrictions, registration rights, board rights and rights of first refusal and (2) NBC and the Company entered into a Programming Agreement dated as of April 16, 1999 (the "Programming Agreement") providing for certain services and rights to NBC. On August 28, 2001, NBC acquired (1) $10,000,000 aggregate principal amount of 7% Convertible Senior Notes Due 2006 (the "Note"), (2) 490,196 Warrants (each a "Five-Year Warrant") to purchase one share of TiVo common stock, par value $.001 per share (the "Common Stock") and (3) 742,721 Units (each a "Unit"), each consisting of (a) 742,721 Warrants (each a "One-Year Warrant") to purchase one share of Common Stock and 245,098 Warrants (each a "Five-Year Terminable Warrant" and, together with the Five-Year Warrants and the One-Year Warrants, the "Warrants"; the Notes and the Warrants are hereinafter referred to as the "Securities") to purchase .33 of a share of Common Stock. NBC paid an aggregate purchase price of $10,000,000 from its working capital. In addition, NBC and the Company executed (1) an Addendum to the April 16, 1999 programming agreement between NBC and the Company, dated as of August 28, 2001 (the "Programming Agreement Addendum") describing certain services to be provided by the Company to NBC and (2) an advertising agreement (the "Advertising Agreement") between NBC and the Company, dated as of August 28, 2001, for the purchase of advertising spots by the Company from NBC. David Zaslav, President of NBC Cable, has been serving as a director on the Company's Board of Directors since September 20, 2000. In connection therewith, Zaslav entered into an agreement with NBC, dated as of September 20, 2000 (the "Nominee Agreement"), whereby Zaslav agreed to hold as a nominee of NBC all current and future stock options granted by the Company to Zaslav in his capacity as a non-employee board member of the Company. Pursuant to the Nominee Agreement, Zaslav agreed to act upon the instructions of NBC with regard to such options. As of the date of this Schedule 13D, Zaslav has been granted options to purchase up to 20,000 shares of the Company's Common Stock, 13,333 of which have vested and none of which have been exercised. Item 4. Purpose of Transaction. NBC acquired the Securities of the Company as an investment and holds them in the ordinary course of business and not with the purpose or effect of changing the control of the Company. NBC intends to review its investment on a regular basis and as a result thereof may at any time or from time to time, acquire additional securities of the Company or dispose of all or a portion of any securities of the Company in the open market or otherwise. Any such acquisition or disposition would be made in compliance with all applicable laws and regulations. NBC entered into a Series G Preferred Stock Purchase Agreement, dated as of April 16, 1999 (the "Series G Preferred Purchase Agreement") with the Company whereby it acquired 1,013,415 shares of the Company's Series G Preferred Stock (the "Preferred Shares"). The Preferred Shares automatically converted to Common Stock upon the Company's initial public offering in September 1999. In connection with the Series G Preferred Purchase Agreement, NBC, (1) the Company and the other investors thereto entered into the Investor Rights Agreement and (2) NBC and the Company entered into the Programming Agreement. Pursuant to the Amended and Restated Certificate of Incorporation that was filed on April 15, 1999 in connection with the issuance of the Series G Preferred Stock (the "Amended Charter"), the holders of the Preferred Shares, voting together as a separate class, have the right to elect to one member of the Company's board of directors. David Zaslav, President of NBC Cable Networks currently serves as the board designee of the Preferred Shares. Each of the Agreements related to the foregoing is filed as an exhibit hereto (as indicated below) and incorporated by reference herein. The Investor Rights Agreement provides among other things, that, other than certain permitted transfers, the Preferred Shares and the Common Stock issuable upon conversion thereof may not be transferred unless there is a registration statement in effect covering the proposed disposition and the transferee has agreed to be bound by the terms of the Investor Rights Agreement. The Investor Rights Agreement also provides for demand registration rights, piggyback registration rights, Form S-3 registration rights and a right of first refusal to purchase each holder's pro rata share in any subsequent issuance of equity securities by the Company as described in the Investor Rights Agreement. NBC entered into a (1) Note and Warrant Purchase Agreement, dated as of August 28, 2001 (the "Note and Warrant Purchase Agreement") with the Company, (2) Registration Rights Agreement, dated as of August 28, 2001 (the "Registration Rights Agreement") with the Company, (3) Letter Agreement, dated as of August 28, 2001 (the "Letter Agreement") with the Company, (4) the Operational Agreement and (5) the Advertising Agreement to effectuate the transactions contemplated by the Agreements (as described below). Each of the Agreements related to the foregoing is filed as an exhibit hereto (as indicated below) and incorporated by reference herein. NBC and the Company entered into a Note and Warrant Purchase Agreement whereby NBC acquired the (1) $10,000,000 aggregate principal amount Note convertible into shares of Common Stock, (2) 490,196 Five-Year Warrants to purchase one share of Common Stock and (3) 742,721 Units, each consisting of (a) 742,721 One-Year Warrants to purchase one share of Common Stock and 245,098 Five-Year Terminable Warrants to purchase .33 of a share of Common Stock. This description is not complete and is subject to the terms of the Note and Warrant Purchase Agreement which is attached as an exhibit hereto. The Notes are convertible at any time prior to maturity (August 15, 2006) into Common Stock, initially at a conversion price of $6.73 per share, subject to certain conversion price adjustments. The Company may redeem some or all of the Notes, at any time before maturity, at a redemption price, in cash, of $1,000 per $1,000 principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. The holder of the Notes may require the Company to repurchase the Notes, in cash at 110% of the principal amount of the Notes plus accrued and unpaid interest, upon certain changes of control and the delisting of the Common Stock. Each Five Year Warrant represents the right to purchase one share of Common Stock and is exercisable at any time on or before August 28, 2006. The exercise price of the Five Year Warrants is $7.85 per share of Common Stock, subject to certain antidilution adjustments. Each Unit consists of one One Year Warrant to purchase one share of Common Stock and one Five Year Terminable Warrant to purchase .33 of a share of Common Stock. The One Year Warrant and the Five Year Terminable Warrant that comprise each Unit are not separately transferable, except that upon the exercise of the One Year Warrant, the corresponding Five Year Terminable Warrant may thereafter be separately transferred. Each One Year Warrant represents the right to purchase one share of Common Stock and is exercisable at any time on or before August 28, 2002, subject to early termination as described below. The exercise price of the One Year Warrants is $6.73 per share of Common Stock, subject to certain antidilution adjustments. The One Year Warrants are terminable by the Company at any time if the closing price per share of the Common Stock exceeds 150% of the then effective exercise price for any 20 out of 30 consecutive trading days (referred to as the "Determination Period") and the shelf registration statement is effective and available for use at all times during the period beginning 60 days prior to the date on which the Company mails notice of the termination of the One Year Warrant and ending on the 60th day after the mailing date of the notice of termination, and is expected to remain effective and available for use for at least 30 days following the 60th day. If the Company elects to terminate the One Year Warrant, it may do so only if, within 30 days after the end of the Determination Period, it provides notice of termination to the holders. The One Year Warrants will expire 60 days after the mailing date of the notice of termination. Each Five Year Terminable Warrant represents the right to purchase .33 of a share of Common Stock. The Five Year Terminable Warrants are exercisable at any time on or after the separation date for such warrant and on or before August 28, 2006, subject to early termination as described below. The exercise price of the Five Year Terminable Warrants is $7.85 per share of Common Stock, subject to certain antidilution adjustments. In the event that the One Year Warrant included in such Unit terminates or expires without having been exercised, the corresponding Five Year Terminable Warrant will also terminate. The termination of the Five Year Terminable Warrant will be effective as of the date of the termination or expiration of the One Year Warrant. The Registration Rights Agreement provides that the Company will file a shelf registration statement for the resale of the Notes, the Common Stock issuable upon conversion of the Notes, the Warrants and the Common Stock issuable upon exercise of the Warrants and maintain the effectiveness of such shelf registration statement until the earlier of the sale of all of the registrable securities under the registration statement and August 28, 2003. The Letter Agreement provides that during the first 45 days after any conversion of Notes or exercise of Warrants by NBC, NBC shall not sell or transfer the Common Stock issued upon conversion of such Notes or upon the exercise of such Warrants. The above description of the Preferred Shares and the Securities is not complete and is subject to the terms of the applicable agreements and documents attached hereto as exhibits and incorporated herein by reference. Although the foregoing represents the range of activities currently contemplated by the Reporting Persons with respect to the Company, it should be noted that the possible activities of the Reporting Persons are subject to change at any time. Except as set forth above, none of the Reporting Persons has any present plans or proposals which relate to or would result in any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) The responses of the Reporting Persons to Rows (11) through (13) of the cover pages of this statement on Schedule 13D are incorporated herein by reference. As of February 6, 2002, NBC beneficially owned in the aggregate 3,976,971 shares of the Common Stock of the Company (assuming the conversion of all of its Notes and the exercise of its Warrants), representing approximately 8.3% of the outstanding shares of the Company (based on the number of shares outstanding as of December 10, 2001 as reported in the Company's Quarterly Report on Form 10Q for the quarterly period ended October 31, 2001), after giving effect to the issuance of Common Stock by the Company to NBC pursuant to the Note and Warrant Purchase Agreement and assuming NBC's conversion of all of its Notes and Warrants. Except as disclosed in this Item 5(a), none of the Reporting Persons, nor, to the best of their knowledge, any of their directors, or executive officers, beneficially owns any shares of Common Stock of the Company. (b) The responses of the Reporting Persons to (i) Rows (7) through (10) of the cover pages of this statement on Schedule 13D and (ii) Item 5(a) hereof are incorporated herein by reference. As further described in Item 6, NBC has entered into an arrangement with respect to the disposition of the Common Stock acquired pursuant to the Note and Warrant Purchase Agreement. Except as disclosed in this Item 5(b), none of the Reporting Persons, nor to the best of their knowledge, any of their directors or executive officers, presently has the power to vote or direct the vote or to dispose or direct the disposition of any of the shares of Common Stock of the Company which they may be deemed to beneficially own. (c ) Except as disclosed in Item 3 hereof, none of the Reporting Persons, nor, to the best of their knowledge, any of their directors or executive officers, has effected any transaction in the Common Stock of the Company during the past 60 days. (d) Not applicable. (e) Not applicable. Neither the filing of this Schedule 13D or any amendment thereto, nor anything contained herein is intended as, or should be construed as, an admission that GE or NBC Holding is the "beneficial owner" of any shares of Common Stock. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. The response to Items 3, 4 and 5 hereof is incorporated herein by reference. Except as set forth in this Schedule 13D, to the best knowledge of the Reporting Persons, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any of the securities of the Issuer, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Company. A joint filing agreement among the Reporting Persons with respect to the filing of this Schedule 13D and any amendments thereto is attached hereto as Exhibit 1. Item 7. Materials to be Filed as Exhibits. Exhibit 1 Joint Filing Agreement by and among National Broadcasting Company, Inc., National Broadcasting Company Holding, Inc. and General Electric Company, dated February 14, 2002. Exhibit 2 Series G Preferred Stock Agreement by and between TiVo, Inc., and NBC Multimedia, Inc., dated as of April 16, 1999. Exhibit 3 Sixth Amended and Restated Investor Rights Agreement by and among TiVo, Inc., and the purchasers of the Company's Series A, B, C, D, E, F and G Preferred Stock and Registrable Common Stock, dated as of April 16, 1999. Exhibit 4 Amended and Restated Certificate of Incorporation of TiVo Inc. filed on April 15, 1999. Exhibit 5 Note and Warrant Purchase Agreement, dated as of August 28, 2001 between NBC and the TiVo Inc. Exhibit 6 Registration Rights Agreement, dated as of August 28, 2001, between NBC and TiVo Inc. Exhibit 7 Letter agreement, dated as of August 28, 2001, between NBC and TiVo Inc. Exhibit 8 Advertising Agreement between NBC and the Company, dated as of August 28, 2001. Exhibit 9 Warrant Agreement (for One Year Warrants), dated as of August 28, 2001, between TiVo Inc. and The Bank of New York as Warrant Agent. Exhibit 10 Warrant Agreement (for Five Year Terminable Warrants), dated as of August 28, 2001, between TiVo Inc. and The Bank of New York as Warrant Agent. Exhibit 11 Warrant Agreement (for Five Year Warrants), dated as of August 28, 2001, between TiVo Inc. and The Bank of New York as Warrant Agent. Exhibit 12 Indenture, dated as of August 28, 2001, between TiVo, Inc. as Issuer and The Bank of New York, as Trustee for 7% Convertible Senior Notes Due 2006. Exhibit 13 7% Convertible Senior Notes due 2006 No. CSN-17 (CUSIP no. 888706AB4) Exhibit 14 Warrant Certificate No. FYW-17 (CUSIP No. 888706 12 4) (Five Year Warrant) Exhibit 15 Warrant Certificate No. OYW-17 (Unit CUSIP No. 888706 40 5; Warrant CUSIP No. 888-706 15 7) (One Year Warrant) Exhibit 16 Warrant Certificate No. FYTW-17 (Unit CUSIP No. 888706 40 5; Warrant CUSIP No. 888706 14 0) (Five Year Terminable Warrant). Exhibit 17 Nominee Agreement, dated as of September 20, 2000, between David Zaslav and National Broadcasting Company, Inc. SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 18, 2002 GENERAL ELECTRIC COMPANY By: /s/ Robert E. Healing --------------------------------- Name: Robert E. Healing Title: Attorney-in-Fact NATIONAL BROADCASTING COMPANY HOLDING, INC. By: /s/ Elizabeth A. Newell ---------------------------------- Name: Elizabeth A. Newell Title: Assistant Secretary NATIONAL BROADCASTING COMPANY, INC. By: /s/ Elizabeth A. Newell ---------------------------------- Name: Elizabeth A. Newell Title: Assistant Secretary SCHEDULE A NATIONAL BROADCASTING COMPANY, INC. DIRECTORS
PRESENT NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION - ---- ---------------- -------------------- S.S. Cathcart 222 Wisconsin Avenue Retired Chairman, Suite 103 Illinois Tool Works Lake Forest, IL 60045 D.D. Dammerman General Electric Company Vice Chairman of the Board and 3135 Easton Turnpike Executive Officer, General Fairfield, CT 06431 Electric Company; Chairman, General Electric Capital Services, Inc. P. Fresco Fiat SpA Chairman of the Board, via Nizza 250 Fiat SpA 10126 Torino, Italy A. M. Fudge General Electric Company Former Executive Vice President 3135 Easton Turnpike Kraft Foods, Inc. Fairfield, CT 06431 J. R. Immelt General Electric Company Chairman of the Board 3135 Easton Turnpike and Chief Executive Fairfield, CT 06431 Officer, General Electric Company A. Jung Avon Products, Inc. President and Chief 1345 Avenue of the Americas Executive Officer, New York, NY 10105 Avon Products, Inc. K.G. Langone Invemed Associates, Inc. Chairman, President and Chief 375 Park Avenue Executive Officer, New York, NY 10152 Invemed Associates, Inc. R.B. Lazarus Ogilvy & Mather Worldwide Chairman and Chief 309 West 49th Street Executive Officer New York, NY 10019-7316 S.G. McNealy Sun Microsystems, Inc. Chairman, President and Chief 901 San Antonio Road Executive Officer, Palo Alto, CA 94303-4900 Sun Microsystems, Inc. G.G. Michelson Federated Department Stores Former Member of the 151 West 34th Street Board of Directors, New York, NY 10001 Federated Department Stores S. Nunn King & Spalding Partner, King & Spalding 191 Peachtree Street, N.E. Atlanta, Georgia 30303 R.S. Penske Penske Corporation Chairman of the Board 13400 Outer Drive, West and President, Penske Detroit, MI 48239-4001 Corporation F.H.T. Rhodes Cornell University President Emeritus, 3104 Snee Building Cornell University Ithaca, NY 14853 G. L. Rogers General Electric Company Vice Chairman of the Board and 3135 Easton Turnpike Executive Officer, General Fairfield, CT 06431 Electric Company A.C. Sigler Champion International Retired Chairman of the Corporation Board and CEO 1 Champion Plaza and former Director, Stamford, CT 06921 Champion International Corporation D.A. Warner III J. P. Morgan Chase & Co., Chairman of the Board 270 Park Avenue The Chase Manhattan Bank and New York, NY 10017-2070 Morgan Guaranty Trust Co. of New York R. C. Wright National Broadcasting Company, Inc. Vice Chairman of the Board and 30 Rockefeller Plaza Executive Officer, General New York, NY 10112 Electric Company; Chairman and Chief Executive Officer, National Broadcasting Company, Inc. Citizenship P. Fresco Italy Andrea Jung Canada All Others U.S.A.
NATIONAL BROADCASTING COMPANY, INC EXECUTIVE OFFICERS
PRESENT NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION - ---- ---------------- ---------------------- J.R. Immelt General Electric Company Chairman of the Board and 3135 Easton Turnpike Chief Executive Officer Fairfield, CT 06431 R. C. Wright National Broadcasting Company, Inc. Vice Chairman of the Board and 30 Rockefeller Plaza Executive Officer, General New York, NY 10112 Electric Company; Chairman and Chief Executive Officer Mark Vachon National Broadcasting Company, Inc. Executive Vice President/ 30 Rockefeller Plaza Chief Financial Officer/ New York, NY 10112 Treasurer W. L. Bolster National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 R. Cotton National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 D. Ebersol National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 J. W. Eck National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 R. A. Falco National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 B. W. Heineman, Jr. General Electric Company Senior Vice President - 3135 Easton Turnpike General Counsel and Secretary Fairfield, CT 06431 General Electric Company J. W. Ireland III National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 A. R. Lack National Broadcasting Company, Inc. President and Chief Operating 30 Rockefeller Plaza Officer New York, NY 10112 P. Madison National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 S. Sassa National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 E. J. Scanlon National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 N. Shapiro National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 P. Thomas-Graham National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 L. Tu National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 M. Yudkovitz National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 D. Zaslav National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112 J. Zucker National Broadcasting Company, Inc. Executive Vice President 30 Rockefeller Plaza New York, NY 10112
SCHEDULE B NATIONAL BROADCASTING COMPANY HOLDING, INC. DIRECTORS
PRESENT NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION - ---- ---------------- -------------------- James I. Cash, Jr. Harvard Business School Professor of Business Morgan Hall Administration-Graduate Soldiers Field Road School of Business Boston, MA 02163 Administration, Harvard University S.S. Cathcart 222 Wisconsin Avenue Retired Chairman, Suite 103 Illinois Tool Works Lake Forest, IL 60045 D.D. Dammerman General Electric Company Vice Chairman of the Board and 3135 Easton Turnpike Executive Officer, General Fairfield, CT 06431 Electric Company; Chairman, General Electric Capital Services, Inc. P. Fresco Fiat SpA Chairman of the Board, via Nizza 250 Fiat SpA 10126 Torino, Italy Claudio Gonzalez Kimberly-Clark de Mexico, Chairman of the Board S.A. de C.V. and Chief Executive Officer, Jose Luis Lagrange 103, Kimberly-Clark de Mexico, Tercero Piso S.A. de C.V. Colonia Los Morales Mexico, D.F. 11510, Mexico A. Jung Avon Products, Inc. President and Chief 1345 Avenue of the Americas Executive Officer, New York, NY 10105 Avon Products, Inc. S.G. McNealy Sun Microsystems, Inc. Chairman, President and Chief 901 San Antonio Road Executive Officer, Palo Alto, CA 94303-4900 Sun Microsystems, Inc. G.G. Michelson Federated Department Stores Former Member of the 151 West 34th Street Board of Directors, New York, NY 10001 Federated Department Stores S. Nunn King & Spalding Partner, King & Spalding 191 Peachtree Street, N.E. Atlanta, Georgia 30303 R.S. Penske Penske Corporation Chairman of the Board 13400 Outer Drive, West and President, Penske Detroit, MI 48239-4001 Corporation F.H.T. Rhodes Cornell University President Emeritus, 3104 Snee Building Cornell University Ithaca, NY 14853 A.C. Sigler Champion International Retired Chairman of the Corporation Board and CEO 1 Champion Plaza and former Director, Stamford, CT 06921 Champion International Corporation D.A. Warner III J. P. Morgan Chase & Co., Chairman of the Board 270 Park Avenue The Chase Manhattan Bank and New York, NY 10017-2070 Morgan Guaranty Trust Co. of New York Citizenship P. Fresco Italy Andrea Jung Canada All Others U.S.A.
NATIONAL BROADCASTING COMPANY HOLDING, INC. EXECUTIVE OFFICERS PRESENT NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION - ---- ---------------- --------------------- Robert C. Wright National Broadcasting Company, Inc. Chairman, Chief 30 Rockefeller Plaza Executive Officer New York, NY 10112 Andrew Lack National Broadcasting Company, Inc. President, Chief 30 Rockefeller Plaza Operating Officer New York, NY 10112 Mark Vachon National Broadcasting Company, Inc. Vice President, 30 Rockefeller Plaza Treasurer New York, NY 10112 Brian O'Leary National Broadcasting Company, Inc. Assistant Treasurer 30 Rockefeller Plaza New York, NY 10112 Benjamin Heineman, Jr. General Electric Company Secretary 3135 Easton Turnpike Fairfield, CT 06431 Eliza Fraser General Electric Company Assistant Secretary 3135 Easton Turnpike Fairfield, CT 06431 Elizabeth Newell National Broadcasting Company, Inc. Assistant Secretary 30 Rockefeller Plaza New York, NY 10112
SCHEDULE C GENERAL ELECTRIC COMPANY DIRECTORS
PRESENT NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION - ---- ---------------- ---------------------- J.I. Cash, Jr. Harvard Business School Professor of Business Morgan Hall Administration-Graduate Soldiers Field Road School of Business Boston, MA 02163 Administration, Harvard University S.S. Cathcart 222 Wisconsin Avenue Retired Chairman, Suite 103 Illinois Tool Works Lake Forest, IL 60045 D.D. Dammerman General Electric Company Vice Chairman of the Board and 3135 Easton Turnpike Executive Officer, General Fairfield, CT 06431 Electric Company; Chairman, General Electric Capital Services, Inc. P. Fresco Fiat SpA Chairman of the Board, via Nizza 250 Fiat SpA 10126 Torino, Italy A.M. Fudge 4 Lowlyn Road Former Executive Vice President Westport, CT 06880 Kraft Foods, Inc. C.X. Gonzalez Kimberly-Clark de Mexico, Chairman of the Board S.A. de C.V. and Chief Executive Officer, Jose Luis Lagrange 103, Kimberly-Clark de Mexico, Tercero Piso S.A. de C.V. Colonia Los Morales Mexico, D.F. 11510, Mexico J.R. Immelt General Electric Company Chairman of the Board 3135 Easton Turnpike and Chief Executive Fairfield, CT 06431 Officer, General Electric Company A. Jung Avon Products, Inc. Chairman and Chief 1345 Avenue of the Americas Executive Officer, New York, NY 10105 Avon Products, Inc. K.G. Langone Invemed Associates, Inc. Chairman, President and Chief 375 Park Avenue Executive Officer, New York, NY 10152 Invemed Associates, Inc. R.B. Lazarus Ogilvy & Mather Worldwide Chairman and Chief 309 West 49th Street Executive Officer New York, NY 10019-7316 S.G. McNealy Sun Microsystems, Inc. Chairman, President and Chief 901 San Antonio Road Executive Officer, Palo Alto, CA 94303-4900 Sun Microsystems, Inc. G.G. Michelson Federated Department Stores Former Member of the 151 West 34th Street Board of Directors, New York, NY 10001 Federated Department Stores S. Nunn King & Spalding Partner, King & Spalding 191 Peachtree Street, N.E. Atlanta, Georgia 30303 R.S. Penske Penske Corporation Chairman of the Board 13400 Outer Drive, West and President, Penske Detroit, MI 48239-4001 Corporation F.H.T. Rhodes Cornell University President Emeritus, 3104 Snee Building Cornell University Ithaca, NY 14853 G.L. Rogers General Electric Company Vice Chairman of the Board and 3135 Easton Turnpike Executive Officer, General Fairfield, CT 06431 Electric Company A.C. Sigler Champion International Retired Chairman of the Corporation Board and CEO 1 Champion Plaza and former Director, Stamford, CT 06921 Champion International Corporation D.A. Warner III J. P. Morgan Chase & Co., Retired Chairman of the Board The Chase Manhattan Bank and Morgan Guaranty Trust Co. of New York 345 Park Avenue New York, NY 10154 R.C. Wright National Broadcasting Company, Inc. Vice Chairman of the Board and 30 Rockefeller Plaza Executive Officer, General New York, NY 10112 Electric Company; Chairman and Chief Executive Officer, National Broadcasting Company, Inc. Citizenship P. Fresco Italy C. X. Gonzalez Mexico Andrea Jung Canada All Others U.S.A.
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS
PRESENT NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION - ---- ---------------- -------------------- J.R. Immelt General Electric Company Chairman of the Board and 3135 Easton Turnpike Chief Executive Officer Fairfield, CT 06431 P.D. Ameen General Electric Company Vice President and Comptroller 3135 Easton Turnpike Fairfield, CT 06431 J.R. Bunt General Electric Company Vice President and Treasurer 3135 Easton Turnpike Fairfield, CT 06431 D.C. Calhoun General Electric Company Senior Vice President - 1 Neumann Way GE Aircraft Engines Cincinnati, OH 05215 J.P. Campbell General Electric Company Vice President - Appliance Park GE Appliances Louisville, KY 40225 W.J. Conaty General Electric Company Senior Vice President - 3135 Easton Turnpike Human Resources Fairfield, CT 06431 D.D. Dammerman General Electric Company Vice Chairman of the Board and 3135 Easton Turnpike Executive Officer, General Fairfield, CT 06431 Electric Company; Chairman, General Electric Capital Services, Inc. S.C. Donnelly General Electric Company Senior Vice President - One Research Circle Corporate Research Niskayuna 12309 and Development M.J. Espe General Electric Company Senior Vice President - Nela Park GE Lighting Cleveland, OH 44112 Y. Fujimori General Electric Company Senior Vice President - 1 Plastics Avenue GE Plastics Pittsfield, MA 01201 B.W. Heineman, Jr. General Electric Company Senior Vice President - 3135 Easton Turnpike General Counsel and Secretary Fairfield, CT 06431 J.M. Hogan General Electric Company Senior Vice President - P.O. Box 414 GE Medical Systems Milwaukee, WI 53201 R.A. Jeffe General Electric Company Senior Vice President - 3135 Easton Turnpike Corporate Business Fairfield, CT 06431 Development J. Krenicki, Jr. General Electric Company Vice President - 2901 East Lake Road GE Transportation Systems Erie, PA 16531 R.W. Nelson General Electric Company Vice President - 3135 Easton Turnpike Corporate Financial Planning Fairfield, CT 06431 and Analysis G.M. Reiner General Electric Company Senior Vice President - 3135 Easton Turnpike Chief Information Officer Fairfield, CT 06431 J.G. Rice General Electric Company Senior Vice President - 1 River Road GE Power Systems Schenectady, NY 12345 G.L. Rogers General Electric Company Vice Chairman of the Board 3135 Easton Turnpike and Executive Officer Fairfield, CT 06431 K.S. Sherin General Electric Company Senior Vice President - Finance 3135 Easton Turnpike and Chief Financial Officer Fairfield, CT 06431 L.G. Trotter General Electric Company Senior Vice President - 41 Woodford Avenue GE Industrial Systems Plainville, CT 06062 W.A. Woodburn General Electric Company Senior Vice President - 3135 Easton Turnpike GE Specialty Materials Fairfield, CT 06431 R.C. Wright National Broadcasting Company, Inc. Vice Chairman of the Board and 30 Rockefeller Plaza Executive Officer, General New York, NY 10112 Electric Company; Chairman and Chief Executive Officer, National Broadcasting Company, Inc. Citizenship Yoshiaki Fujimori Japan All Others U.S.A.
EXHIBIT INDEX Exhibit No. Description of Exhibit - ----------- ----------------------- Exhibit 1 Joint Filing Agreement by and among National Broadcasting Company, Inc., National Broadcasting Company Holding, Inc. and General Electric Company, dated February 14, 2002. Exhibit 2 Series G Preferred Stock Agreement by and between TiVo, Inc., and NBC Multimedia, Inc., dated as of April 16, 1999. Exhibit 3 Sixth Amended and Restated Investor Rights Agreement by and among TiVo, Inc., and the purchasers of the Company's Series A, B, C, D, E, F and G Preferred Stock and Registrable Common Stock, dated as of April 16, 1999. Exhibit 4 Amended and Restated Certificate of Incorporation of TiVo Inc. filed on April 15, 1999. Exhibit 5 Note and Warrant Purchase Agreement, dated as of August 28, 2001 between NBC and the TiVo Inc. Exhibit 6 Registration Rights Agreement, dated as of August 28, 2001, between NBC and TiVo Inc. Exhibit 7 Letter agreement, dated as of August 28, 2001, between NBC and TiVo Inc. Exhibit 8 Advertising Agreement between NBC and the Company, dated as of August 28, 2001. Exhibit 9 Warrant Agreement (for One Year Warrants), dated as of August 28, 2001, between TiVo Inc. and The Bank of New York as Warrant Agent. Exhibit 10 Warrant Agreement (for Five Year Terminable Warrants), dated as of August 28, 2001, between TiVo Inc. and The Bank of New York as Warrant Agent. Exhibit 11 Warrant Agreement (for Five Year Warrants), dated as of August 28, 2001, between TiVo Inc. and The Bank of New York as Warrant Agent. Exhibit 12 Indenture, dated as of August 28, 2001, between TiVo, Inc. as Issuer and The Bank of New York, as Trustee for 7% Convertible Senior Notes Due 2006. Exhibit 13 7% Convertible Senior Notes due 2006 No. CSN-17 (CUSIP no. 888706AB4) Exhibit 14 Warrant Certificate No. FYW-17 (CUSIP No. 888706 12 4) (Five Year Warrant) Exhibit 15 Warrant Certificate No. OYW-17 (Unit CUSIP No. 888706 40 5; Warrant CUSIP No. 888-706 15 7) (One Year Warrant) Exhibit 16 Warrant Certificate No. FYTW-17 (Unit CUSIP No. 888706 40 5; Warrant CUSIP No. 888706 14 0) (Five Year Terminable Warrant). Exhibit 17 Nominee Agreement, dated as of September 20, 2000, between David Zaslav and National Broadcasting Company, Inc. EX-1 3 joint.txt JOINT AGREEMENT Exhibit 1 JOINT FILING AGREEMENT This will confirm the agreement by and among all the undersigned that the Schedule 13D filed on or about this date and any amendments thereto with respect to beneficial ownership by the undersigned of shares of the Common Stock, par value $0.01 per share, of TiVo Inc. is being filed on behalf of each of the undersigned in accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934. This agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Dated: February 14, 2002 GENERAL ELECTRIC COMPANY By: /s/ Robert Healing -------------------------- Name: Robert Healing Title: Attorney-in-Fact NATIONAL BROADCASTING COMPANY HOLDING, INC. By: /s/ Elizabeth A. Newell ----------------------------- Name: Elizabeth A. Newell Title: Assistant Secretary NATIONAL BROADCASTING COMPANY, INC. By: /s/ Elizabeth A. Newell ------------------------------ Name: Elizabeth A. Newell Title: Assistant Secretary EX-2 4 seriesg.txt SERIES G Exhibit 2 TIVO INC. SERIES G PREFERRED STOCK PURCHASE AGREEMENT TABLE OF CONTENTS Page SECTION 1. Agreement To Sell And Purchase.................................1 1.1 Authorization of Shares........................................1 1.2 Sale and Purchase..............................................1 SECTION 2. CLOSING, DELIVERY AND PAYMENT..................................1 2.1 Closing........................................................1 2.2 Delivery.......................................................2 SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................2 3.1 Organization, Good Standing and Qualification..................2 3.2 Capitalization; Voting Rights..................................2 3.3 Authorization; Binding Obligations.............................3 3.4 Patents and Trademarks.........................................3 3.5 Compliance with Other Instruments..............................4 3.6 Litigation.....................................................4 3.7 Proprietary Information and Inventions Agreements..............5 3.8 Compliance with Laws; Permits..................................5 3.9 Offering Valid.................................................5 3.10 Full Disclosure................................................5 3.11 Related-Party Transactions.....................................6 3.12 Employee Compensation Plans....................................6 3.13 Employee Relations.............................................6 3.14 Obligations of Management......................................6 3.15 Corporate Documents............................................6 3.16 Tax Returns, Payments and Elections............................6 3.17 Agreements; Action.............................................7 3.18 Absence of Certain Changes.....................................7 3.19 Registration Rights............................................8 3.20 Title to Property and Assets...................................8 3.21 Insurance......................................................9 3.22 Year 2000 Compliance...........................................9 SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER....................9 4.1 Requisite Power and Authority..................................9 4.2 Investment Representations.....................................9 4.3 Transfer Restrictions.........................................10 SECTION 5. Conditions To Closing.........................................10 5.1 Conditions to Purchaser's Obligations at the Closing..........10 5.2 Conditions to Obligations of the Company......................11 SECTION 6. Miscellaneous.................................................12 6.1 Governing Law.................................................12 6.2 Survival......................................................12 6.3 Successors and Assigns........................................12 6.4 Entire Agreement..............................................12 6.5 Severability..................................................12 6.6 Amendment and Waiver..........................................12 6.7 Delays or Omissions...........................................12 6.8 Notices.......................................................13 6.9 Expenses......................................................13 6.10 Titles and Subtitles..........................................13 6.11 Counterparts..................................................13 6.12 Broker's Fees.................................................13 6.13 Pronouns......................................................13 6.14 California Corporate Securities Law...........................13 TIVO INC. SERIES G PREFERRED STOCK PURCHASE AGREEMENT THIS SERIES G PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of April 16, 1999, by and among TiVo Inc., a Delaware corporation (the "Company") and NBC Multimedia, Inc. ("Purchaser"). RECITALS WHEREAS, the Company has authorized the sale and issuance of an aggregate of One Million Thirteen Thousand Five Hundred Thirteen (1,013,513) shares of its Series G Preferred Stock (the "Shares"); WHEREAS, Purchaser desires to purchase the Shares on the terms and conditions set forth herein; and WHEREAS, the Company desires to issue and sell the Shares to Purchaser on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the parties hereto agree as follows: SECTION 1 Agreement To Sell And Purchase. 1.1 Authorization of Shares. On or prior to the date hereof, the Company shall have authorized (i) the sale and issuance to Purchaser of the Shares and (ii) the issuance of such shares of Common Stock to be issued upon conversion of the Shares (the "Conversion Shares"). The Shares and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate of Incorporation of the Company, as amended, in the form attached hereto as Exhibit B (the "Restated Certificate"). 1.2 Sale and Purchase. Subject to the terms and conditions hereof, at the Closing (as hereinafter defined) the Company hereby agrees to issue and sell to Purchaser, and Purchaser agrees to purchase from the Company, the number of Shares set forth opposite Purchaser's name on Exhibit A, at a purchase price of Seven Dollars and Forty Cents ($7.40) per share. SECTION 2 CLOSING, DELIVERY AND PAYMENT. 2.1 Closing. The closing of the sale and purchase of the Shares under this Agreement (the "Closing") shall take place at 10:00 a.m. on the date hereof, at the offices of Cooley Godward LLP, 5 Palo Alto Square, 3000 El Camino Real, Palo Alto, California 94306 or at such other time or place as the Company and Purchaser may mutually agree (such date is hereinafter referred to as the "Closing Date"). 2.2 Delivery. At the Closing, subject to the terms and conditions hereof, the Company will deliver to Purchaser certificates representing the number of Shares to be purchased at the Closing by Purchaser, against payment of the purchase price therefor by check, wire transfer made payable to the order of the Company, cancellation of indebtedness or any combination of the foregoing. SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth on a Schedule of Exceptions delivered by the Company to Purchaser at the Closing, the Company hereby represents and warrants to Purchaser as of the date of this Agreement as follows: 3.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own and operate its properties and assets, to execute and deliver this Agreement and the Investor Rights Agreement (collectively, the "Related Agreements"), to issue and sell the Shares and the Conversion Shares and to carry out the provisions of this Agreement, the Related Agreements and the Restated Certificate and to carry on its business as presently conducted and as presently proposed to be conducted. The Company is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business. The Company owns no equity securities of any other corporation, limited partnership or similar entity. 3.2 Capitalization; Voting Rights. The authorized capital stock of the Company, immediately prior to the Closing, will consist of Forty Million (40,000,000) shares of Common Stock (par value $.001 per share), Eight Million Four Hundred Twenty-Six Thousand Forty-Two (8,426,042) shares of which are issued and outstanding, and Eighteen Million (18,000,000) shares of Preferred Stock (par value $.001 per share), Five Million Two Hundred Thousand (5,200,000) of which are designated Series A Preferred Stock, Five Million (5,000,000) of which are issued and outstanding, Four Million Four Hundred Thousand (4,400,000) of which are designated Series B Preferred Stock, Three Million Six Hundred Sixty Thousand Nine Hundred Fourteen (3,660,914) of which are issued and outstanding, Four Million (4,000,000) of which are designated Series C Preferred Stock, Two Million Five Hundred Thirteen Thousand Five Hundred Thirteen (2,513,513) of which are issued and outstanding, Two Million Five Hundred Thousand (2,500,000) of which are designated Series D Preferred Stock, One Million Three Hundred Fifty-Eight Thousand Six Hundred Ninety-Five (1,358,695) of which are issued and outstanding, Three Hundred Thousand (300,000) of which are designated Series E Preferred Stock, Two Hundred Seventy Thousand Two Hundred Seventy (270,270) of which are issued and outstanding, Five Hundred Thousand (500,000) of which are designated Series F Preferred Stock, Four Hundred Five Thousand Four Hundred Five (405,405) of which are issued and outstanding, and One Million One Hundred Thousand (1,100,000) of which are designated Series G Preferred Stock, none of which are outstanding. All issued and outstanding shares of the Company's Common Stock (a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. The rights, preferences, privileges and restrictions of the Shares are as stated in the Restated Certificate. Each series of Preferred Stock is initially convertible into Common Stock on a one-for-one basis. The Conversion Shares have been duly and validly reserved for issuance. Except as may be granted pursuant to the Related Agreements, stock awards and options to purchase shares of the Company's Common Stock granted pursuant to the Company's 1997 Equity Incentive Plan and 1999 Equity Incentive Plan, and outstanding warrants to purchase 81,522 shares of the Company's Common Stock, 52,083 shares of the Company's Series A Preferred Stock, 60,813 shares of the Company's Series B Preferred Stock, 324,325 shares of the Company's Series C Preferred Stock and 543,478 shares of the Company's Series D Preferred Stock, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or shareholder agreements, or agreements of any kind for the purchase or acquisition from the Company of any of its securities. The Company has reserved 6,500,000 shares of Common Stock for issuance to employees, officers or directors of, or consultants or advisors to the Company pursuant to the Company's 1997 Equity Incentive Plan and 1999 Equity Incentive Plan, of which 2,067,288 remain available for future grant. When issued in compliance with the provisions of this Agreement and the Restated Certificate, the Shares and the Conversion Shares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. Except as contained in the Related Agreements and the Restated Charter, or as set forth in the Schedule of Exceptions, the Company is not aware of any written agreement or other understandings relating to the voting of its securities. 3.3 Authorization; Binding Obligations. All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization of this Agreement and the Related Agreements, the performance of all obligations of the Company hereunder and thereunder at the Closing and the authorization, sale, issuance and delivery of the Shares pursuant hereto and the Conversion Shares pursuant to the Restated Certificate has been taken or will be taken prior to the Closing. The Agreement and the Related Agreements, when executed and delivered, will be valid and binding obligations of the Company enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors' rights; (b) general principles of equity that restrict the availability of equitable remedies; and (c) to the extent that the enforceability of the indemnification provisions in Section 2.9 of the Investor Rights Agreement may be limited by applicable laws. The sale of the Shares and the subsequent conversion of the Shares into Conversion Shares are not and will not be subject to any preemptive rights or rights of first refusal, except as set forth in the Company's Bylaws and those rights which have been waived prior to the Closing. 3.4 Patents and Trademarks. Schedule 3.4 includes a list of all patents, patent applications, registered copyrights and trademarks of the Company existing as of the date hereof. The Company owns or possesses sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, information and other proprietary rights and processes necessary for its business as now conducted and as proposed to be conducted, and such conduct of its business does not, to the Company's knowledge, infringe upon the rights of others. There are no outstanding options, licenses or agreements with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information and other proprietary rights and processes of any third party which are necessary to the operation of the Company's products, other than such licenses or agreements arising from the purchase of "off the shelf" or standard products. The Company has not received any communications alleging that the Company has violated or, by conducting its business as proposed, would violate any of the patents, trademarks, service marks, trade names, copyrights or trade secrets or other proprietary rights of any other person or entity. The Company is not aware that any of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with their duties to the Company or that would conflict with the Company's business as proposed to be conducted. Neither the execution nor delivery of this Agreement, nor the carrying on of the Company's business by the employees of the Company, nor the conduct of the Company's business as proposed, will, to the Company's knowledge, conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrument under which any employee is now obligated. The Company does not believe it is or will be necessary to utilize any inventions, trade secrets or proprietary information of any of its employees made prior to their employment by the Company, except for inventions, trade secrets or proprietary information that have been assigned to the Company. 3.5 Compliance with Other Instruments. The Company is not in violation or default of any term of its Restated Certificate or Bylaws, or of any provision of any mortgage, indenture, contract, agreement, instrument or contract to which it is party or by which it is bound or of any judgment, decree, order, writ or any statute, rule or regulation applicable to the Company which would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company. The execution, delivery, and performance of and compliance with this Agreement, and the Related Agreements, and the issuance and sale of the Shares pursuant hereto and of the Conversion Shares pursuant to the Restated Certificate, will not, with or without the passage of time or giving of notice, result in any such material violation, or be in conflict with or constitute a default under any such term, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any permit license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties. 3.6 Litigation. There is no action, suit, proceeding or investigation pending or to the Company's knowledge currently threatened against the Company that questions the validity of this Agreement, or the Related Agreement or the right of the Company to enter into any of such agreements, or to consummate the transactions contemplated hereby or thereby, or which might result, either individually or in the aggregate, in any material adverse change in the assets, condition, affairs or prospects of the Company, financially or otherwise, or any change in the current equity ownership of the Company, nor is the Company aware that there is any basis for the foregoing. The foregoing includes, without limitation, actions pending or threatened (or any basis therefor known to the Company) involving the prior employment of any of the Company's employees, their use in connection with the Company's business of any information or techniques allegedly proprietary to any of their former employers, or their obligations under any agreements with prior employers. The Company is not a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit, proceeding or investigation by the Company currently pending or which the Company intends to initiate. 3.7 Proprietary Information and Inventions Agreements. Each former and current employee and officer of the Company has executed a Proprietary Information and Inventions Agreement in the form of Exhibit D attached hereto. 3.8 Compliance with Laws; Permits. The Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties which violation would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company. No governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of this Agreement and the issuance of the Shares or the Conversion Shares, except such as has been duly and validly obtained or filed, or with respect to any filings that must be made after the Closing, as will be filed in a timely manner. The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which could materially and adversely affect the business, properties, prospects or financial condition of the Company and believes it can obtain, without undue burden or expense, any similar authority for the conduct of its business as planned to be conducted. The Company is not in material default under any such franchises, permits and licenses. 3.9 Offering Valid. Assuming the accuracy of the representations and warranties of Purchaser contained in Section 4.2 hereof, the offer, sale and issuance of the Shares and the Conversion Shares will be exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act") and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws. Neither the Company nor any agent on its behalf has solicited or will solicit any offers to sell or has offered to sell or will offer to sell all or any part of the Shares to any person or persons so as to bring the sale of such Shares by the Company within the registration provisions of the Securities Act or any state securities laws. 3.10 Full Disclosure. The Company has fully provided Purchaser with all the information which Purchaser has requested for deciding whether to purchase the Shares and all information which the Company believes is reasonably necessary to enable Purchaser to make such decision, including audited financial statements for the period ending December 31, 1998 and unaudited financial statements for interim and monthly periods ending in and as of dates in 1999 (collectively, the "Financial Statements"). The Financial Statements are accurate in all material respects and present fairly the financial position of the Company as of the respective dates thereof and for the periods covered thereby. The Financial Statements have been prepared in accordance with the GAAP, applied on a consistent basis throughout the periods covered (except that unaudited financial statements do not contain footnotes and are subject to normal adjustments which will not in aggregate be material in magnitude). This Agreement, the Exhibits hereto, the Related Agreements, certificates and other documents made or delivered in connection herewith, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein or herein in view of the circumstances under which they were made not misleading; provided however, that with respect to financial projections, the Company represents only that such projections were prepared in good faith and the Company reasonably believes there is a reasonable basis for such projections. 3.11 Related-Party Transactions. No employee, officer or director of the Company or member of his or her immediate family is indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any of them. The Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation. No director, officer or member of his or her immediate family is directly or indirectly interested in any material contract with the Company. 3.12 Employee Compensation Plans. The Company is not a party to nor bound by any currently effective employment contracts, deferred compensation agreements, bonus plans, incentive plans, profit sharing plans, retirement agreements or other employee compensation agreements. Subject to applicable law, the employment offer of each officer and employee of the Company is terminable at the will of the Company. 3.13 Employee Relations. The Company believes its relations with its employees are satisfactory. The Company's employees are not represented by any labor unions nor, to the Company's knowledge, is any union organization campaign in progress. To the best of its knowledge, the Company is not aware that any of its officers or employees intends to terminate employment, and the Company does not have a present intention to terminate the employment of any of its officers or employees. To the best of its knowledge, the Company has complied in all material respects with all applicable state and federal employment laws. 3.14 Obligations of Management. Each officer of the Company is currently devoting one hundred percent (100%) of his business time to the conduct of the business of the Company. The Company is not aware of any officer or key employee of the Company planning to work less than full time at the Company in the future. 3.15 Corporate Documents. The Company's Restated Certificate and Bylaws are in the form previously provided to Purchaser. 3.16 Tax Returns, Payments and Elections. The Company has timely filed all federal, state and local tax returns required to be filed by it through the date hereof, which returns are true and correct in all material respects, and has paid all taxes due thereon, and no tax deficiency has been determined adversely to the Company as of the date hereof. The Company has not made any elections pursuant to the Internal Revenue Code of 1986, as amended (the "Code"), other than elections that relate solely to methods of accounting, depreciation or amortization, that would have a material adverse effect on the Company, its financial condition, its business as presently conducted or proposed to be conducted or any of its properties or material assets. None of the Company's federal income tax returns and none of its state income or franchise tax or sales or use tax returns has ever been audited by governmental authorities. The Company has no knowledge or any liability of any tax to be imposed upon its properties or assets of the date of this Agreement that is not adequately provided for. 3.17 Agreements; Action. (a) Except for agreements contemplated hereby and agreements between the Company and its employees with respect to the sale of the Company's Common Stock, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof. (b) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $25,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising in the ordinary course of business which are in full force and effect as of the date of this Agreement), or (iii) agreements regarding the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights (other than indemnification obligations arising from purchase or sale agreements entered into in the ordinary course of business), or (v) otherwise material to the Company and to business as now conducted. (c) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities (other than trade payables in the ordinary course of business), (iii) made any loans or advances to any person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (d) For the purposes of subsections (b) and (c) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company, or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company. 3.18 Absence of Certain Changes. Since December 31, 1998, there has not been any event or condition of any character which has materially adversely affected the Company's business operations, assets, condition (financial or otherwise), liabilities or earnings including but not limited to: (a) any declaration, setting aside or payment or other distribution in respect of any of the Company's capital stock, or any direct or indirect redemption, purchase or other acquisition of any of such stock by the Company; (b) any waiver by the Company of a valuable right or of a material debt owed to it; (c) any material change or amendment to a contract or arrangement by which the Company or any of its assets or properties is bound or subject; (d) any damage, destruction or loss to any asset of the Company (whether or not covered by insurance) that, individually or in the aggregate, would have a material adverse effect on the business, properties, prospects or financial condition of the Company; (e) any commitment, transaction or other action by the Company other than in the ordinary course of business and consistent with past practice; (f) any sale or other disposition (including, without limitation, any pledge, mortgage, or transfer or discharge of a security interest or lien) of any material right, title or interest in or to any assets or properties of the Company or any revenues derived therefrom; (g) any creation, incurrence, assumption or guarantee by the Company of any indebtedness for money exceeding $50,000 (other than as set forth in Section 3.17 hereof); (h) any material adverse change in the financial condition, business or operations of the Company not reflected in the Financial Statements; (i) any material change in any compensation arrangement or agreement with any employee of the Company; (j) any authorization, approval, agreement or commitment to do any of the foregoing. 3.19 Registration Rights. Except as contemplated in the Related Agreements, the Company has not granted or agreed to grant any registration rights, including piggyback rights, to any person or entity. 3.20 Title to Property and Assets. The Company owns its property and assets free and clear of all mortgages, liens, loans and encumbrances, except such encumbrances and liens that arise in the ordinary course of business and do not materially impair the Company's ownership or use of such property or assets. With respect to the property or assets that it leases, the Company is in compliance with such leases, and to the best of its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances. 3.21 Insurance. The Company has in full force and effect fire and casualty insurance policies, with extended coverage, sufficient in amount (subject to reasonable deductibles) to allow it to replace any of its properties that might be damaged or destroyed. 3.22 Year 2000 Compliance. The Company represents and warrants that its products and the TiVo Service (excluding third party data and other inputs) are able to accurately process date data, including, but not limited to, calculating and sequencing from, into and between the twentieth century (through year 1999), the year 2000 and the twenty-first century, including leap year calculations. SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents and warrants to the Company as follows (such representations and warranties do not lessen or obviate the representations and warranties of the Company set forth in this Agreement): 4.1 Requisite Power and Authority. Purchaser has all necessary power and authority under all applicable provisions of law to execute and deliver this Agreement and the Related Agreements and to carry out their provisions. All action on Purchaser's part required for the lawful execution and delivery of this Agreement and the Related Agreements have been or will be effectively taken prior to the Closing. Upon their execution and delivery, this Agreement and the Related Agreements will be valid and binding obligations of Purchaser, enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors' rights, (b) general principles of equity that restrict the availability of equitable remedies, and (c) to the extent that the enforceability of the indemnification provisions of Section 2.9 of the Investor Rights Agreement may be limited by applicable laws. 4.2 Investment Representations. Purchaser understands that neither the Shares nor the Conversion Shares have been registered under the Securities Act. Purchaser also understands that the Shares are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part upon Purchaser's representations contained in the Agreement. Purchaser hereby represents and warrants as follows: (a) Purchaser Bears Economic Risk. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. Purchaser may bear the economic risk of this investment indefinitely unless the Shares (or the Conversion Shares) are registered pursuant to the Securities Act, or an exemption from registration is available. Purchaser understands that the Company has no present intention of registering the Shares, the Conversion Shares or any shares of its Common Stock. Purchaser also understands that there is no assurance that any exemption from registration under the Securities Act will be available and that, even if available, such exemption may not allow Purchaser to transfer all or any portion of the Shares or the Conversion Shares under the circumstances, in the amounts or at the times Purchaser might propose. (b) Acquisition for Own Account. Purchaser is acquiring the Shares and the Conversion Shares for Purchaser's own account for investment only, and not with a view towards their distribution. (c) Purchaser Can Protect Its Interest. By reason of its, or of its management's, business or financial experience, Purchaser has the capacity to protect its own interests in connection with the transactions contemplated in this Agreement, and the Related Agreements. Further, Purchaser is aware of no publication of any advertisement in connection with the transactions contemplated in the Agreement. (d) Accredited Investor. Purchaser is an accredited investor within the meaning of Regulation D under the Securities Act. (e) Company Information. Purchaser has had an opportunity to discuss the Company's business, management and financial affairs with directors, officers and management of the Company. Purchaser has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions of this investment. (f) Rule 144. Purchaser acknowledges and agrees that the Shares, and, if issued, the Conversion Shares may be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser has been advised or is aware of the provisions of Rule 144 promulgated under the Securities Act, as in effect from time to time, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things: the availability of certain current public information about the Company, the resale occurring following the required holding period under Rule 144 and the number of shares being sold during any three-month period not exceeding specified limitations. (g) Residence. If the Purchaser is an individual, then the Purchaser resides in the state identified in the address of the Purchaser set forth on Exhibit A; if the Purchaser is a partnership, corporation, or other entity, the office or offices of the Purchaser in which its investment decision was made is located at the address or addresses of the Purchaser set forth on Exhibit A. 4.3 Transfer Restrictions. Purchaser acknowledges and agrees that the Shares and, if issued, the Conversion Shares are subject to restrictions on transfer as set forth in the Investor Rights Agreement. SECTION 5. Conditions To Closing. 5.1 Conditions to Purchaser's Obligations at the Closing. Purchaser's obligations to purchase the Shares at the Closing are subject to the satisfaction, at or prior to the Closing, of the following conditions: (a) Representations and Warranties True; Performance of Obligations. The representations and warranties made by the Company in Section 3 hereof shall be true and correct in all material respects as of the Closing Date with the same force and effect as if they had been made as of the Closing Date, and the Company shall have performed all obligations and conditions herein required to be performed or observed by it on or prior to the Closing. (b) Legal Investment. On the Closing Date, the sale and issuance of the Shares and the proposed issuance of the Conversion Shares shall be legally permitted by all laws and regulations to which Purchaser and the Company are subject. (c) Filing of Restated Certificate. The Restated Certificate shall have been filed with the Secretary of State of the State of Delaware. (d) Corporate Documents. The Company shall have delivered to Purchaser or their counsel, copies of all corporate documents of the Company as Purchaser shall reasonably request. (e) Compliance Certificate. The Company shall have delivered to Purchaser a Compliance Certificate, executed by the President of the Company, dated the date of the Closing, to the effect that the conditions specified in subsections (a) and (c) of this Section 5.1 have been satisfied. (f) Investor Rights Agreement. A Sixth Amended and Restated Investor Rights Agreement substantially in the form attached hereto as Exhibit C shall have been executed and delivered by the parties thereto. (g) Legal Opinion. Purchaser shall have received from legal counsel to the Company an opinion addressed to it, dated as of the Closing Date, in substantially the form attached hereto as Exhibit E. (h) Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing hereby and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to Purchaser and its special counsel, and Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request. 5.2 Conditions to Obligations of the Company. The Company's obligation to issue and sell the Shares at each Closing is subject to the satisfaction, on or prior to the Closing, of the following conditions: (a) Representations and Warranties True. The representations and warranties made by Purchaser in Section 4 hereof shall be true and correct in all material respects at the date of the Closing, with the same force and effect as if they had been made on and as of said date. (b) Performance of Obligations. Purchaser shall have performed and complied with all agreements and conditions herein required to be performed or complied with by Purchaser on or before the Closing. (c) Filing of Restated Certificate. The Restated Certificate shall have been accepted for filing with the Secretary of State of the State of Delaware. (d) Investor Rights Agreement. A Sixth Amended and Restated Investor Rights Agreement substantially in the form attached hereto as Exhibit C shall have been executed and delivered by Purchaser. SECTION 6. Miscellaneous. 6.1 Governing Law. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements between California residents entered into and performed entirely in California. 6.2 Survival. The representations, warranties, covenants and agreements made herein shall survive any investigation made by Purchaser and the closing of the transactions contemplated hereby. All statements as to factual matters contained in any certificate or other instrument delivered by or on behalf of the Company pursuant hereto in connection with the transactions contemplated hereby shall be deemed to be representations and warranties by the Company hereunder solely as of the date of such certificate or instrument. 6.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of the Shares from time to time. 6.4 Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Related Agreements and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein. 6.5 Severability. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 6.6 Amendment and Waiver. (a) This Agreement may be amended or modified only upon the written consent of the Company and Purchaser. (b) The obligations of the Company and the rights of the holders of the Shares and the Conversion Shares under the Agreement may be waived only with the written consent of Purchaser. 6.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement, the Related Agreements or the Restated Certificate, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character on Purchaser's part of any breach, default or noncompliance under this Agreement, the Related Agreements or under the Restated Certificate or any waiver on such party's part of any provisions or conditions of the Agreement, the Related Agreements, or the Restated Certificate must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, the Related Agreements, the Restated Certificate, by law, or otherwise afforded to any party, shall be cumulative and not alternative. 6.8 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient, if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company at the address as set forth on the signature page hereof and to Purchaser at the address set forth on Exhibit A attached hereto or at such other address as the Company or Purchaser may designate by ten (10) days advance written notice to the other parties hereto. 6.9 Expenses. The Company shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of the Agreement. The Company shall, at the Closing, reimburse the reasonable fees of one special counsel for Purchaser, not to exceed $5,000, and shall reimburse such special counsel for reasonable expenses incurred in connection with the negotiation, execution, delivery and performance of this Agreement. 6.10 Titles and Subtitles. The titles of the sections and subsections of the Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 6.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 6.12 Broker's Fees. Each party hereto represents and warrants that no agent, broker, investment banker, person or firm acting on behalf of or under the authority of such party hereto is or will be entitled to any broker's or finder's fee or any other commission directly or indirectly in connection with the transactions contemplated herein. Each party hereto further agrees to indemnify each other party for any claims, losses or expenses incurred by such other party as a result of the representation in this Section 6.13 being untrue. 6.13 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties hereto may require. 6.14 California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION OR IN THE ABSENCE OF AN EXEMPTION FROM SUCH QUALIFICATION IS UNLAWFUL. PRIOR TO ACCEPTANCE OF SUCH CONSIDERATION BY THE COMPANY, THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION FROM SUCH QUALIFICATION BEING AVAILABLE. IN WITNESS WHEREOF, the parties hereto have executed this SERIES G PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: TIVO INC. By: /s/ Michael Ramsay ----------------------------- Michael Ramsay, President and Chief Executive Officer IN WITNESS WHEREOF, the parties hereto have executed this SERIES G PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof. PURCHASER NBC MULTIMEDIA, INC. By: /s/ Martin Yudkovitz --------------------------- Name: Martin Yudkovitz Title: President, NBC Interactive EXHIBIT A SERIES G PREFERRED STOCK PURCHASE AGREEMENT SCHEDULE OF PURCHASERS Aggregate Name Shares Purchase Price - ------------------------------------------------------------------------------ Closing: April 16, 1999 NBC MULTIMEDIA, INC. 1,013,513 $7,499,996.20 Address: 30 Rockefeller Plaza New York, NY 10112 Fax: (212) 664-5561 Attn: Peg Murphy With a copy to: Vice President, Corporate Law Group Fax: (212) 977-7165 Total: 1,013,513 $7,499,996.20 Index of Exhibits Schedule of Purchasers Exhibit A Restated Certificate Exhibit B Investor Rights Agreement Exhibit C Proprietary Information and Exhibit D Inventions Agreement Form of Legal Opinion Exhibit E EXHIBIT B AMENDED AND RESTATED CERTIFICATE OF INCORPORATION EXHIBIT C INVESTOR RIGHTS AGREEMENT EXHIBIT D FORM OF PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT TiVo Inc. PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT As an employee of TiVo Inc., its subsidiary or its affiliate (together, the "Company"), and as a condition of my employment by the Company and in consideration of the compensation now and hereafter paid to me, I agree to the following: 1. MAINTAINING CONFIDENTIAL INFORMATION. (a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm or corporation, without the written authorization of the Board of Directors of the Company, any trade secrets, confidential knowledge, data or other proprietary information of the Company ("Proprietary Information"). By way of illustration and not limitation, Proprietary Information shall include information relating to products, processes, know-how, designs, formulas, methods, samples, media and/or cell lines, developmental or experimental work, improvements, discoveries, plans for research, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers, and information regarding the skills and compensation of other employees of the Company. Proprietary Information shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (ii) is known by the receiving party at the time of receiving such information as evidenced by its records; (iii) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; or (v) is the subject of written permission to disclose provided by the disclosing party. (b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any proprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the Company any unpublished documents or any property belonging to my former or concurrent employers or companies unless previously and specifically consented to in writing by said employers or companies. (c) Third Party Information. I recognize that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company's part to maintain the confidentiality of such information and, in some cases, to use it only for certain limited purposes. I agree that I owe the Company and such third parties, both during the term of my employment and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except in a manner that is consistent with the Company's agreement with the third party) or use it for the benefit of anyone other than the Company or such third party (consistent with the Company's agreement with the third party), unless expressly authorized to act otherwise by an officer of the Company. 2. ASSIGNMENT OF INVENTIONS AND ORIGINAL WORKS. (a) Inventions and Original Works Retained by Me. I have attached hereto as Exhibit A a complete disclosure of all inventions, original works of authorship, developments, improvements, and trade secrets that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with the Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement. If disclosure of an item on Exhibit A would cause me to violate any prior confidentiality agreement, I understand that I am not to disclose such on Exhibit A but in the applicable space on Exhibit A I am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is provided on Exhibit A for such purpose. If no disclosure is attached, I represent that there are no such inventions. (b) Inventions and Original Works Assigned to the Company. I agree that I will make prompt written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company all my right, title and interest in and to any ideas, inventions, original works of authorship, developments, improvements or trade secrets which I may solely or jointly conceive or reduce to practice, or cause to be conceived or reduced to practice, during the period of my employment with the Company. I recognize that this Agreement does not require assignment of any invention which qualifies fully for protection under Section 2870 of the California Labor Code (hereinafter "Section 2870"), which provides as follows: (i) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (ii) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act (17 U.S.C., Section 101). (c) Inventions and Original Works Assigned to the United States. I hereby assign to the United States government all my right, title and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets whenever full title to same is required to be in the United States by a contract between the Company and the United States or any of its agencies. (d) Obtaining Letters Patent, Copyright Registrations and Other Protections. I will assist the Company in every proper way to obtain and enforce United States and foreign proprietary rights relating to any and all inventions, original works of authorship, developments, improvements or trade secrets of the Company in any and all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including appearing as a witness) the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such proprietary rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such proprietary rights to the Company or its designee. My obligation to assist the Company with respect to proprietary rights in any and all countries shall continue beyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my termination for the time actually spent by me at the Company's request on such assistance. In the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact, to act for and in my behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims of any nature whatsoever which I now or may hereafter have for infringement of any proprietary rights assigned to the Company. (e) Obligation to Keep the Company Informed. In addition to my obligations under paragraph 2(b) above, during the period of my employment and for one (1) year after termination of my employment for any reason, I will promptly disclose to the Company fully and in writing all patent applications filed by me or on my behalf, to the extent permitted by my subsequent employer (if any), related to the Company's business or to research or development which, during the period of my employment, had been performed by the Company or was demonstrably anticipated. At the time of each such disclosure, I will advise the Company in writing of any inventions therein that I believe fully qualify for protection under Section 2870; and I will at that time provide to the Company in writing all evidence necessary to substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties or use commercially, without my consent, any proprietary information disclosed in writing to the Company pursuant to this Agreement relating to inventions that qualify fully for protection under the provisions of Section 2870. I will preserve the confidentiality of any such invention that does not qualify fully for protection under Section 2870. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all proprietary information developed by me and all inventions made by me during the period of my employment at the Company, which records shall be available to and remain the sole property of the Company at all times. 3. NO CONFLICTING EMPLOYMENT; NO INDUCEMENT OF OTHER EMPLOYEES OR UNFAIR SOLICITATION OF CUSTOMERS. I agree that during the period of my employment by the Company I will not, without the Company's express written consent, engage in any other employment or business activity directly related to the business in which the Company is now involved or becomes involved, nor will I engage in any other activities which conflict with my obligations to the Company. For the period of my employment by the Company and for one (1) year after the date of termination of my employment with the Company, I will not induce any employee of the Company to leave the employ of the Company. After the termination of my employment with the Company, I will not make any use of any of the Company's Proprietary Information in soliciting the business of any customer of the Company (other than on behalf of the Company). If any restriction set forth in this Section is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable. 4. NO CONFLICTING OBLIGATIONS. I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement or obligation of mine relating to any time prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict herewith. 5. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, together with all copies thereof (in whatever medium recorded) belonging to the Company, its successors or assigns whether kept at the Company, home or elsewhere; such materials include, but are not limited to, any embodiment of the Company's Proprietary Information. Prior to leaving, I will cooperate with the Company in completing and signing the Company's termination statement for technical and management personnel confirming the above and my obligations under this Agreement. 6. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the Company, I hereby consent to the notification of my new employer of my rights and obligations under this Agreement. 7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and because I may have access to and become acquainted with the proprietary information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement. 8. GENERAL PROVISIONS. (a) Not an Employment Contract. I agree and understand that nothing in this Agreement shall confer any right with respect to continuation of my employment by the Company, nor shall it interfere in any way with my right or the Company's right to terminate my employment at any time, with or without cause. (b) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to the laws of the State of California, excluding conflicts of laws principles. I hereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me by the Company arising from or relating to this Agreement. (c) Entire Agreement. This Agreement, and Exhibit A attached hereto and hereby incorporated herein, sets forth the final, complete and exclusive agreement and understanding between the Company and me relating to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by both the Company and me. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement. (d) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining provisions will continue in full force and effect. (e) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors and its assigns. (f) Survival. The provisions of this Agreement shall survive the termination of my employment and the assignment of this Agreement by the Company to any successor in interest or other assignee. (g) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement. (h) Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery, or sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing. This Agreement shall be effective as of the first day of my employment with the Company, namely: __________, 199_. I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT. I HAVE READ THE AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED OUT EXHIBIT A TO THE AGREEMENT. Dated: ____________, 199___ ------------------------------------ Signature ------------------------------------ Name of Employee ------------------------------------ Address ------------------------------------ ACCEPTED AND AGREED TO: TiVo Inc. By:_____________________________ Michael Ramsay President and Chief Executive Officer EXHIBIT A TiVo Inc. 894 Ross Drive, Suite 100 Sunnyvale, CA 94089 Gentlemen: 1. Except as listed in Section 2 below the following is a complete disclosure of all inventions or improvements relevant to the subject matter of my employment by Hi-Tech Corporation (the "Company") that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by the Company: : No inventions or improvements. : See below. --------------------------------------------------------------------- : Additional sheets attached. 2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1 above with respect to inventions or improvements generally listed below, the proprietary rights and duty of confidentiality with respect to which I owe to the following party(ies): Invention or Improvement Party(ies) Relationship 1. ____________________________________________________________________ 2. ____________________________________________________________________ 3. ____________________________________________________________________ : Additional sheets attached. 3. I propose to bring to my employment the following devices, materials and documents of a former employer or other person to whom I have an obligation of confidentiality that are not generally available to the public, which materials and documents may be used in my employment pursuant to the express written authorization of my former employer or such other person (a copy of which is attached hereto): : No inventions or improvements. : See below. -------------------------------------------------------------------- : Additional sheets attached. Date:______________, 1999_ Very truly yours. ------------------------ EXHIBIT E FORM OF LEGAL OPINION EX-3 5 s427049.txt SIXTH AMENDMENT Exhibit 3 TIVO INC. SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT TABLE OF CONTENTS Page SECTION 1. GENERAL...............................................2 1.1 Definitions....................................................2 SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER................3 2.1 Restrictions on Transfer.......................................3 2.2 Demand Registration............................................4 2.3 Piggyback Registrations........................................5 2.4 Form S-3 Registration..........................................6 2.5 Expenses of Registration.......................................7 2.6 Obligations of the Company.....................................8 2.7 Termination of Registration Rights.............................9 2.8 Delay of Registration; Furnishing Information..................9 2.9 Indemnification...............................................10 2.10 Assignment of Registration Rights.............................12 2.11 Amendment of Registration Rights..............................12 2.12 "Market Stand-Off" Agreement..................................12 2.13 Rule 144 Reporting............................................13 SECTION 3. COVENANTS OF THE COMPANY.............................13 3.1 Basic Financial Information and Reporting.....................13 3.2 Inspection Rights.............................................14 3.3 Confidentiality of Records....................................15 3.4 Strategic Value I, L.P. Board Observer........................15 3.5 Vulcan Ventures Incorporated Board Observer...................15 3.6 Showtime Board Observer.......................................16 3.7 DIRECTV Board Seat............................................16 3.8 Reservation of Common Stock...................................17 3.9 Proprietary Information and Inventions Agreement..............17 3.10 Board of Directors............................................17 3.11 Termination of Covenants......................................17 SECTION 4. RIGHTS OF FIRST REFUSAL..............................17 4.1 Subsequent Offerings..........................................17 4.2 Exercise of Rights............................................18 4.3 Issuance of Equity Securities to Other Persons................18 4.4 Termination of Rights of First Refusal........................18 4.5 Transfer of Rights of First Refusal...........................18 4.6 Excluded Securities...........................................18 SECTION 5. MISCELLANEOUS........................................19 5.1 Governing Law.................................................19 5.2 Survival......................................................19 5.3 Successors and Assigns........................................19 5.4 Entire Agreement..............................................19 5.5 Severability..................................................19 5.6 Amendment and Waiver..........................................19 5.7 Delays or Omissions...........................................20 5.8 Notices.......................................................20 5.9 Titles and Subtitles..........................................20 5.10 Counterparts..................................................20 TIVO INC. SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT THIS SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement") is entered into as of the 16 day of April, 1999, by and among TIVO INC., a Delaware corporation (the "Company") and the purchasers of the Company's Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series G Preferred Stock (together, the "Series Preferred") and Registrable Common Stock set forth on Exhibit A hereto. The purchasers of the Series Preferred and Registrable Common Stock shall be referred to hereinafter as the "Investors" and each individually as an "Investor." RECITALS WHEREAS, certain of the Investors hold shares of the Company's Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Registrable Common Stock and possess registration rights, information rights and other rights pursuant to that certain Fifth Amended and Restated Investor Rights Agreement dated as of April 13, 1999, between the Company and such Investors (the "Prior Agreement"); WHEREAS, the Company proposes to sell and issue up to One Million Thirteen Thousand Five Hundred Thirteen (1,013,513) shares of its Series G Preferred Stock pursuant to that certain Series G Preferred Stock Purchase Agreement by and between the Company and the purchasers listed on Exhibit A thereto (the "Purchase Agreement"); WHEREAS, the undersigned Investors who hold the Company's Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Registrable Common Stock desire to terminate the Prior Agreement and to accept the rights created pursuant hereto in lieu of rights granted to them under the Prior Agreement; and WHEREAS, in order to induce the Company and certain of the Investors to enter into the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall amend and restate the Prior Agreement and shall extend to the Investors the registration rights, information rights and other rights as set forth below. NOW THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement and in the Purchase Agreement, the parties mutually agree as follows: SECTION 1. GENERAL 1.1 Definitions. As used in this Agreement the following terms shall have the following respective meanings: "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Form S-3" means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC. "Holder" means any person owning of record Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 2.10 hereof. "Initial Offering" means the Company's first firm commitment underwritten public offering of its Common Stock registered under the Securities Act. "Register," "registered," and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or document. "Registrable Common Stock" means Common Stock of the Company issued to DIRECTV, Inc., a California corporation ("DIRECTV"), pursuant to that Marketing Agreement dated April 13, 1999, by and between the Company and DIRECTV. "Registrable Securities" means (a) Common Stock of the Company issued or issuable upon conversion of the Shares; (b) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, such above-described securities and (c) the Registrable Common Stock. Notwithstanding the foregoing, Registrable Securities shall not include any securities sold by a person to the public either pursuant to a registration statement or Rule 144 or sold in a private transaction in which the transferor's rights under Section 2 of this Agreement are not assigned. "Registrable Securities then outstanding" shall be the number of shares determined by calculating the total number of shares of the Company's Common Stock that are Registrable Securities and either (a) are then issued and outstanding or (b) are issuable pursuant to then exercisable or convertible securities. "Registration Expenses" shall mean all expenses incurred by the Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company). "SEC" or "Commission" means the Securities and Exchange Commission. "Securities Act" shall mean the Securities Act of 1933, as amended. "Selling Expenses" shall mean all underwriting discounts and selling commissions applicable to the sale. "Shares" shall mean the Company's Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock held by the Investors listed on Exhibit A hereto and their permitted assigns. SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER. 2.1 Restrictions on Transfer. (a) Each Holder agrees not to make any disposition of all or any portion of the Shares or Registrable Securities unless and until: (i) There is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or (ii) (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B) such Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a reasonably detailed written statement of the circumstances surrounding the proposed disposition (such statement to include, without limitation, the name of the transferee, the number of shares to be transferred, the price per share and type of consideration to be received in the transfer (except for transfers to affiliates that do not manufacture or distribute customizable personal television systems or services) and the timing of such transfer) and (C) if reasonably requested by the Company, such Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144 except in unusual circumstances. (iii) Notwithstanding the provisions of paragraphs (i) and (ii) above, no such registration statement or opinion of counsel shall be necessary for a transfer by a Holder (A) which is a partnership to its partners or former partners in accordance with partnership interests, (B) which is a corporation to its stockholders in accordance with their interest in the corporation, (C) which is a limited liability company to its members or former members in accordance with their interest in the limited liability company, (D) to the Holder's family member or trust for the benefit of an individual Holder, or (E) to an affiliate of Holder that does not manufacture or distribute customizable personal television systems or services; provided that in each case the transferee will be subject to the terms of this Agreement to the same extent as if he were an original Holder hereunder. (b) Each certificate representing Shares or Registrable Securities shall (unless otherwise permitted by the provisions of the Agreement) be stamped or otherwise imprinted with a legend substantially similar to the following (in addition to any legend required under applicable state securities laws or as provided elsewhere in this Agreement): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN INVESTOR RIGHTS AGREEMENT, AS AMENDED, THAT CONTAINS CERTAIN RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES, INCLUDING A MARKET STAND-OFF AGREEMENT. A COPY OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION. (c) The Company shall be obligated to reissue promptly unlegended certificates at the request of any holder thereof if the holder shall have obtained an opinion of counsel (which counsel may be counsel to the Company) reasonably acceptable to the Company to the effect that the securities proposed to be disposed of may lawfully be so disposed of without registration, qualification or legend. (d) Any legend endorsed on an instrument pursuant to applicable state securities laws and the stop-transfer instructions with respect to such securities shall be removed upon receipt by the Company of an order of the appropriate blue sky authority authorizing such removal. 2.2 Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least thirty percent (30%) of the Registrable Securities then outstanding (the "Initiating Holders") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities having an aggregate offering price to the public of at least $10,000,000 (a "Qualified Public Offering"), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered. (b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. (c) The Company shall not be required to effect a registration pursuant to this Section 2.2: (i) prior to the earlier of September 1, 2001 or 180 days after the effective date of a registration statement pertaining to the Initial Offering; and (ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective. 2.3 Piggyback Registrations. The Company shall notify all Holders of Registrable Securities in writing at least thirty (30) days prior to the filing of any registration statement under the Securities Act for purposes of a public offering of securities of the Company (including, but not limited to, registration statements relating to secondary offerings of securities of the Company, but excluding registration statements relating to employee benefit plans or with respect to corporate reorganizations or other transactions under Rule 145 of the Securities Act) and will afford each such Holder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Holder. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within fifteen (15) days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the intended method of disposition of the Registrable Securities by such Holder. If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein. (a) Underwriting. If the registration statement under which the Company gives notice under this Section 2.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities in the above-described notice. In such event, the right of any such Holder to be included in a registration pursuant to this Section 2.3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of the Agreement, if the underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated, first, to the Company; second, to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to any stockholder of the Company (other than a Holder) on a pro rata basis. No such reduction shall (i) reduce the securities being offered by the Company for its own account to be included in the registration and underwriting, or (ii) reduce the amount of securities of the selling Holders included in the registration below thirty percent (30%) of the total amount of securities included in such registration, unless such offering is the Initial Offering and such registration does not include shares of any other selling stockholders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding sentence. (b) Right to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.3 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.5 hereof. 2.4 Form S-3 Registration. In case the Company shall receive from any Holder or Holders of at least 100,000 shares of Registrable Securities a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company will: (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders of Registrable Securities; and (b) as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.4: (i) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders, or (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $3,000,000, or (iii) if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registrations on Form S-3 for the Holders pursuant to this Section 2.4, or (iv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance. (c) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. All such Registration Expenses incurred in connection with registrations requested pursuant to this Section 2.4 after the first four (4) registrations shall be paid by the selling Holders pro rata in proportion to the number of shares sold by each. 2.5 Expenses of Registration. Except as specifically provided herein, all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Section 2.2 or any registration under Section 2.3 or Section 2.4 herein shall be borne by the Company. All Selling Expenses incurred in connection with any registrations hereunder, shall be borne by the holders of the securities so registered pro rata on the basis of the number of shares so registered. The Company shall not, however, be required to pay for expenses of any registration proceeding begun pursuant to Section 2.2 or 2.4, the request of which has been subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is based upon material adverse information concerning the Company of which the Initiating Holders were not aware at the time of such request or (b) the Holders of a majority of Registrable Securities agree to forfeit their right to one requested registration pursuant to Section 2.2 or Section 2.4, as applicable, in which event such right shall be forfeited by all Holders. If the Holders are required to pay the Registration Expenses, such expenses shall be borne by the holders of securities (including Registrable Securities) requesting such registration in proportion to the number of shares for which registration was requested. If the Company is required to pay the Registration Expenses of a withdrawn offering pursuant to clause (a) above, then the Holders shall not forfeit their rights pursuant to Section 2.2 or Section 2.4 to a demand registration. 2.6 Obligations of the Company. Whenever required to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for up to ninety (90) days or, if earlier, until the Holder or Holders have completed the distribution related thereto. (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement. (c) Furnish to the Holders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them. (d) Use all reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. (e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement. (f) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. (g) Furnish, at the request of a majority in interest of the Holders participating in the registration, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and if permitted by applicable accounting standards, to the Holders requesting registration of Registrable Securities. 2.7 Termination of Registration Rights. All registration rights granted under this Section 2 shall terminate and be of no further force and effect five (5) years after the date of the Company's Initial Offering. In addition, a Holder's registration rights shall expire if (a) the Company has completed its Initial Offering and is subject to the provisions of the Exchange Act, and (b) all Registrable Securities held by and issuable to such Holder may be sold under Rule 144 during any ninety (90) day period. Following such expiration provided for in the preceding two sentences, such Holder's shares of Common Stock of the Company shall no longer be considered Registrable Securities for purposes of this Section 2. 2.8 Delay of Registration; Furnishing Information. (a) No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2. (b) The Company shall not be required to submit any registration statement to the Commission pursuant to Section 2.2, 2.3 or 2.4 if the selling Holders have not furnished to the Company such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be required to effect the registration of their Registrable Securities; provided, however, that the Company may eliminate the shares proposed to be sold by any selling Holder from registration pursuant to Section 2.2, 2.3 or 2.4 if such Holder has not provided such information, to the reasonable satisfaction of the Company, within twenty (20) days of having received written notice of a request for such information from the Company. (c) The Company shall have no obligation with respect to any registration requested pursuant to Section 2.2 or Section 2.4 if, due to the operation of subsection 2.2(b), the number of shares or the anticipated aggregate offering price of the Registrable Securities to be included in the registration does not equal or exceed the number of shares or the anticipated aggregate offering price required to originally trigger the Company's obligation to initiate such registration as specified in Section 2.2 or Section 2.4, whichever is applicable. 2.9 Indemnification. In the event any Registrable Securities are included in a registration statement under Sections 2.2, 2.3 or 2.4: (a) The Company will indemnify and hold harmless each Holder, the partners, officers, directors and legal counsel of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation") by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; and the Company will reimburse each such Holder, partner, officer, director, legal counsel, underwriter or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided however, that the indemnity agreement contained in this Section 2.9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, officer, director, legal counsel, underwriter or controlling person of such Holder. (b) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration qualifications or compliance is being effected, indemnify and hold harmless the Company, each of its directors, its officers, and legal counsel and each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder's partners, directors or officers or any person who controls such Holder, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling person, underwriter or other such Holder, or partner, director, officer or controlling person of such other Holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder under an instrument duly executed by such Holder and stated to be specifically for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, legal counsel, controlling person, underwriter or other Holder, or partner, officer, director, legal counsel or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Violation; provided, however, that the indemnity agreement contained in this Section 2.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; provided further, that in no event shall any indemnity under this Section 2.9 exceed the proceeds from the offering received by such Holder. (c) Promptly after receipt by an indemnified party under this Section 2.9 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.9, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.9, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.9. (d) If the indemnification provided for in this Section 2.9 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Holder hereunder exceed the proceeds from the offering received by such Holder. (e) The obligations of the Company and Holders under this Section 2.9 shall survive completion of any offering of Registrable Securities in a registration statement and the termination of this agreement. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. 2.10 Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or assignee of Registrable Securities which (a) (i) is a subsidiary, parent, affiliate, general partner, limited partner or retired partner of a Holder, or (ii) is a Holder's family member or trust for the benefit of an individual Holder, and (b) acquires at least thirty percent (30%) of the shares of Registrable Securities held by a Holder as of the date of this Agreement. No assignment of Registrable Securities pursuant to this Section 2.10 shall be effective unless (A) the transferor shall, within ten (10) days after such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned and (B) such transferee shall agree to be subject to all restrictions set forth in this Agreement. 2.11 Amendment of Registration Rights. Any provision of this Section 2 may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Holders of at least sixty-six and two-thirds percent (66-2/3%) of the Registrable Securities then outstanding; provided, however, that any alteration or change in the rights or privileges of any series of Series Preferred that discriminates against such series of Series Preferred shall additionally require the written consent of at least sixty-six and two-thirds percent (66-2/3%) of such series of Series Preferred. Any amendment or waiver effected in accordance with this Section 2.11 shall be binding upon each Holder and the Company. By acceptance of any benefits under this Section 2, Holders of Registrable Securities hereby agree to be bound by the provisions hereunder. 2.12 "Market Stand-Off" Agreement. Each Holder hereby agrees that such Holder shall not sell or otherwise transfer or dispose of any Common Stock (or other securities) of the Company held by such Holder (other than those included in the registration) for a period specified by the representative of the underwriters of Common Stock (or other securities) of the Company not to exceed one hundred eighty (180) days following the effective date of a registration statement of the Company filed under the Securities Act, provided that such agreement shall apply only to the Company's Initial Offering. Each Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. The obligations described in this Section 2.12 shall not apply to a registration relating solely to employee benefit plans on Form S-l or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of said one hundred eighty (180) day period. 2.13 Rule 144 Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its best efforts to: (a) Make and keep public information available, as those terms are understood and defined in SEC Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public; (b) File with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; (c) So long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request: a written statement by the Company as to its compliance with the reporting requirements of said Rule 144 of the Securities Act, and of the Exchange Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or quarterly report of the Company; and such other reports and documents as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration. SECTION 3. COVENANTS OF THE COMPANY. 3.1 Basic Financial Information and Reporting. (a) The Company will maintain true books and records of account in which full and correct entries will be made of all its business transactions pursuant to a system of accounting established and administered in accordance with generally accepted accounting principles consistently applied, and will set aside on its books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied. (b) As soon as practicable after the end of each fiscal year of the Company, and in any event within ninety (90) days thereafter, the Company will furnish each Investor a balance sheet of the Company, as at the end of such fiscal year, and a statement of income and a statement of cash flows of the Company, for such year, all prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be accompanied by a report and opinion thereon by independent public accountants of national standing selected by the Company's Board of Directors. (c) The Company will furnish each Investor, as soon as practicable after the end of each month, and in any event within thirty (30) days thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and a statement of cash flows of the Company for such month and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles, with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made. (d) To each Investor (with its affiliates) who owns not less than five hundred thousand (500,000) shares of Registrable Securities (a "Major Investor"), the Company will furnish each such Major Investor (i) as soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days thereafter, a balance sheet of the Company as of the end of each such quarterly period, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles, with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made; (ii) at least thirty (30) days prior to the beginning of each fiscal year an annual budget and operating plans for such fiscal year (and as soon as available, any subsequent revisions thereto); and (iii) as soon as practicable after the end of each month, and in any event within thirty (30) days thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and a statement of cash flows of the Company for such month and for the current fiscal year to date, including a comparison to plan figures for such period and to the financial statements for the comparable period for the prior fiscal year, prepared in accordance with generally accepted accounting principles consistently applied, with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made. (e) In the event Showtime Networks, Inc. ("Showtime") has Registrable Securities included in the Company's Registration Statement on Form S-1 with the Securities and Exchange Commission in connection with the Company's Initial Offering, as soon as practical after the filing of such Form S-l, and any amendment thereto, the Company shall deliver to Showtime one (1) copy of (i) such Form S-l or amendment, and (ii) each exhibit as filed with such Form S-1 or amendment. 3.2 Inspection Rights. Each Major Investor shall have the right to visit and inspect any of the properties of the Company or any of its subsidiaries, and to discuss the affairs, finances and accounts of the Company or any of its subsidiaries with its officers, and to review such information as is reasonably requested all at such reasonable times and as often as may be reasonably requested; provided, however, that the Company shall not be obligated under this Section 3.2 with respect to a competitor of the Company or with respect to information which the Board of Directors determines in good faith is confidential and should not, therefore, be disclosed. So long as NBC Multimedia, Inc. and National Broadcasting Company, Inc. (including, in each case, their affiliates) do not manufacture or distribute customizable personal television systems or services, the Company acknowledges and agrees that NBC Multimedia, Inc. and National Broadcasting Company, Inc. shall not be considered to be competitors of the Company for purposes of this Section 3.2. 3.3 Confidentiality of Records. Each Investor agrees to use, and to use its best efforts to insure that its authorized representatives use, the same degree of care as such Investor uses to protect its own confidential information to keep confidential any information furnished to it which the Company identifies as being confidential or proprietary (so long as such information is not in the public domain), except that such Investor may disclose such proprietary or confidential information to any partner, subsidiary or parent of such Investor for the purpose of evaluating its investment in the Company as long as such partner, subsidiary or parent is advised of the confidentiality provisions of this Section 3.3. 3.4 Strategic Value I, L.P. Board Observer. So long as Strategic Value I, L.P. ("SVI") or one of its affiliates holds at least 730,000 shares of the Company's Series C Preferred Stock or Common Stock, SVI shall have the right to appoint a representative (the "SVI Representative") who shall have the right to attend all meetings of the Company's Board of Directors in a nonvoting observer capacity, to receive notice of such meetings and to receive the information provided by the Company to the Board of Directors; provided, however, that the Company may require as a condition precedent to SVI's rights under this Section 3.4 that each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so received during such meetings or otherwise; and, provided further, that the Company reserves the right not to provide information and to exclude the SVI Representative from any meeting or portion thereof if delivery of such information or attendance at such meeting by such SVI Representative would result in disclosure of trade secrets to the SVI Representative or would adversely affect the attorney-client privilege between the Company and its counsel. Notwithstanding the foregoing, SVI shall have no rights under this Section 3.4 during any period in which an officer of SVI is serving as a director of the Company. 3.5 Vulcan Ventures Incorporated Board Observer. So long as Vulcan Ventures Incorporated ("Vulcan") or one of its affiliates holds at least 1,000,000 shares of the Company's Series D Preferred Stock or Common Stock, Vulcan shall have the right to appoint a representative (the "Vulcan Representative") who shall have the right to attend all meetings of the Company's Board of Directors in a nonvoting observer capacity, to receive notice of such meetings and to receive the information provided by the Company to the Board of Directors; provided, however, that the Company may require as a condition precedent to Vulcan's rights under this Section 3.5 that each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so received during such meetings or otherwise; and, provided further, that the Company reserves the right not to provide information and to exclude the Vulcan Representative from any meeting or portion thereof if delivery of such information or attendance at such meeting by such Vulcan Representative would result in disclosure of trade secrets to the Vulcan Representative or would adversely affect the attorney-client privilege between the Company and its counsel. Notwithstanding the foregoing, Vulcan shall have no rights under this Section 3.5 during any period in which an officer of Vulcan is serving as a director of the Company. 3.6 Showtime Board Observer. So long as Showtime or one of its affiliates holds at least 200,000 shares of the Company's Series E Preferred Stock or Common Stock, Showtime shall have the right to appoint a representative (the "Showtime Representative") who shall have the right to attend all meetings of the Company's Board of Directors in a nonvoting observer capacity, to receive notice of such meetings and to receive the information provided by the Company to the Board of Directors; provided, however, that the Showtime Representative executes a nondisclosure agreement in a form acceptable to the Company; provided further, that the Company may require as a condition precedent to Showtime's rights under this Section 3.6 that each person proposing to attend any meeting of the Company's Board of Directors and each person to have access to any of the information provided by the Company to the Board of Directors shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so received during such meetings or otherwise; and, provided further, that the Company reserves the right not to provide information and to exclude the Showtime Representative from any meeting or portion thereof if delivery of such information or attendance at such meeting by such Showtime Representative would result in disclosure of trade secrets to the Showtime Representative or would adversely affect the attorney-client privilege between the Company and its counsel. Notwithstanding the foregoing, Showtime shall have no rights under this Section 3.6 during any period in which an officer of Showtime is serving as a director of the Company. 3.7 DIRECTV Board Seat. So long as DIRECTV, Inc. ("DIRECTV") or one of its affiliates holds at least 2,500,000 shares of the Company's capital stock (consisting of the Company's Series F Preferred Stock and Common Stock), the Holders of the Company's Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock shall vote to designate a person designated by DIRECTV as the director which such Holders are entitled to designate pursuant to Section D.2(c)(iii) of Article III of the Company's Amended and Restated Certificate of Incorporation; provided that the person initially designated by DIRECTV shall be Larry N. Chapman and any subsequent replacement shall be chosen by such Holders from a list of three executives of DIRECTV provided to such Holders in DIRECTV's sole discretion. In addition to the requirements set forth in Section 5.6 below, and so long as DIRECTV or one of its affiliates holds at least 2,500,000 shares of the Company's capital stock (consisting of Series F Preferred Stock and Common Stock), any amendment or waiver of this Section 3.7 shall require the prior written consent of DIRECTV. 3.8 Reservation of Common Stock. The Company will at all times reserve and keep available, solely for issuance and delivery upon the conversion of the Preferred Stock, all Common Stock issuable from time to time upon such conversion. 3.9 Proprietary Information and Inventions Agreement. The Company shall require all employees and consultants to execute and deliver a Proprietary Information and Inventions Agreement in the form attached to the Purchase Agreement. 3.10 Board of Directors. As of the date of this Agreement (i) the authorized size of the Board of Directors of the Company is seven members, and (ii) the members of the Board of Directors of the Company include Michael Ramsay, James Barton, Geoffrey Yang, Stewart Alsop, Randy Komisar and two vacancies. Pursuant to Section 3.7 of this Agreement, the Holders of the Company's Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock shall, upon execution of this Agreement, promptly designate and elect Larry N. Chapman as a director of the Company pursuant to Section D.2(c)(iii) of Article III of the Company's Amended and Restated Certificate of Incorporation. The Holders of all of the outstanding shares of the Company's Series G Preferred Stock hereby designate and elect Thomas Rogers as a director of the Company pursuant to Section D.2(c)(iv) of Article III of the Company's Amended and Restated Certificate of Incorporation. 3.11 Termination of Covenants. All covenants of the Company contained in Section 3 of this Agreement shall expire and terminate as to each Investor on the effective date of the registration statement pertaining to the Initial Offering. SECTION 4. RIGHTS OF FIRST REFUSAL. 4.1 Subsequent Offerings. Each Investor shall have a right of first refusal to purchase its pro rata share of all Equity Securities, as defined below, that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 4.6 hereof. Each Investor's pro rata share is equal to the ratio of (a) the number of shares of the Company's Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares) which such Investor is deemed to be a holder immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company's outstanding Common Stock (including all shares of Common Stock issued or issuable upon conversion of the Shares or upon the exercise of any outstanding warrants or options) immediately prior to the issuance of the Equity Securities. The term "Equity Securities" shall mean (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security or (iv) any such warrant or right. 4.2 Exercise of Rights. If the Company proposes to issue any Equity Securities, it shall give each Investor written notice of its intention, describing the Equity Securities, the price and the terms and conditions upon which the Company proposes to issue the same. Each Investor shall have fifteen (15) days from the giving of such notice to agree to purchase its pro rata share of the Equity Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of Equity Securities to be purchased. Notwithstanding the foregoing, the Company shall not be required to offer Or sell such Equity Securities to any Investor who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale. 4.3 Issuance of Equity Securities to Other Persons. If the Investors fail to exercise in full the rights of first refusal, the Company shall have ninety (90) days thereafter to sell the Equity Securities in respect of which the Investor's rights were not exercised, at a price and upon general terms and conditions materially no more favorable to the purchasers thereof than specified in the Company's notice to the Investors pursuant to Section 4.2 hereof. If the Company has not sold such Equity Securities within ninety (90) days of the notice provided pursuant to Section 4.2, the Company shall not thereafter issue or sell any Equity Securities, without first offering such securities to the Investors in the manner provided above. 4.4 Termination of Rights of First Refusal. The rights of first refusal established by this Section 4 shall not apply to, and shall terminate upon the effective date of the registration statement pertaining to the Company's Initial Offering. 4.5 Transfer of Rights of First Refusal. The rights of first refusal of each Investor under this Section 4 may be transferred to the same parties, subject to the same restrictions as any transfer of registration rights pursuant to Section 2.10. 4.6 Excluded Securities. The rights of first refusal established by this Section 4 shall have no application to any of the following Equity Securities: (a) shares of Common Stock (and/or options, warrants or other Common Stock purchase rights issued pursuant to such options, warrants or other rights) issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company or any subsidiary, pursuant to stock purchase or stock option plans or other compensatory arrangements that are approved by the Board of Directors; (b) any Equity Securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors; (c) shares of Common Stock issued in connection with any stock split, stock dividend or recapitalization by the Company; (d) shares of Common Stock issued upon conversion of the Shares; (e) any Equity Securities issued pursuant to any equipment leasing arrangement, or debt financing from a bank or other institution; provided that such transactions and the issuance of shares therein, have been approved by the Company's Board of Directors; and (f) any Equity Securities issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions and the issuance of shares therein, have been approved by the Company's Board of Directors. SECTION 5. MISCELLANEOUS. 5.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California. 5.2 Survival. The representations, warranties, covenants, and agreements made herein shall survive any investigation made by any Holder and the closing of the transactions contemplated hereby. All statements as to factual matters contained in any certificate or other instrument delivered by or on behalf of the Company pursuant hereto in connection with the transactions contemplated hereby shall be- deemed to be representations and warranties by the Company hereunder solely as of the date of such certificate or instrument. 5.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however, that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price. 5.4 Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein. 5.5 Severability. In case any provision of the Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 5.6 Amendment and Waiver (a) Except as otherwise expressly provided, this Agreement may be amended or modified only upon the written consent of the Company and the holders of at least sixty-six and two-thirds percent (66-2/3%) of the Registrable Securities. (b) Except as otherwise expressly provided, the obligations of the Company and the rights of the Holders under this Agreement may be waived only with the written consent of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the Registrable Securities. (c) Notwithstanding the foregoing, this Agreement may be amended with only the written consent of the Company to include additional purchasers of Shares as "Investors," "Holders" and parties hereto. 5.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any Holder, upon any breach, default or noncompliance of the Company under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any Holder's part of any breach, default or noncompliance under the Agreement or any waiver on such Holder's part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not alternative. 5.8 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or Exhibit A hereto or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto. 5.9 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 5.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: TIVO INC. By: /s/ Michael Ramsay -------------------------------------- Michael Ramsay, President and Chief Executive Officer IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. INSTITUTIONAL VENTURE PARTNERS VII, L.P. By Its General Partner Institutional Venture Management VII, L.P. By: /s/ Geoffrey Y. Yang ------------------------------------- Geoffrey Y. Yang General Partner INSTITUTIONAL VENTURE MANAGEMENT VII, L.P. By: /s/ Geoffrey Y. Yang ------------------------------------- Geoffrey Y. Yang General Partner IVP FOUNDERS FUND I, L.P. By Its General Partner Institutional Venture Management VI, L.P. By: /s/ Geoffrey Y. Yang ------------------------------------- Geoffrey Y. Yang General Partner IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. INVESTORS NEW ENTERPRISE ASSOCIATES VII, L.P. By NEA Partners VII, L.P., Its General Partner By: /s/ C. Richard Kramlich ------------------------------------ C. Richard Kramlich General Partner NEA PRESIDENTS FUND, L.P. By NEA Partners, L.P., Its General Partner By: /s/ C. Richard Kramlich ----------------------------------- C. Richard Kramlich General Partner NEA VENTURES 1997, L.P. By: /s/ Susie Greathouse -------------------------------------- Vice President IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. MICHAEL RAMSAY /s/ Michael Ramsay ---------------------------- IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. JAMES BARTON /s/ James Barton ------------------------------ IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. RANDY KOMISAR /s/ Randy Komisar ------------------------------ IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. STRATEGIC VALUE I, L.P. By Its General Partner SV Partners, LLC By: /s/ Robert P. Parker ------------------------------- Name: Robert P. Parker ----------------------------- Title: Managing Member --------------------------- IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. VULCAN VENTURES INCORPORATED By: /s/ William D. Savoy ------------------------------- Name: William D. Savoy ---------------------------- Title: Vice President ------------------------- IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. DIRECTV, INC. By: /s/ Bradley Beale ---------------------------------- Name: Bradley Beale ------------------------------- Title: Vice President ------------------------------- IN WITNESS WHEREOF, the parties hereto have executed this SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. NBC MULTIMEDIA, INC. By: /s/ Martin Yudkovitz ------------------------------- Name: Martin Yudkovitz ---------------------------- Title: President ---------------------------- EXHIBIT A INVESTOR RIGHTS AGREEMENT SCHEDULE OF INVESTORS SERIES A PREFERRED STOCK
Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- New Enterprise Associates VII, L.P. 1,950,000 $ 1,170,000.00 NEA Presidents Fund, L.P. 41,667 $ 25,000.20 NEA Ventures 1997, L.P. 8,333 $ 4,999.80 Institutional Venture Partners VII, L.P. 1,890,000 $ 1,134,000.00 Institutional Venture Management VII, L.P. 40,000 $ 24,000.00 IVP Founders Fund I, L.P. 70,000 $ 42,000.00 Michael Ramsay 666,667 $ 400,000.20 (holds 656,667 after transfers described below James Barton 166,667 $ 100,000.20 John Arillaga Survivors' Trust 41,667 $ 25,000.20 Robert C. Harris, Jr. 83,333 $ 49,999.80 GC&H Investments 41,666 $ 24,999.60 Fiona M. Bayne 5,000 Transfer from Michael Ramsay Ian Forrest 5,000 Transfer from Michael Ramsay Total: 5,000,000 $ 3,000,000
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS SERIES B PREFERRED STOCK Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- First Closing: May 29, 1998 New Enterprise Associates VII, L.P. 1,587,302 $ 2,000,000.52 Institutional Venture Partners VII, L.P. 1,539,683 $ 1,940,000.58 Institutional Venture Management VII, L.P. 31,746 $ 39,999.96 IVP Founders Fund I, L.P. 15,873 $ 19,999.98 ======================== ====================== Subtotal: 3,174,604 $ 4,000,001.04 Second Closing: June 26, 1998 Robert Bishop 119,048 $ 150,000.48 Edward C. MacBeth 59,524 $ 75,000.24 Ta-Wei Chien 59,524 $ 75,000.24 Robert C. Harris, Jr. 39,683 $ 50,000.58 Quattrone Family Trust UTA DTD 9/4/91 39,683 $ 50,000.58 R. Randolph Scott 39,683 $ 50,000.58 Michael Barton 39,683 $ 50,000.58 Randy Komisar 24,800 $ 31,248.00 Chin-Tong Chow 19,841 $ 24,999.66 Jean S. Kao 19,841 $ 24,999.66 ======================== ====================== Subtotal: 3,635,914 $ 4,581,251.64 Third Closing: July 27, 1998 Edward C. MacBeth 25,000 (all 31,500 transferred to Steve Humphries) Steve Humphries 25,000 Transferred from Edward C. MacBeth 25,000 $ 31,500.00 ======================== ====================== Total: 3,660,914 $ 4,612,751.64
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS SERIES C PREFERRED STOCK Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- First Closing: October 8, 1998 Strategic Value I, L.P. 972,973 $ 1,800,000.05 New Enterprise Associates VII, L.P. 594,595 $ 1,100,000.75 Institutional Venture Partners VII, L.P. 576,757 $ 1,067,000.45 Institutional Venture Management VII, L.P. 11,892 $ 22,000.20 IVP Founders Fund, I, L.P. 5,946 $ 11,000.10 Subtotal: 2,162,163 $ 4,000,001.55 Second Closing: October 30, 1998 Comdisco 135,136 $ 250,001.60 Odyssey Capital, LLC 135,136 $ 250,001.60 SallyAnn Reiss and Peter Reiss as Trustees of the 13,513 $ 24,999.05 1998 Reiss family Trust Clifford C. Highlund & Vickie L. Highlund as Trustees 13,513 $ 24,999.05 for the Clifford C. Highlund Living Tr dated December 27, 1994 Paul M. Newby 13,513 $ 24,999.05 David Allen Lockett and Deborah Marion Locket 13,513 $ 24,999.05 Kurtis G. Heaton 13,513 $ 24,999.05 ======================== ====================== Subtotal: 337,837 $ 624,998.45 TOTAL 2,500,000 $ 4,625,000.00 Subsequent Sales of Series C: Odyssey Capital, LLC 13,513 $ 24,999.05
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS SERIES D PREFERRED STOCK Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- Vulcan Ventures Incorporated 1,358,695 $ 4,999,997.60 TOTAL: 1,358,695 $ 4,999,997.60
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS SERIES E PREFERRED STOCK Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- Showtime Networks Inc. 270,270 $ 1,999,998 TOTAL: 270,270 $ 1,999,998
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS SERIES F PREFERRED STOCK Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- DIRECTV, Inc. 405,405 $ 2,999,997 TOTAL: 405,405 $ 2,999,997
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS SERIES G PREFERRED STOCK Aggregate Name Shares Purchase Price - ------------------------------------------------------- ------------------------ ---------------------- NBC Multimedia, Inc. 1,013,513 $ 7,499,996.20 TOTAL: 1,013,513 $ 7,499,996.20
EXHIBIT A (CONT.) SCHEDULE OF INVESTORS REGISTRABLE COMMON STOCK Aggregate Name Shares Purchase Price - --------------------------------------------------- ------------------------- ------------------------- DIRECTV, Inc. 2,981,196 Services, support and promissory note as set forth in the Marketing Agreement TOTAL: 2,981,196 Services, support and promissory note as set forth in the Marketing Agreement
EX-4 6 ex4.txt Exhibit 4 State of Delaware Office of the Secretary of State I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "TIVO INC.", FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF APRIL, A.D. 1999, AT 9 O'CLOCK A.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY RECORDER OF DEEDS. AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF TIVO INC. Pursuant to Sections 242 and 245 of Delaware Code MICHAEL RAMSAY and ALAN C. MENDELSON hereby certify that: 1. The name of this corporation is TIVO INC. The name under which this corporation was originally incorporated is Teleworld Inc. and the date of filing the original Certificate of Incorporation of this corporation with the Secretary of State of the State of Delaware is August 4, 1997. 2. They are the duly elected and acting President and Secretary, respectively, of TiVo Inc., a Delaware corporation. 3. The Certificate of Incorporation of this corporation is hereby amended and restated to read as follows: I. The name of the corporation is TiVo Inc. (the "Corporation" or the "Company"). II. The address of the registered office of the Corporation in the State of Delaware is 15 East North Street, City of Dover, County of Kent. The name of the Corporation's registered agent at said address is Amerisearch Corporate Services Inc. The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware. A. This Corporation is authorized to issue two classes of stock to be designated, respectively, "Common Stock" and "Preferred Stock." The total number of shares which the Corporation is authorized to issue is Fifty Eight Million (58,000,000) shares, Forty Million (40,000,000) shares of which shall be Common Stock (the "Common Stock") and Eighteen Million (18,000,000) shares of which shall be Preferred Stock (the "Preferred Stock"). The Preferred Stock shall have a par value of One-Tenth of One Cent ($.001) per share and the Common Stock shall have a par value of One-Tenth of One Cent ($.001) per share. B. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares of Common Stock then outstanding or reserved for issuance upon conversion of outstanding Preferred Stock) by the affirmative vote of the holders of a majority of the stock of the Corporation (voting together on an as-if-converted basis). C. Five Million Two Hundred Thousand (5,200,000) of the authorized shares of Preferred Stock are hereby designated "Series A Preferred Stock," Four Million Four Hundred Thousand (4,400,000) of the authorized shares of Preferred Stock are hereby designated "Series B Preferred Stock," Four Million (4,000,000) of the authorized shares of Preferred Stock are hereby designated "Series C Preferred Stock," Two Million Five Hundred Thousand (2,500,000) of the authorized shares of Preferred Stock are hereby designated "Series D Preferred Stock," Three Hundred Thousand (300,000) of the authorized shares of Preferred Stock are hereby designated "Series E Preferred Stock," Five Hundred Thousand (500,000) of the authorized shares of Preferred Stock are hereby designated "Series F Preferred Stock" and One Million One Hundred Thousand (1,100,000) of the authorized shares of Preferred Stock are hereby designated "Series G Preferred Stock" (together, the "Series Preferred"). D. The rights, preferences, privileges, restrictions and other matters relating to the Series Preferred are as follows: 1. Dividend Rights. (a) Holders of Series Preferred, in preference to the holders of any other stock of the Company ("Junior Stock"), shall be entitled to receive, when, if, and as declared by the Board of Directors, but only out of funds that are legally available therefor, cash dividends at the rate of ten percent (10%) of the "Original Issue Price" per annum on each outstanding share of Series Preferred (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares). The Original Issue Price of the Series A Preferred Stock shall be Sixty Cents ($.60), the Original Issue Price of the Series B Preferred Stock shall be One Dollar and Twenty-Six Cents ($1.26), the Original Issue Price of the Series C Preferred Stock shall be One Dollar and Eighty-Five Cents ($1.85), the Original Issue Price of the Series D Preferred Stock shall be Three Dollars and Sixty-Eight Cents ($3.68), the Original Issue Price of the Series E Preferred Stock shall be Seven Dollars and Forty Cents ($7.40), the Original Issue Price of the Series F Preferred Stock shall be Seven Dollars and Forty Cents ($7.40) and the Original Issue Price of the Series G Preferred Stock shall be Seven Dollars and Forty Cents ($7.40). Such dividends shall be payable only when, as and if declared by the Board of Directors and shall be non-cumulative. (b) So long as any shares of Series Preferred shall be outstanding, no dividend, whether in cash or property, shall be paid or declared, nor shall any other distribution be made, on any Junior Stock, nor shall any shares of any Junior Stock of the Company be purchased, redeemed, or otherwise acquired for value by the Company (except for acquisitions of Common Stock by the Company pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company or in exercise of the Company's right of first refusal upon a proposed transfer) until all dividends (set forth in Section 1(a) above) on the Series Preferred shall have been paid or declared and set apart. In the event dividends are paid on any share of Common Stock, an additional dividend shall be paid with respect to all outstanding shares of Series Preferred in an amount equal per share (on an as-if-converted to Common Stock basis) to the amount paid or set aside for each share of Common Stock. The provisions of this Section 1(b) shall not, however, apply to (i) a dividend payable in Common Stock, (ii) the acquisition of shares of any Junior Stock in exchange for shares of any other Junior Stock, or (iii) any repurchase of any outstanding securities of the Company that is unanimously approved by the Company's Board of Directors. 2. Voting Rights. (a) General Rights. Except as otherwise provided herein or as required by law, the Series Preferred shall be voted equally with the shares of the Common Stock of the Company and not as a separate class, at any annual or special meeting of shareholders of the Company, and may act by written consent in the same manner as the Common Stock, in either case upon the following basis: each holder of shares of Series Preferred shall be entitled to such number of votes as shall be equal to the whole number of shares of Common Stock into which such holder's aggregate number of shares of Series Preferred are convertible (pursuant to Section 4 hereof) immediately after the close of business on the record date fixed for such meeting or the effective date of such written consent. (b) Separate Vote of Series Preferred. For so long as at least 4,000,000 shares of Series Preferred (subject to adjustment for any stock split, reverse stock split or other similar event affecting the Series Preferred) remain outstanding, in addition to any other vote or consent required herein or by law, the vote or written consent of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding Series Preferred shall be necessary for effecting or validating the following actions: (i) Any amendment, alteration, or repeal of any provision of the Certificate of Incorporation or the Bylaws of the Company (including any filing of a Certificate of Designation); (ii) Alteration or change in the voting powers, preferences, or other special rights or privileges, qualifications, limitations, or restrictions of the Series Preferred; (iii) Any increase or decrease (other than by redemption or conversion) in the authorized number of shares of Preferred Stock; (iv) Any authorization or any designation, whether by reclassification or otherwise, of any new class or series of stock or any other securities convertible into equity securities of the Company ranking on a parity with or senior to the Series Preferred in right of redemption, liquidation preference, voting or dividends or any increase in the authorized or designated number of any such new class or series; (v) Any redemption, repurchase, payment of dividends or other distributions with respect to Junior Stock (except for acquisitions of Common Stock by the Company pursuant to employee agreements which permit the Company to repurchase such shares upon termination of services to the Company or in exercise of the Company's right of first refusal upon a proposed transfer); (vi) An Asset Transfer or Acquisition (each as defined in Section 3(c)); (vii) A reclassification or recapitalization of the outstanding capital stock of the Company; or (viii) Any increase or decrease in the authorized number of members of the Company's Board of Directors. (c) Election of Board of Directors. For so long as at least 4,000,000 shares of Series Preferred remain outstanding (subject to adjustment for any stock split, reverse stock split or similar event affecting the Series Preferred), (i) the holders of Series A Preferred Stock and Series B Preferred Stock, voting together as a separate class, shall be entitled to elect two (2) members of the Company's Board of Directors at each meeting or pursuant to each consent of the Company's shareholders for the election of directors, and to remove from office such directors and to fill any vacancy caused by the resignation, death or removal of such directors; (ii) the holders of Common Stock, voting as a separate class, shall be entitled to elect two (2) members of the Board of Directors at each meeting or pursuant to each consent of the Company's shareholders for the election of directors, and to remove from office such directors and to fill any vacancy caused by the resignation, death or removal of such directors; (iii) the holders of Series C Preferred Stock, Series D Preferred Stock and Series F Preferred Stock, voting together as a separate class, shall be entitled to elect one (1) member of the Board of Directors at each meeting or pursuant to each consent of the Company's shareholders for the election of directors, and to remove from office such director and to fill any vacancy caused by the resignation, death or removal of such director; (iv) the holders of Series G Preferred Stock, voting as a separate class, shall be entitled to elect one (1) member of the Board of Directors at each meeting or pursuant to each consent of the Company's shareholders for the election of directors, and to remove from office such director and to fill any vacancy caused by the resignation, death or removal of such director; and (v) the holders of Common Stock and Series Preferred, voting together as a class, shall be entitled to elect all remaining members of the Board of Directors. 3. Liquidation Rights. (a) Upon any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary, before any distribution or payment shall be made to the holders of any Junior Stock, the holders of Series Preferred shall be entitled to be paid out of the assets of the Company an amount per share of Series Preferred equal to the respective Original Issue Price plus all declared and unpaid dividends on the Series Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares) for each share of Series Preferred held by them. (b) After the payment of the full liquidation preference of the Series Preferred as set forth in Section 3(a) above, the remaining assets of the Company legally available for distribution, if any, shall be distributed ratably to the holders of the Common Stock. (c) The following events shall be considered a liquidation under this Section: (i) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, own less than 50% of the Company's voting power immediately after such consolidation, merger or reorganization, or any transaction or series of related transactions in which in excess of fifty percent (50%) of the Company's voting power is transferred (an "Acquisition"); or (ii) a sale, lease or other disposition of all or substantially all of the assets of the Company (an "Asset Transfer"). (iii) If, upon any liquidation, distribution, or winding up, the assets of the Company shall be insufficient to make payment in full to all holders of Series Preferred of the liquidation preference set forth in Sections 3(a), then such assets shall be distributed among the holders of Series Preferred at the time outstanding, ratably in proportion to the full amounts to which they would otherwise be respectively entitled. 4. Conversion Rights. The holders of the Series Preferred shall have the following rights with respect to the conversion of the Series Preferred into shares of Common Stock (the "Conversion Rights"): (a) Optional Conversion. Subject to and in compliance with the provisions of this Section 4, any shares of Series Preferred may, at the option of the holder, be converted at any time into fully-paid and nonassessable shares of Common Stock. The number of shares of Common Stock to which a holder of Series Preferred shall be entitled upon conversion shall be the product obtained by multiplying the "Series Conversion Rate" then in effect (determined as provided in Section 4(b)) by the number of shares of Series Preferred being converted. (b) Series Preferred. The Series Conversion Rate in effect at any time for conversion of the Series Preferred (the "Series Conversion Rate") shall be the quotient obtained by dividing the respective Original Issue Price for each series of the Series Preferred by the "Series Preferred Price" for such series, calculated as provided in Section 4(c). (c) Conversion Price. The conversion price for each series of the Series Preferred shall initially be the respective Original Issue Price of such series (in each case, the "Series Preferred Price"). Each such initial Series Preferred Price shall be adjusted from time to time in accordance with this Section 4. All references to any Series Preferred Price herein shall mean such Series Preferred Price as so adjusted. (d) Mechanics of Conversion. Each holder of Series Preferred who desires to convert the same into shares of Common Stock pursuant to this Section 4 shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or any transfer agent for the Series Preferred, and shall give written notice to the Company at such office that such holder elects to convert the same. Such notice shall state the number of shares of Series Preferred being converted. Thereupon, the Company shall promptly issue and deliver at such office to such holder a certificate or certificates for the number of shares of Common Stock to which such holder is entitled and shall promptly pay in cash or, to the extent sufficient funds are not then legally available therefor, in Common Stock (at the Common Stock's fair market value determined by the Board of Directors as of the date of such conversion), any declared and unpaid dividends on the shares of Series Preferred being converted. Such conversion shall be deemed to have been made at the close of business on the date of such surrender of the certificates representing the shares of Series Preferred to be converted, and the person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock on such date. (e) Adjustment for Stock Splits and Combinations. If the Company shall at any time or from time to time after the date that the first share of Series Preferred is issued (the "Original Issue Date") effect a subdivision of the outstanding Common Stock without a corresponding subdivision of the Preferred Stock, each Series Preferred Price in effect immediately before that subdivision shall be proportionately decreased. Conversely, if the Company shall at any time or from time to time after the Original Issue Date combine the outstanding shares of Common Stock into a smaller number of shares without a corresponding combination of the Preferred Stock, each Series Preferred Price in effect immediately before the combination shall be proportionately increased. Any adjustment under this Section 4(e) shall become effective at the close of business on the date the subdivision or combination becomes effective. (f) Adjustment for Common Stock Dividends and Distributions. If the Company at any time or from time to time after the Original Issue Date makes, or fixes a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in additional shares of Common Stock, in each such event each Series Preferred Price that is then in effect shall be decreased as of the time of such issuance or, in the event such record date is fixed, as of the close of business on such record date, by multiplying each Series Preferred Price then in effect by a fraction (i) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and (ii) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution; provided, however, that if such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series Preferred Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series Preferred Price shall be adjusted pursuant to this Section 4(1) to reflect the actual payment of such dividend or distribution. (g) Adjustments for Other Dividends and Distributions. If the Company at any time or from time to time after the Original Issue Date makes, or fixes a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company other than shares of Common Stock, in each such event provision shall be made so that the holders of the Series Preferred shall receive upon conversion thereof, in addition to the number of shares of Common Stock receivable thereupon, the amount of other securities of the Company which they would have received had their Series Preferred been converted into Common Stock on the date of such event and had they thereafter, during the period from the date of such event to and including the conversion date, retained such securities receivable by them as aforesaid during such period, subject to all other adjustments called for during such period under this Section 4 with respect to the rights of the holders of the Series Preferred or with respect to such other securities by their terms. (h) Adjustment for Reclassification, Exchange and Substitution. If at any time or from time to time after the Original Issue Date, the Common Stock issuable upon the conversion of the Series Preferred is changed into the same or a different number of shares of any class or classes of stock, whether by recapitalization, reclassification or otherwise (other than an Acquisition or Asset Transfer as defined in Section 3(c) or a subdivision or combination of shares or stock dividend or a reorganization, merger, consolidation or sale of assets provided for elsewhere in this Section 4), in any such event each holder of Series Preferred shall have the right thereafter to convert such stock into the kind and amount of stock and other securities and property receivable upon such recapitalization, reclassification or other change by holders of the maximum number of shares of Common Stock into which such shares of Series Preferred could have been converted immediately prior to such recapitalization, reclassification or change, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof. (i) Reorganizations, Mergers, Consolidations or Sales of Assets. If at any time or from time to time after the Original Issue Date, there is a capital reorganization of the Common Stock (other than an Acquisition or Asset Transfer as defined in Section 3(c)) or a recapitalization, subdivision, combination, reclassification, exchange or substitution of shares provided for elsewhere in this Section 4, as a part of such capital reorganization, provision shall be made so that the holders of the Series Preferred shall thereafter be entitled to receive upon conversion of the Series Preferred the number of shares of stock or other securities or property of the Company to which a holder of the number of shares of Common Stock deliverable upon conversion would have been entitled on such capital reorganization, subject to adjustment in respect of such stock or securities by the terms thereof. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 4 with respect to the rights of the holders of Series Preferred after the capital reorganization to the end that the provisions of this Section 4 (including adjustment of each Series Preferred Price then in effect and the number of shares issuable upon conversion of the Series Preferred) shall be applicable after that event and be as nearly equivalent as practicable. (j) Sale of Shares Below Series Preferred Price. (i) If at any time or from time to time after the Original Issue Date, the Company issues or sells, or is deemed by the express provisions of this Section 4(j) to have issued or sold, Additional Shares of Common Stock (as defined in Section 4(j)(iv) below), other than as a dividend or other distribution on any class of stock as provided in Section 4(f) above, and other than a subdivision or combination of shares of Common Stock as provided in Section 4(e) above, for an Effective Price (as defined in Section 4(j)(iv) below) less than the then effective Series Preferred Price for one or more series of Series Preferred; then and in each such case each then existing Series Preferred Price that is higher than the Effective Price shall be reduced, as of the opening of business on the date of such issue or sale, to a price determined by multiplying such Series Preferred Price by a fraction (i) the numerator of which shall be (A) the number of shares of Common Stock deemed outstanding (as defined below) immediately prior to such issue or sale, plus (B) the number of shares of Common Stock which the aggregate consideration received (as defined in Section 4(j)(ii)) by the Company for the total number of Additional Shares of Common Stock so issued would purchase at such Series Preferred Price, and (ii) the denominator of which shall be the number of shares of Common Stock deemed outstanding (as defined below) immediately prior to such issue or sale plus the total number of Additional Shares of Common Stock so issued. For the purposes of the preceding sentence the number of shares of Common Stock deemed to be outstanding as of a given date shall be the sum of (A) the number of shares of Common Stock actually outstanding, (B) the number of shares of Common Stock into which the then outstanding shares of Series Preferred could be converted if fully converted on the day immediately preceding the given date, and (C) the number of shares of Common Stock which could be obtained through the exercise or conversion of all other rights, options and convertible securities on the day immediately preceding the given date. (ii) For the purpose of making any adjustment required under this Section 4(j), the consideration received by the Company for any issue or sale of securities shall (A) to the extent it consists of cash, be computed at the net amount of cash received by the Company after deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale but without deduction of any expenses payable by the Company, (B) to the extent it consists of property other than cash, be computed at the fair value of that property as determined in good faith by the Board of Directors, and (C) if Additional Shares of Common Stock, Convertible Securities (as defined in Section 4(j)(iii)) or rights or options to purchase either Additional Shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board of Directors to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options. (iii) For the purpose of the adjustment required under this Section 4(j), if the Company issues or sells any rights or options for the purchase of, or stock or other securities convertible into, Additional Shares of Common Stock (such convertible stock or securities being herein referred to as "Convertible Securities") and if the Effective Price of such Additional Shares of Common Stock is less than the Series Preferred Price for one or more series of Series Preferred, in each case the Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon exercise or conversion thereof and to have received as consideration for the issuance of such shares an amount equal to the total amount of the consideration, if any, received by the Company for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or options, the minimum amounts of consideration, if any, payable to the Company upon the exercise of such rights or options, plus, in the case of Convertible Securities, the minimum amounts of consideration, if any, payable to the Company (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion thereof; provided that if in the case of Convertible Securities the minimum amounts of such consideration cannot be ascertained, but are a function of antidilution or similar protective clauses, the Company shall be deemed to have received the minimum amounts of consideration without reference to such clauses; provided further that if the minimum amount of consideration payable to the Company upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or on the occurrence or nonoccurrence of specified events other than by reason of antidilution adjustments, the Effective Price shall be recalculated using the figure to which such minimum amount of consideration is reduced; provided further that if the minimum amount of consideration payable to the Company upon the exercise or conversion of such rights, options or Convertible Securities is subsequently increased, the Effective Price shall be again recalculated using the increased minimum amount of consideration payable to the Company upon the exercise or conversion of such rights, options or Convertible Securities. No further adjustment of any Series Preferred Price, as adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock on the exercise of any such rights or options or the conversion of any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire without having been exercised, each Series Preferred Price as adjusted upon the issuance of such rights, options or Convertible Securities shall be readjusted to the Series Preferred Price which would have been in effect had an adjustment been made on the basis that the only Additional Shares of Common Stock so issued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or sold for the consideration actually received by the Company upon such exercise, plus the consideration, if any, actually received by the Company for the granting of all such rights or options, whether or not exercised, plus the consideration received for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Company (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) on the conversion of such Convertible Securities, provided that such readjustment shall not apply to prior conversions of Series Preferred. (iv) "Additional Shares of Common Stock" shall mean all shares of Common Stock issued by the Company or deemed to be issued pursuant to this Section 4(j), whether or not subsequently reacquired or retired by the Company other than (A) shares of Common Stock issued upon conversion of the Series Preferred; (B) up to 6,500,000 shares of Common Stock and/or options, warrants or other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) after the Original Issue Date to employees, officers or directors of, or consultants or advisors to the Company pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board; (C) shares of Common Stock or Preferred Stock, or securities convertible into or with rights to purchase Common Stock or Preferred Stock, issued in connection with acquisition transactions, where such transactions have been approved by the Board of Directors of the Company (D)) shares of Common Stock or Preferred Stock, or other securities convertible into or with rights to purchase shares of Common Stock or Preferred Stock, issued to financial and other institutions, lessors or vendors of the Company in connection with the provision of credit to the Company; and (E) any shares of, or securities convertible into, the Company's Common Stock or Preferred Stock issued in connection with strategic transactions involving the Company and other entities, including (i) joint ventures, manufacturing, marketing or distribution arrangements or (ii) technology transfer or development arrangements; provided that such strategic transactions, and the issuance of shares therein, have been approved by the Company's Board of Directors. The "Effective Price" of Additional Shares of Common Stock shall mean the quotient determined by dividing the total number of Additional Shares of Common Stock issued or sold, or deemed to have been issued or sold by the Company under this Section 4(j), into the aggregate consideration received, or deemed to have been received by the Company for such issue under this Section 4(j), for such Additional Shares of Common Stock. (k) Certificate of Adjustment. In each case of an adjustment or readjustment of the Series Preferred Price for the number of shares of Common Stock or other securities issuable upon conversion of the Series Preferred, if the Series Preferred is then convertible pursuant to this Section 4, the Company, at its expense, shall compute such adjustment or readjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment or readjustment, and shall mail such certificate, by first class mail, postage prepaid, to each registered holder of Series Preferred at the holder's address as shown in the Company's books. The certificate shall set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (i) the consideration received or deemed to be received by the Company for any Additional Shares of Common Stock issued or sold or deemed to have been issued or sold, (ii) the Series Preferred Price at the time in effect for such series of Series Preferred, (iii) the number of Additional Shares of Common Stock and (iv) the type and amount, if any, of other property which at the time would be received upon conversion of the Series Preferred. (l) Notices of Record Date. Upon (i) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or (ii) any Acquisition (as defined in Section 3(c) or other capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any merger or consolidation of the Company with or into any other corporation, or any Asset Transfer (as defined in Section 3(c)), or any voluntary or involuntary dissolution, liquidation or winding up of the Company, the Company shall mail to each holder of Series Preferred at least twenty (20) days prior to the record date specified therein a notice specifying (A) the date on which any such record is to be taken for the purpose of such dividend or distribution and a description of such dividend or distribution, (B) the date on which any such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or winding up is expected to become effective, and (C) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer; dissolution, liquidation or winding up. (m) Automatic Conversion. (i) Each share of Series Preferred shall automatically be converted into shares of Common Stock, based on the then-effective Series Preferred Price for such series of Series Preferred, (A) at any time upon the affirmative election of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of the Series Preferred, or (B) immediately upon the closing of a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock for the account of the Company in which (i) the per share price is at least Seven Dollars and Fifty Cents ($7.50) per share (as adjusted for stock splits, combinations and similar events) and (ii) the gross cash proceeds to the Company (before underwriting discounts, commissions and fees) are not less than $15,000,000. Upon such automatic conversion, any declared and unpaid dividends shall be paid in accordance with the provisions of Section 4(d). (ii) Upon the occurrence of the event specified in paragraph (A) above, the outstanding shares of Series Preferred shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent; provided, however, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Series Preferred are either delivered to the Company or its transfer agent as provided below, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates. Upon the occurrence of such automatic conversion of the Series Preferred, the holders of Series Preferred shall surrender the certificates representing such shares at the office of the Company or any transfer agent for the Series Preferred. Thereupon, there shall be issued and delivered to such holder promptly at such office and in its name as shown on such surrendered certificate or certificates, a certificate or certificates for the number of shares of Common Stock into which the shares of Series Preferred surrendered were convertible on the date on which such automatic conversion occurred, and any declared and unpaid dividends shall be paid in accordance with the provisions of Section 4(d). (n) Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of Series Preferred. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series Preferred by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Company shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the Common Stock's fair market value (as determined by the Board of Directors) on the date of conversion. (o) Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series Preferred, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series Preferred. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series Preferred, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. (p) Notices. Any notice required by the provisions of this Section 4 shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices shall be addressed to each holder of record at the address of such holder appearing on the books of the Company. (q) Payment of Taxes. The Company will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series Preferred, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series Preferred so converted were registered. (r) No Dilution or Impairment. Without the consent of the holders of then outstanding Series Preferred as required under Section 2(b), the Company shall not amend its Restated Certificate of Incorporation or participate in any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or take any other voluntary action, for the purpose of avoiding or seeking to avoid the observance or performance of any of the terms to be observed or performed hereunder the Company, but shall at all times in good faith assist in carrying out all such action as may be reasonably necessary or appropriate in order to protect the conversion rights of the holders of the Series Preferred against dilution or other impairment. 5. No Preemptive Rights. Stockholders shall have no preemptive rights except as granted by the Company pursuant to written agreements. E. A director of the corporation shall not be personally liable to the Corporation or its stockholders few monetary damages for any breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 1/4 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended after approval by the stockholders of this Article 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. F. Any repeal or modification of this Article IV shall only be prospective and shall not effect the rights under this Article IV in effect at the time of the alleged occurrence of any action or omission to act giving rise to liability. For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation, of its directors and of its stockholders or any class thereof, as the ease may be, it is further provided that: G. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by the Board of Directors in the manner provided in the Bylaws. H. The Board of Directors may from time to time make, amend, supplement or repeal the Bylaws; provided, however, that the stockholders may change or repeal any Bylaw adopted by the Board of Directors by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation; and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with any amendment or supplement thus adopted by the stockholders. I. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide. * * * * 4. This Amended and Restated Certificate of Incorporation has been duly approved by the Board of Directors of this Corporation. 5. This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 228 and 245 of the (General Corporation Law of the State of Delaware by the Board of Directors and the stockholders of the Corporation. IN WITNESS WHEREOF, TiVo Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by the President and the Secretary this 14th day of April, 1999. TIVO INC. By: /s/ Michael Ramsey ------------------------------ Michael Ramsey, President ATTEST: By: /s/ Alan C. Mendelson ---------------------------- Alan C. Mendelson, Secretary EX-5 7 s301977.txt Exhibit 5 NOTE, WARRANT AND UNIT PURCHASE AGREEMENT TiVo Inc. 2160 Gold Street PO Box 2160 Alviso, California 95002 The undersigned (the "Investor"), hereby confirms its agreement with you as follows: 1. This Note, Warrant and Unit Purchase Agreement (the "Agreement") is made as of the date set forth below between TiVo Inc., a Delaware corporation (the "Company"), and the Investor. 2. The Company has authorized the sale and issuance of up to $51,750,000 aggregate principal amount of 7% Convertible Senior Notes due 2006 (each a "Note"), 2,536,766 warrants (each a "Five-Year Warrant") to purchase one share of TiVo common stock, par value $.001 per share (the "Common Stock") and 3,843,582 units (each a "Unit"), each consisting of (a) one warrant (each a "One-Year Warrant") to purchase one share of Common Stock and one warrant (each a "Five-Year Terminable Warrant" and, together with the Five-Year Warrants and the One-Year Warrants, the "Warrants"; the Notes and the Warrants are hereinafter referred to as the "Securities") to purchase .33 of a share of Common Stock, to certain investors in a private placement (the "Offering"). Robertson Stephens, Inc., Thomas Weisel Partners LLC and Tucker Anthony Sutro Capital Markets, Inc. are acting as the exclusive placement agents (the "Placement Agents") in the offering of the Securities. The Notes are being issued pursuant to an Indenture, dated as of August 28, 2001 (the "Indenture") by and between the Company and The Bank of New York, as trustee (the "Trustee"). The Five-Year Warrants are being issued pursuant to a Warrant Agreement, dated as of August 28, 2001 (the "Five-Year Warrant Agreement") by and between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"). The One-Year Warrants are being issued pursuant to a Warrant Agreement, dated as of August 28, 2001 (the "One-Year Warrant Agreement") by and between the Company and The Bank of New York, as warrant agent. The Five-Year Terminable Warrants are being issued pursuant to a Warrant Agreement, dated as of August 28, 2001 (the "Five-Year Terminable Warrant Agreement," and together with the Five-Year Warrant Agreement and the One-Year Warrant Agreement, the "Warrant Agreements") by and between the Company and The Bank of New York, as warrant agent. 3. The Company and the Investor agree that the Investor will purchase from the Company and the Company will sell to the Investor $10,000,000.00 principal amount of Notes, 490,196 Five-Year Warrants to purchase one share of Common Stock (which number of Five-Year Warrants shall be equal to 49.0196 shares per $1,000 principal amount of Notes purchased by Investor hereunder) and 742,721 Units (which number of Units shall be equal to 74.2721 Units per $1,000 principal amount of Notes purchased by Investor hereunder), for an aggregate purchase price of $ 10,000,000.00 (the "Purchase Price"), pursuant to the Terms and Conditions for Purchase of Securities attached hereto as Annex I and incorporated herein by this reference as if fully set forth herein. The Purchase Price shall be satisfied in the following manner: $5,000,000 in cash and $5,000,000 in broadcast and cable television advertising inventory on Investor's network pursuant to the terms and conditions of the Letter Agreement, dated as of the date hereof, between the Company and the Investor. The Company and the Investor agree that the fair value to the Company of the advertising inventory described above for which Securities will be issued is not less than $5,000,000. The Securities sold to Investors will be evidenced by certificated securities registered in the names of such Investors as more fully described in Annex I attached hereto. 4. All transferees of the Securities and the Common Stock into which the Securities are convertible or exercisable shall be bound by the transfer restrictions set forth herein and in the Indenture and the Warrant Agreements. Please confirm that the foregoing correctly sets forth the agreement between us by signing in the space provided below for that purpose. Dated as of: August 16, 2001 NATIONAL BROADCASTING COMPANY, INC. ----------------------------------- "INVESTOR" By: /s/ David Zaslav Print Name:David Zaslav Title:Executive Vice President Address:30 Rockefeller Plaza New York, NY 10112 AGREED AND ACCEPTED: TIVO INC. By: /s/ David H.Courtney ------------------------------- Print Name: David H. Courtney Title: Senior Vice President, Finance and Adminstration and Chief Financial Officer ANNEX I TERMS AND CONDITIONS FOR PURCHASE OF SECURITIES 1. Authorization and Sale of the Securities. Subject to the terms and conditions of this Agreement, the Company has authorized the sale of the Securities. 2. Agreement to Sell and Purchase the Securities; Subscription Date. 2.1 At the Closing (as defined in Section 3), the Company will sell to the Investor, and the Investor will purchase from the Company, upon the terms and conditions hereinafter set forth, the number of Securities set forth on the first page of the Agreement (the "First Page") to which these Terms and Conditions for Purchase of Securities are attached as Annex I at the purchase price set forth on such First Page (the "Purchase Price"). 2.2 The Company may enter into this same form of Agreement (except as to the form of consideration) with certain other investors (the "Other Investors") and may complete sales of Securities to them. (The Investor and the Other Investors are hereinafter sometimes collectively referred to as the "Investors," and this Agreement and the Agreements executed by the Other Investors are hereinafter sometimes collectively referred to as the "Agreements.") The Company will accept executed Agreements from the Investors for the purchase of Securities commencing upon the date on which the Company provides the Investors with the proposed purchase price for the Securities and concluding upon the date (the "Subscription Date") on which the Company has notified Robertson Stephens, Inc., on behalf of the Placement Agents, in writing that it is no longer accepting Agreements from Investors for the purchase of Securities. 2.3 On August 24, 2001, Investor will wire in same-day funds the Purchase Price into an escrow account (the "Escrow Account"). The Escrow Account will be governed by an escrow agreement dated the date hereof (substantially in the form of Exhibit D hereto, the "Escrow Agreement") by and among the Company, the Investors and the escrow agent named therein. The funds held in the Escrow Account will be released as specified in the Escrow Agreement. 2.4 Investor acknowledges that the Company intends to pay the Placement Agents a fee in respect of the sale of the Securities to the Investor and a financial advisor a fee in connection with the completion of the Offering. Each of the parties hereto represents that, on the basis of any actions and agreements by it, there are no other brokers or finders entitled to compensation in connection with the sale of the Securities to the Investor. 3. Closing. The completion of the purchase and sale of the Securities (the "Closing") shall occur at the offices of Latham & Watkins, 505 Montgomery St., Suite 1900, San Francisco, California 94111, or such other place to be specified by the Company and the Placement Agents, and at such time (the "Closing Date") as the Investors will be notified in advance by the Placement Agents. The Notes sold to Investors will be evidenced by certificated securities and will be mailed to such Investors by overnight courier on the Closing Date to each such Investor's address set forth on a First Page hereto. Copies of such certificated Notes will be sent via facsimile to such Investors on the Closing Date. The Notes will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Notes sold to or held by "affiliates" of the Company (as defined in Rule 501(b) of Regulation D under the Securities Act, "Affiliates") may be imprinted with an additional legend that prohibits their transfer except in accordance therewith. The Warrants sold to Investors will be evidenced by certificated securities and will be mailed to such Investors by overnight courier on the Closing Date. Copies of such certificated Warrants will be sent via facsimile to such Investors on the Closing Date. The Warrants will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Warrants sold to or held by Affiliates may be imprinted with an additional legend that prohibits their transfer except in accordance therewith. The Company's obligation to issue the Securities to the Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) the tender to the Company of the Purchase Price; (b) Investors shall have tendered to the Company the aggregate purchase price for at least $40,000,000 of Securities in cash; (c) receipt by the Company of completed versions of Exhibit A and Exhibit B attached hereto from each Investor; (d) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing; (e) the execution and delivery by each of the Investors of the Registration Rights Agreement, dated as of August 28, 2001 (the "Registration Rights Agreement"); (f) the execution and delivery by the Trustee of the Indenture; (g) the execution and delivery by the Warrant Agent of each Warrant Agreement; and (h) no material controversy involving any of the Company's stockholders with respect to the Offering shall have arisen such that The Nasdaq Stock Market does not permit the issuance of the Securities without the approval of the Company's stockholders at a stockholder meeting. The Investor's obligation to purchase the Securities shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) Investors shall have executed Agreements for the purchase of at least $40,000,000 principal amount of Notes and Warrants and shall have tendered to the Company for the purchase of the Securities at least $40,000,000 in cash; (b) the representations and warranties of the Company set forth herein shall be true and correct in all material respects; (c) the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, including delivery of the opinion of counsel required by Section 4.17 hereof; (d) the execution and delivery by the Company and each of the Investors of the Registration Rights Agreement; (e) the execution and delivery by the Company and the Trustee of the Indenture; (f) the execution and delivery by the Company and the Warrant Agent of each Warrant Agreement; and (g) no material controversy involving any of the Company's stockholders with respect to the Offering shall have arisen such that The Nasdaq Stock Market does not permit the issuance of the Securities without the approval of the Company's stockholders at a stockholder meeting. 4. Representations, Warranties and Covenants of the Company. Except as otherwise described in the private placement memorandum, dated August 16, 2001, delivered to the Investors (including the documents incorporated by reference therein and the documents attached as exhibits thereto (the "Memorandum"), in the Company's periodic reports on Forms 10-Q and 10-K, in the Company's definitive proxy statement on Form 14A and in the Company's current reports on Form 8-K as filed by the Company with the Securities and Exchange Commission in 2001 (the "SEC Documents"), and in the Company's press releases dated April 5, 2001 and July 10, 2001 (collectively, including the documents incorporated by reference therein, the "Company Information"), which qualify the following representations and warranties in their entirety, the Company hereby represents and warrants to, and covenants with, the Investor, as follows: 4.1 Organization. The Company is duly incorporated and validly existing in good standing under the laws of the jurisdiction of its organization. The Company has full power and authority to own, operate and occupy its properties and to conduct its business as presently conducted and is registered or qualified to do business and in good standing in each jurisdiction in which it owns or leases property or transacts business and where the failure to be so qualified would have a material adverse effect upon the business, financial condition, properties or operations of the Company and its subsidiary, taken as a whole ("Material Adverse Effect"), and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. 4.2 Due Authorization. The Company has all requisite power and authority to execute, deliver and perform its obligations under the Agreements, the Indenture, the Notes, the Warrant Agreements, the Warrants and the Registration Rights Agreement (the "Operative Documents") and the Operative Documents have been duly authorized and validly executed and delivered by the Company and (assuming the due authorization, execution and delivery of each Operative Document by the other parties thereto) constitute legal, valid and binding agreements of the Company enforceable against the Company in accordance with their terms, except as rights to indemnity and contribution may be limited by state or federal securities laws or the public policy underlying such laws, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 4.3 Non-Contravention. The execution and delivery of the Agreements, the issuance and sale of the Securities to be sold by the Company under the Agreements, the issuance by the Company of shares of Common Stock upon conversion of the Notes and exercise of the Warrants (the "Shares"), the fulfillment of the terms of the Agreements and the consummation of the transactions contemplated thereby will not (A) conflict with or constitute a violation of, or default (with the passage of time or otherwise) under, (i) any material bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which the Company is a party or by which it or its property is bound, where such conflict, violation or default is likely to result in a Material Adverse Effect, (ii) the charter, by-laws or other organizational documents of the Company, or (iii) any law, administrative regulation, ordinance or order of any court or governmental agency, arbitration panel or authority binding upon the Company or its property, where such conflict, violation or default is likely to result in a Material Adverse Effect, or (B) result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any of the material properties or assets of the Company or an acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or any material indenture, mortgage, deed of trust or any other agreement or instrument to which the Company is a party or by which it is bound or to which any of the property or assets of the Company is subject. No consent, approval, authorization or other order of, or registration, qualification or filing with, any regulatory body, administrative agency, or other governmental body in the United States is required for the execution and delivery of the Agreements, the valid issuance and sale of the Securities and the issuance of the Shares issuable upon conversion and exchange thereof, other than such as have been made or obtained, and except for any securities filings required to be made under federal or state securities laws. 4.4 Capitalization. Except for any shares, options, or shares issuable upon exercise of options issued pursuant to employee benefit plans disclosed in the Company's SEC Documents, the capitalization of the Company is as described in the Company's SEC Documents. The Securities have been duly authorized, and when issued and paid for in accordance with the terms of the Agreements, will be duly and validly issued and fully paid. The Shares have been duly authorized, and when issued and paid for in accordance with the terms of the Securities, will be duly and validly issued, fully paid and nonassessable. The outstanding shares of capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and were not issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in or contemplated in the Memorandum or in the Company's SEC Documents, there are no outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind to which the Company is a party and relating to the issuance or sale of any capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. Except as disclosed in the Memorandum or the Company's SEC Documents, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Common Stock to which the Company is a party. 4.5 Legal Proceedings. There is no material legal or governmental proceeding pending to which the Company is a party or of which the business or property of the Company is subject that is not disclosed in the Memorandum or Company's SEC Documents. 4.6 No Violations. The Company is not in violation of its charter, bylaws or other organizational document, or in violation of any law, administrative regulation, ordinance or order of any court or governmental agency, arbitration panel or authority applicable to the Company, which violation, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect, or is in default (and there exists no condition which, with the passage of time or otherwise, would constitute a default) in the performance of any material bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any other material agreement or instrument to which the Company is a party or by which the Company is bound or by which the property of the Company is bound, which would be reasonably likely to have a Material Adverse Effect. 4.7 Governmental Permits, Etc. The Company has all necessary franchises, licenses, certificates and other authorizations from any foreign, federal, state or local government or governmental agency, department or body that are currently necessary for the operation of the business of the Company as currently conducted except where the failure to currently possess could not reasonably be expected to have a Material Adverse Effect. 4.8 Intellectual Property. (i) The Company owns or possesses adequate rights to use all patents, patent rights, inventions, trade secrets, know-how, trademarks, service marks, trade names, copyrights or other information (collectively, "Intellectual Property") which are necessary to conduct its businesses as now or as proposed to be conducted by it as described in the SEC Documents, except where the failure to currently own or possess would not have a Material Adverse Effect, (ii) the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with asserted rights of others with respect to any Intellectual Property which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to have a Material Adverse Effect, and (iii) to the Company's knowledge, none of the patent rights owned or licensed by the Company are unenforceable or invalid. 4.9 Financial Statements. The financial statements of the Company and the related notes contained in the Company's SEC Documents present fairly, in accordance with generally accepted accounting principles, the financial position of the Company as of the dates indicated, and the results of its operations and cash flows for the periods therein specified, subject, in the case of unaudited financial statements for interim periods, to normal year-end audit adjustments. Such financial statements (including the related notes) have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods therein specified, except as disclosed in the Company's SEC Documents and except that unaudited financial statements may not contain all footnotes required by generally accepted accounting principles. 4.10 No Material Adverse Change. Since April 30, 2001, there has not been any loss or damage (whether or not insured) to the physical property of the Company which has been sustained which has a Material Adverse Effect. 4.11 Nasdaq Compliance. The Company's Common Stock is registered pursuant to Section 12(g) of the Exchange Act and is listed on the Nasdaq National Market (the "Nasdaq Stock Market"), and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq Stock Market. The Company has received written confirmation from the Nasdaq Stock Market, Inc. that, with respect to the Offering, the Company has satisfied its obligations under the shareholder approval requirements of the Nasdaq Stock Market's Marketplace Rules. 4.12 Reporting Status. The Company has filed in a timely manner all documents that the Company was required to file under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), during the 12 months preceding the date of this Agreement. The following documents complied in all material respects with the SEC's requirements as of their respective filing dates, and the information contained therein as of the respective dates thereof did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under where they were made, not misleading: (a) The Company's amended and restated annual report on Form 10-K for the year ended December 31, 2000, filed on April 9, 2001 (the "10-K/A"); (b) The Company's transition report on Form 10-K for the one-month transition period ended January 31, 2001, filed on April 30, 2001 (the "10-K") (c) The Company's quarterly report on Form 10-Q for the quarter ended April 30, 2001, filed on June 14, 2001; (d) The Company's current reports on Form 8-K, filed on February 1, 2001, February 14, 2001, February 28, 2001, March 15, 2001, March 19, 2001 and July 24, 2001; and (e) The Company's proxy statement for the 2001 annual meeting of stockholders, filed on April 30, 2001 (excluding the performance graph, the Compensation Committee Report and the Audit Committee Report contained therein). 4.13 Listing. The Company shall comply with all requirements of the National Association of Securities Dealers, Inc. with respect to the issuance of the Securities and the listing of the Shares on the Nasdaq Stock Market. 4.14 Foreign Corrupt Practices. Neither the Company nor, to the knowledge of the Company, any agent or other person acting on behalf of the Company, have (i) directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or made by any person acting on its behalf and of which the Company is aware in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended. 4.15 No Manipulation of Stock. The Company has not taken and will not, in violation of applicable law, take, any action outside the ordinary course of business designed to or that might reasonably be expected to cause or result in unlawful manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares. 4.16 Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Securities to be sold to the Investor hereunder will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with. 4.17 Legal Opinion. The Company shall cause to be delivered to the Investors and the Placement Agents by counsel to the Company a legal opinion substantially in the form attached hereto as Exhibit C. 4.18 Securities Law Compliance. Assuming the accuracy of the representations and warranties of the Investors in the Agreements, it is not necessary to register the Securities or the Shares under the Securities Act of 1933, as amended (the "Securities Act"). The Five-Year Warrants are not of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system. Neither the Company nor any of its Affiliates has (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security which is or could be integrated with the sale of the Securities or the Shares or (ii) engaged in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or the Shares or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. The Company shall comply with all applicable laws, including the Securities Act, and any applicable state securities laws in connection with the offer and sale of the Shares and other securities and property deliverable, (i) upon conversion of the Notes and (ii) upon exercise of the Warrants. 4.19 Accountants. Arthur Andersen LLP, which has expressed its opinion with respect to the financial statements set forth in the 10-K/A and the 10-K, are independent accountants as required by the Securities Act and the rules and regulations promulgated thereunder (the "Rules and Regulations"). 4.20 Contracts. The contracts described in the SEC Documents or attached as exhibits thereto that are material to the Company are in full force and effect on the date hereof, and neither the Company nor, to the Company's knowledge, any other party to such contracts is in breach of or default under any of such contracts which breach or default would have a Material Adverse Effect. 4.21 Taxes. The Company has filed all necessary federal, state and foreign income and franchise tax returns due prior to the date hereof and has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax deficiency which has been or might be asserted or threatened against it which could reasonably be expected to have a Material Adverse Effect. 4.22 Investment Company. The Company is not an "investment company" or an "affiliated person" of, or "promoter" or "principal underwriter" for an investment company, within the meaning of the Investment Company Act of 1940, as amended. 4.23 Insurance. The Company maintains and will continue to maintain insurance of the types and in the amounts that the Company reasonably believes is adequate for its business, all of which insurance is in full force and effect. 4.24 Reports. The Company shall file the reports required to be filed by it under the Exchange Act, including the rules, regulations and polices adopted by the Commission thereunder, in a timely manner in accordance with the requirements of the Exchange Act, and if at any time the Company is not required to file such reports, the Company shall (i) upon the request of any holder of the Five-Year Warrants, make available such information as necessary to permit sales of such Five-Year Warrants pursuant to Rule 144A under the Securities Act and (ii) upon the request of any holder of the Notes, the One-Year Warrants or the Five-Year Terminable Warrants, make available the same information as provided to a holder of Five-Year Warrants pursuant to the preceding clause (i). 4.25 Listing of Warrants on The Nasdaq Stock Market. The Company shall use its reasonable best efforts to apply for listing of the Warrants on The Nasdaq Stock Market if (i) the Company has received a written request to so list the Warrants from the holders of at least an aggregate of 25% of the Warrants outstanding as of the date of original issuance and such request contains a covenant that such holders shall reimburse, severally and not jointly, the Company for all fees and expenses, including reasonable attorneys' fees, that the Company reasonably incurs in connection therewith; (ii) at the time of the receipt of such request and at the time of such listing, the Warrants qualify for designation as a Nasdaq National Market or Nasdaq Small Cap Market security that may be listed on The Nasdaq National Market or The Nasdaq Small Cap Market, respectively; and (iii) the Company determines, at the time of the receipt of such request and at the time of such listing, that it can so list the Warrants in compliance with the rules and regulations of the Securities and Exchange Commission. 4.26 Disclosure. The Memorandum, as of its date and as of the date hereof, does not, and, as of the Closing Date, will not, contain an untrue statement of a material fact or an omission to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. 4.27 No Trigger of Antidilution Provisions. None of the execution, delivery or performance of this Agreement by the Company will trigger any antidilution adjustment with respect to the exercise or conversion price of any securities of the Company outstanding as of the date hereof. 5. Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor has reviewed the Memorandum, the Notes, the Indenture, the Warrant Agreements, and the Registration Rights Agreement, together with the Investor's professional advisors, if any; (ii) the Investor has had an opportunity to ask the Company's representatives questions regarding the offering and receive answers from the Company; (iii) the Investor has been afforded an opportunity to request from the Company, and to review, all additional information the Investor considered to be necessary to verify the accuracy of or to supplement the information in the Memorandum; (iv) the Investor is either (a) an institutional "accredited investor" (as defined under Rule 501(a) (1), (2), (3), or (7) of Regulation D under the Securities Act) or (b) an individual "accredited investor" (as defined under Rule 501(a)(5) or (6) of Regulation D under the Securities Act), and the Investor is also knowledgeable, sophisticated and experienced in making and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Securities and the Shares, including investments in securities issued by comparable companies; (v) by reason of the Investor's business or financial experience, or that of the Investor's financial advisor, Investor is capable of evaluating the merits and risks of an investment in the Securities and the Shares and of protecting the Investor's own interests in connection with the transaction; (vi) the Investor has adequate means to provide for the Investor's financial needs with no expectation of a return on the Investor's investment, including a complete loss of the investment; (vii) the Investor understands that the Securities and the Shares have not been registered under the Securities Act and may not be resold unless they are so registered or unless an exemption from registration is available; (viii) the Investor is acquiring the Securities for Investor's own account, for investment only and not with a view toward their distribution within the meaning of the Securities Act; (ix) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities or Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (x) the Investor has answered all questions on the first page of the Agreement, the Securities Questionnaire attached hereto as Exhibit A and Selling Securityholder Notice and Questionnaire attached hereto as Exhibit B, and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date; (xi) the Investor will notify the Company immediately of any change in any of such information in the Securities Questionnaire or the Selling Securityholder Notice and Questionnaire until such time as the Registration Statement is declared effective; and (xii) the Investor has, in connection with its decision to purchase the number of Securities set forth on the first page of the Agreement, relied only upon the Company Information provided to the Investor by the Company in contemplation of this offering and the representations and warranties of the Company contained herein. Investor understands that its acquisition of the Securities and the Shares has not been registered under the Securities Act, or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. The Investor acknowledges, represents and agrees that if it resells or transfers the Securities or the Shares, it will do so only: (a) to the Company or any of its subsidiaries; (b) with respect to the Five-Year Warrants and, in the event the Shares become eligible for resale or transfer under Rule 144A under the Securities Act, the Shares, to a qualified institutional buyer in compliance with Rule 144A; (c) to an accredited investor (as defined in Rule 501(a)(1), (2), (3), (5), (6) or (7) of Regulation D under the Securities Act) that, prior to such transfer, furnishes (i) to the Trustee, as registrar for the Notes, a signed letter substantially in the form of Exhibit B to the Indenture, (ii) to the Warrant Agent, as registrar for the Warrants, a signed letter substantially in the form of Exhibit B to the each of the Warrant Agreements, or, as applicable, (iii) to the transfer agent for the Company's Common Stock, a signed letter substantially in the form provided by such transfer agent, each containing certain representations and agreements relating to the restrictions on transfer of the Securities and Shares; (d) outside the United States in compliance with Rule 904 under the Securities Act; (e) in accordance with the exemption from registration provided by Rule 144 under the Securities Act; (f) in accordance with another valid exemption from the registration requirements of the Securities Act; or (g) in accordance with a registration statement that has been declared effective under the Securities Act and which continues to be effective at the time of such transfer. The Investor agrees that, prior to such transfer, it will furnish to the Company, and the Trustee, the Warrant Agent or the Transfer Agent, as applicable, an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as they may reasonably require to confirm that any transfer by the Investor of the Securities or the Shares complies with the foregoing restrictions and is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. 5.2 The Investor acknowledges, represents and agrees that it will, and each subsequent holder will be required to, give each person to whom it transfers Securities or Shares notice of any restrictions on transfer of such Securities or Shares, if then applicable. 5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Securities and the Shares, or possession or distribution of offering materials in connection with the issuance of the Securities and the Shares, in any jurisdiction outside the United States where action for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities and Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agents are not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Securities and the Shares other than the Memorandum and the documents incorporated therein by reference. 5.4 The Investor hereby covenants with the Company not to make any sale of (i) the Securities without complying with the provisions of this Agreement, the Registration Rights Agreement, the Indenture and the Warrant Agreements, as applicable, and without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and (ii) the Shares without complying with the provisions of this Agreement, the Registration Rights Agreement, the Indenture and the Warrant Agreements, as applicable, and without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the Securities and Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that, pursuant to the provisions of the Registration Rights Agreement, there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus. 5.5 The Investor acknowledges and agrees that, in compliance with the Warrant Agreements, except in the case of a "Cashless Exercise" of the Five-Year Warrants or the Five-Year Terminable Warrants that is in compliance with Section 3(a)(9) of the Securities Act and that is pursuant to Section 10(b) of the Five-Year Warrant Agreement or the Five-Year Terminable Warrant Agreement, as applicable, or in the case such Securities were sold pursuant to an effective shelf registration statement covering such Securities, until the end of the holding period under Rule 144(k) of the Securities Act, unless otherwise agreed by the Company in writing, in order to exercise the Warrants for Shares of Common Stock, such holder must, among other things, execute and deliver a letter for the benefit of the Company, substantially in the form included as Exhibit B to each of the Warrant Agreements. In compliance with the Indenture (with respect to Shares issued upon the conversion of Notes) or the Warrant Agreements (with respect to Shares issued upon exercise of Warrants), until the end of the holding period under Rule 144(k) of the Securities Act, unless otherwise agreed by the Company in writing, if a holder proposes to sell or transfer Shares other than pursuant to Section 5.1(g) above (unless such Shares have been issued pursuant to a valid exemption from the registration requirements under the Securities Act upon conversion of Notes or exercise of Warrants that have been transferred pursuant to Section 5.1(g) above), such purchaser or transferee must execute and deliver a letter for the benefit of the Company, substantially in the form included as Exhibit B to the Indenture, if such Shares were issued upon conversion of Notes, or substantially in the form included as Exhibit B to the appropriate Warrant Agreement, if such Shares were issued upon exercise of the Warrants. In addition to the foregoing, the Investor acknowledges and agrees that, prior to any such exercise or transfer described in this Section 5.5, it will furnish to the Company, and the Trustee, Warrant Agent or the Transfer Agent, as applicable, an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as they may reasonably require to confirm that any exercise by the Investor of the Warrants or transfer by the Investor of the Shares complies with the foregoing restrictions and is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. 5.6 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable. 5.7 The Investor's purchase of the Securities is based on the Memorandum and discussions with the Company and the Placement Agents, and not as a result of any other communication, notice, letter advertisement, article, publication, news release, broadcast or other communication. 5.8 The Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Securities or Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Securities and Shares. 6. Survival of Representations, Warranties and Agreements. Notwithstanding any investigation made by any party to this Agreement or by the Placement Agents, all covenants, agreements, representations and warranties made by the Company and the Investor herein shall survive the execution of this Agreement, and the payment by the Investor for the Securities being purchased pursuant to this Agreement. 7. Registration of the Shares. The registration rights granted in connection with the Securities are set forth in the Registration Rights Agreement, of even date herewith. 8. Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be mailed (A) if within domestic United States by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, or by facsimile, or (B) if delivered from outside the United States, by International Federal Express or facsimile, and shall be deemed given (i) if delivered by first-class registered or certified mail domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight carrier, one (1) business day after so mailed, (iii) if delivered by International Federal Express, two (2) business days after so mailed, (iv) if delivered by facsimile, upon electric confirmation of receipt and shall be delivered as addressed as follows: (a) if to the Company, to: TiVo Inc. 2160 Gold Street Alviso, California 95002 Attn: General Counsel Phone: (408) 519-9100 Telecopy: (408) 519-5333 (b) with a copy to: Latham & Watkins 505 Montgomery Street, Suite 1900 San Francisco, California 94111 Attn: Laura Gabriel, Esq. Phone: (415) 391-0600 Telecopy: (415) 395-8095 (c) if to the Investor, at its address on the First Page hereto, or at such other address or addresses as may have been furnished to the Company in writing. 9. Termination. This Agreement shall terminate on the earlier of (a) the date on which the Company and the Investor agree by mutual written consent to terminate this Agreement, (b) the Closing or (c) August 31, 2001. 10. Waiver of Conflicts. Each party to this Agreement acknowledges that Latham & Watkins ("Latham"), counsel for the Company, has in the past performed and may continue to perform legal services for certain of the Investors in matters unrelated to the transactions described in this Agreement, including the representation of such Investors in equity financings and other matters. Accordingly, each party to this Agreement hereby (1) acknowledges that it has had an opportunity to ask for information relevant to this disclosure; (2) acknowledges that Latham represented the Company in the transaction contemplated by this Agreement and has not represented any individual Investor or any individual stockholder or employee of the Company in connection with such transaction; and (3) gives its informed consent to Latham's representation of certain of the Investors in such unrelated matters and to Latham's representation of the Company in connection with this Agreement and the transactions contemplated hereby. 11. Changes. This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Investor. 12. Allocation of Purchase Price Among Notes and Warrants. The parties to this Agreement acknowledge that, for United States federal income tax purposes and based on the relative fair market values of the Notes and the Warrants on the date hereof, the Company will allocate 81% of the Purchase Price to the Notes, 11% of the Purchase Price to the Five-Year Warrants, 6% of the Purchase Price to the One-Year Warrants and 2% of the Purchase Price to the Five-Year Terminable Warrants. 13. Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be part of this Agreement. 14. Severability. In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 15. Governing Law. This Agreement shall be deemed to be a contract made under the laws of New York, and for all purposes shall be governed by and construed in accordance with the laws of New York, including, without limitation, Section 5-1401 of the New York General Obligations Law. 16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. 17. Confidential Disclosure Agreement. Notwithstanding any provision of this Agreement to the contrary, any confidential disclosure agreement previously entered into between the Company and the Investor in connection with the transactions contemplated by this Agreement shall remain in full force and effect in accordance with its terms following the execution of this Agreement and the consummation of the transactions contemplated hereby. EXHIBIT A SECURITIES QUESTIONNAIRE Pursuant to Section 5.1 of the Agreement, please provide us with the following information: 1. The exact name that your interests in the Securities are to be registered in: ________________________ 2. The relationship between the Investor and the registered holder listed in response to item 1 above: ________________________ 3. The mailing address of the registered holder listed in response to item 1 above: ________________________ 4. The telephone number of the registered holder listed in response to item 1 above: ________________________ 5. The facsimile number of the registered holder listed in response to item 1 above: ________________________ 6. The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: ________________________ 7. You represented in Annex I to the Purchase Agreement that you are an "accredited investor" (as defined in Rule 501(a)(1), (2), (3), (5), (6) or (7) of Regulation D under the Securities Act of 1933, as amended). Please indicate, by checking "yes" or "no" below, whether you are also a qualified institutional buyer (as defined in Rule 144A under the Securities Act of 1933, as amended): |_| Yes (Investor is a qualified institutional buyer) |_| No (Investor is not a qualified institutional buyer) EXHIBIT B SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE The undersigned holder of 7% Convertible Senior Notes due 2006 ("notes") of TiVo Inc., a Delaware corporation (the "Company"), or of warrants ("warrants") to purchase shares of the Company's common stock, par value $.001 per share (the "common stock"), or of shares of common stock issued or issuable upon conversion of the notes (such shares of common stock, the "Transfer Restricted Note Securities") or of common stock issued or issuable upon exercise of the warrants (such shares of common stock, the "Transfer Restricted Warrant Securities" and together with the notes, warrants and Transfer Restricted Note Securities, the "Transfer Restricted Securities"), understands that the Company has filed or intends to file with the Securities and Exchange Commission a registration statement on Form S-3 (the "Shelf Registration Statement") for the registration and the resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), of the Transfer Restricted Securities in accordance with the terms of the Registration Rights Agreement, dated as of August 28, 2001 (the "Registration Rights Agreement") among the Company and the initial holders of the notes and the warrants. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Registration Rights Agreement. Each holder of Transfer Restricted Securities is entitled to the benefits of the Registration Rights Agreement. In order to sell or otherwise dispose of any Transfer Restricted Securities pursuant to the Shelf Registration Statement, a holder of Transfer Restricted Securities generally will be required to be named as a selling securityholder in the related prospectus or a supplement thereto (as so supplemented, the "Prospectus"), deliver the Prospectus to purchasers of Transfer Restricted Securities and be bound by the provisions of the Registration Rights Agreement (including certain indemnification provisions, as described below). Holders must complete and deliver this Notice and Questionnaire in order to be named as selling securityholders in the Prospectus. Holders of Transfer Restricted Securities who do not complete, execute and return this Notice and Questionnaire (1) will not be named as selling securityholders in the Shelf Registration Statement or the Prospectus and (2) may not use the Prospectus for resales of Transfer Restricted Securities. Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and the Prospectus. Holders of Transfer Restricted Securities are advised to consult their own securities law counsel regarding the consequences of being named or not named as a selling securityholder in the Shelf Registration Statement and the Prospectus. Notice The undersigned holder (the "Selling Securityholder") of Transfer Restricted Securities hereby gives notice to the Company of its intention to sell or otherwise dispose of Transfer Restricted Securities owned by it and listed below in Item (3), unless otherwise specified in Item (3), pursuant to the Shelf Registration Statement. The undersigned, by signing and returning this Notice and Questionnaire, understands and agrees that it will be bound by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement. Pursuant to the Registration Rights Agreement, the undersigned has agreed to indemnify and hold harmless the Company, the Company's directors and the Company's officers who sign the Shelf Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against certain losses arising in connection with certain statements concerning the undersigned made in the Shelf Registration Statement or the related prospectus in reliance upon the information provided in this Notice and Questionnaire. The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate and complete: Questionnaire 1. (a) Full Legal Name of Selling Securityholder: _____________________________________________________________ (b) Full Legal Name of Registered Holder (if not the same as (a) above) through which Transfer Restricted Securities listed in Item (3) below are held: ____________________________________________________________ 2. Address for Notices to Selling Securityholder: ____________________________________________________________________ ____________________________________________________________________ Telephone: ------------------------------------------------------------------ Fax: ----------------------------------------------------------------------- Contact Person: -------------------------------------------------------------- 3. Ownership of Transfer Restricted Securities: (a) Type and amount of Transfer Restricted Securities owned: __________________________________________________________ (b) Type and amount of Transfer Restricted Securities to be registered: __________________________________________________________ 4. Ownership and Beneficial Ownership of Other Securities of the Company owned by the Selling Securityholder: Except as set forth below in this Item (4), the undersigned is not the beneficial or registered owner of any securities of the Company other than the Transfer Restricted Securities listed above in Item (3). (a) Type and Amount of Other Securities owned or beneficially owned: __________________________________________________________ __________________________________________________________ (b) CUSIP No(s). of such Other Securities beneficially owned: __________________________________________________________ 5. Relationship with the Company: Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. State any exceptions here: ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ 6. Plan of Distribution: Except as set forth below, the undersigned (including its donees or pledgees) intends to distribute the Transfer Restricted Securities listed above in Item (3) pursuant to the Shelf Registration Statement only as follows (if at all): Such Transfer Restricted Securities may be sold from time to time directly by the undersigned or alternatively, through underwriters, broker-dealers or agents. If the Transfer Restricted Securities are sold through underwriters or broker-dealers, the Selling Securityholder will be responsible for underwriting discounts and commissions and/or agent's commissions. Such Transfer Restricted Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Transfer Restricted Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Transfer Restricted Securities or otherwise, the undersigned may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Transfer Restricted Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell Transfer Restricted Securities short and deliver Transfer Restricted Securities to close out such short positions, or loan or pledge Transfer Restricted Securities to broker-dealers that in turn may sell such securities. State any exceptions here: ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ Note: In no event will such method(s) of distribution take the form of an underwritten offering of the Transfer Restricted Securities without the prior agreement of the Company. The undersigned acknowledges that it understands its obligation to comply with the provisions of the Exchange Act and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations), in connection with any offering of Transfer Restricted Securities pursuant to the Shelf Registration Statement. The undersigned agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions. The Selling Securityholder hereby acknowledges its obligations under the Registration Rights Agreement to indemnify and hold harmless certain persons as set forth therein. Pursuant to the Registration Rights Agreement, the Company has agreed under certain circumstances to indemnify the Selling Securityholder against certain liabilities. In accordance with the undersigned's obligation under the Registration Rights Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains effective. All notices hereunder and pursuant to the Registration Rights Agreement shall be made in writing, by hand delivery, first-class mail or air courier guaranteeing overnight delivery at the address set forth below. In the absence of any such notification, the Company shall be entitled to continue to rely on the accuracy of the information in this Notice and Questionnaire. By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to items (1) through (6) above and the inclusion of such information in the Shelf Registration Statement and the Prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation, amendment or supplementation of the Shelf Registration Statement and the Prospectus. The terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Company and the Selling Securityholder with respect to the Transfer Restricted Securities owned by the Selling Securityholder and listed in Item (3) above. This agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts made in the State of New York. IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent. Date: ------------------------ -------------------------------------- Selling Securityholder (Print or type full legal name of holder of Transfer Restricted Securities) By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO: Company address Attention: ---------------------------- with a copy to: Company counsel Attention: ----------------------------- EXHIBIT C FORM OF OPINION OF LATHAM & WATKINS August ___, 2001 Robertson Stephens, Inc. Thomas Weisel Partners LLC Tucker Anthony Sutro Capital Markets, Inc. Investors Listed on Schedule A Hereto c/o Robertson Stephens, Inc. 555 California Street, Suite 2600 San Francisco, CA 94104 Re: TiVo Inc. Ladies and Gentlemen: We have acted as special counsel to TiVo Inc., a Delaware corporation (the "Company") in connection with the sale to the investors listed on Schedule A hereto (the "Investors") on the date hereof by the Company of $51,750,000 in aggregate principal amount of 7% Convertible Subordinated Notes due 2006 (the "Notes") convertible into shares of the Company's common stock, par value $.001 per share (the "Common Stock"), warrants (the "Investor Five-Year Warrants") to purchase 2,536,766 shares of Common Stock and units (the "Investor Units") consisting of warrants (the "Investor One-Year Warrants") to purchase 3,843,582 shares of Common Stock and warrants (the "Investor Five-Year Terminable Warrants" and, together with the Investor Five-Year Warrants and the Investor One-Year Warrants, the "Investor Warrants") to purchase 1,268,384 shares of Common Stock, pursuant to Note, Warrant and Unit Purchase Agreements, each dated as of August 23, 2001, between each Investor and the Company (collectively, the "Purchase Agreement"). The Notes, the Investor Five-Year Warrants and the Investor Units were offered to the Investors, on behalf of the Company, by Robertson Stephens, Inc. ("Robertson"), Thomas Weisel Partners LLC ("Weisel") and Tucker Anthony Sutro Capital Markets, Inc. ("Sutro") pursuant to a Private Placement Memorandum, dated August 23, 2001, including the documents incorporated by reference therein (the "Memorandum"). An additional 145,834 warrants (the "Robertson Five-Year Warrants," and together with the Investor Five-Year Warrants, the "Five-Year Warrants") and 220,960 units (the "Robertson Units," and together with the Investor Units, the "Units") consisting of 220,960 warrants (the "Robertson One-Year Warrants," and together with the Investor One-Year Warrants, the "One-Year Warrants") and 72,917 warrants (the "Robertson Five-Year Terminable Warrants," and, together with the Robertson Five-Year Warrants and the Robertson One-Year Warrants, the "Robertson Warrants," and the Robertson Five-Year Terminable Warrants, together with the Investor Five-Year Terminable Warrants, the "Five-Year Terminable Warrants," and the Five-Year Terminable Warrants together with the Five-Year Warrants and the One-Year Warrants, the "Warrants") were issued to Robertson pursuant to a Warrant and Unit Acquisition Agreement, dated as of the date hereof, between the Company and Robertson (the "Robertson Warrant Acquisition Agreement"). The Notes are being issued pursuant to an Indenture, dated as of the date hereof (the "Indenture"), between the Company and The Bank of New York, as trustee (in such capacity, the "Trustee"). The Five-Year Warrants are being issued pursuant to a Warrant Agreement, dated as of the date hereof (the "Five-Year Warrant Agreement") by and between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"). The One-Year Warrants are being issued pursuant to a Warrant Agreement, dated as of the date hereof (the "One-Year Warrant Agreement") by and between the Company and The Bank of New York, as warrant agent. The Five-Year Terminable Warrants are being issued pursuant to a Warrant Agreement, dated as of the date hereof (the "Five-Year Terminable Warrant Agreement," and together with the Five-Year Warrant Agreement and the One-Year Warrant Agreement, the "Warrant Agreements") by and between the Company and The Bank of New York, as warrant agent. This opinion is being rendered to you pursuant to Section 4.17 of the Purchase Agreement. The Purchase Agreement, the Indenture, the Notes, the Warrant Agreements, the Warrants and the Registration Rights Agreement (as defined in the Purchase Agreement) are sometimes referred to herein collectively as the "Operative Documents." Other capitalized terms used herein without definition have the meanings assigned to them in the Purchase Agreement. As such counsel, we have made such legal and factual examinations and inquiries 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. As to facts material to the opinions, statements and assumptions expressed herein, we have, with your consent, relied upon oral or written statements and representations of officers and other representatives of the Company and others. In addition, we have obtained and relied upon such certificates and assurances from public officials as we have deemed necessary. We are opining herein as to the effect on the subject transaction only of the federal laws of the United States, the internal laws of the State of New York and the General Corporation Law of the State of Delaware (the "DGCL"), 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. Whenever a statement herein is qualified by "to the best of our knowledge" or a similar phrase, it is intended to indicate that those attorneys in this firm who have rendered legal services in connection with the above transaction do not have current actual knowledge of the inaccuracy of such statement. However, except as otherwise expressly indicated, we have not undertaken any independent investigation to determine the accuracy of any such statement, and no inference that we have any knowledge of any matters pertaining to such statement should be drawn from our representation of the Company. Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof: 1. The Company is a corporation and is validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Memorandum. Based solely on certificates from public officials, we confirm that the Company is qualified to do business in California. 2. The Purchase Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. The issuance and sale of the Notes and Investor Warrants by the Company pursuant to the Purchase Agreement and the issuance of the Robertson Warrants pursuant to the Robertson Warrant Acquisition Agreement will not result in the violation by the Company of its Certificate of Incorporation or Bylaws, or the Delaware General Corporation Law or any federal or New York statute, rule, or regulation known to us to be applicable to the Company (other than federal or state securities laws, which are specifically addressed elsewhere herein). 3. The Indenture has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. 4. The Notes have been duly authorized by the Company and, when executed, issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Investors in accordance with the terms of the Purchase Agreement, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and, to the best of our knowledge, free of preemptive or similar rights contained in the Company's agreements (the "Material Agreements") listed under Items 4 and 10 of the exhibit lists to the Company's (i) Annual Report on Form 10-K for the fiscal year ended December 31, 2000, (ii) Amendment to Annual Report on Form 10-K/A for the fiscal year ended December 31, 2000, (iii) Transition Report on Form 10-K for the one-month transition period ended January 31, 2001 and (iv) Quarterly Report on Form 10-Q for the quarter ended April 30, 2001, other than the participation rights described in the Stockholders and Registration Rights Agreement (the "AOL Agreement"), dated as of June 9, 2000, by and between the Company and America Online, Inc., which rights have been waived. 5. The shares of Common Stock issuable as of the date hereof upon conversion of the Notes (the "Note Shares") have been duly authorized and reserved for issuance upon conversion of the Notes and, when issued and delivered upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and nonassessable and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 6. The Five-Year Warrant Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. 7. The Five-Year Warrants have been duly authorized by the Company and, when executed, issued and authenticated in accordance with the terms of the Five-Year Warrant Agreement and delivered to and paid for by the Investors and Robertson in accordance with the terms of the Purchase Agreement and the Robertson Warrant Acquisition Agreement, as applicable, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 8. The shares of Common Stock issuable as of the date hereof upon exercise of the Five-Year Warrants (the "Five-Year Warrant Shares") have been duly authorized and reserved for issuance upon exercise of the Five-Year Warrants, and when issued and delivered upon receipt by the Company of the exercise price payable upon exercise of the Five-Year Warrants in accordance with the terms of the Five-Year Warrants and the Five-Year Warrant Agreement, will be validly issued, fully paid and nonassessable and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 9. The One-Year Warrant Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. 10. The One-Year Warrants have been duly authorized by the Company and, when executed, issued and authenticated in accordance with the terms of the One-Year Warrant Agreement and delivered to and paid for by the Investors and Robertson in accordance with the terms of the Purchase Agreement and the Robertson Warrant Acquisition Agreement, as applicable, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 11. The shares of Common Stock issuable as of the date hereof upon exercise of the One-Year Warrants (the "One-Year Warrant Shares") have been duly authorized and reserved for issuance upon exercise of the One-Year Warrants, and when issued and delivered upon receipt by the Company of the exercise price payable upon exercise of the One-Year Warrants in accordance with the terms of the One-Year Warrants and the One-Year Warrant Agreement, will be validly issued, fully paid and nonassessable and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 12. The Five-Year Terminable Warrant Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. 13. The Five-Year Terminable Warrants have been duly authorized by the Company and, when executed, issued and authenticated in accordance with the terms of the Five-Year Terminable Warrant Agreement and delivered to and paid for by the Investors and Robertson in accordance with the terms of the Purchase Agreement and the Robertson Warrant Acquisition Agreement, as applicable, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 14. The shares of Common Stock issuable as of the date hereof upon exercise of the Five-Year Terminable Warrants (the "Five-Year Terminable Warrant Shares" and, together with the Five-Year Warrant Shares and the One-Year Warrant Shares, the "Warrant Shares") have been duly authorized and reserved for issuance upon exercise of the Five-Year Terminable Warrants, and when issued and delivered upon receipt by the Company of the exercise price payable upon exercise of the Five-Year Terminable Warrants in accordance with the terms of the Five-Year Terminable Warrants and the Five-Year Terminable Warrant Agreement, will be validly issued, fully paid and nonassessable and, to the best of our knowledge, free of preemptive or similar rights contained in the Material Agreements, other than the participation rights described in the AOL Agreement, which rights have been waived. 15. The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. 16. No registration under the Securities Act of the Notes or the Warrants, and no qualification of the Indenture under the Trust Indenture Act, is required for the purchase of the Notes and the Warrants by the Investors or Robertson in the manner contemplated by the Purchase Agreement, the Robertson Warrant Acquisition Agreement and the Memorandum. We express no opinion, however, as to when or under what circumstances any of the Notes, the shares of Common Stock issuable upon conversion of the Notes, the Warrants or the shares of Common Stock issuable upon exercise of the Warrants may be reoffered or resold. The opinions rendered in paragraphs 5, 8, 11 and 14 relating to the fully paid and non-assessable nature of the Note Shares and the Warrant Shares are subject to the following assumptions with respect to any Notes and Warrants issued for consideration other than cash: (i) at the time of any conversion of such Notes or exercise of such Warrants, not less than the amount of the purchase price for such Notes or Warrants, as applicable, that has been determined to be capital in accordance with DGCL Section 152 has been paid by the purchaser to the Company, and (ii) the purchaser of any such Notes or Warrants is subject to a binding obligation to pay the Company the balance of the purchase price for such Notes or Warrants. The opinions rendered in paragraphs 2, 3, 4, 6, 7, 9, 10, 12, 13 and 15 relating to the enforceability of the Purchase Agreement, the Indenture, the Notes, the Warrant Agreements, the Warrants and the Registration Rights Agreement, respectively, 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 and 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 any liquidated damages provisions contained in the Indenture, the Notes, the Warrant Agreements, the Warrants or the Registration Rights Agreement; (v) we express no opinion concerning the enforceability of the waiver of rights or defenses contained in Section 5.7 of the Indenture; and (vi) we express no opinion with respect to whether acceleration of the Notes may affect the collectibility of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon. We have not been requested to express and, with your knowledge and consent, do not render any opinion as to the applicability to the obligations of the Company under the Indenture and the Notes of Section 548 of the Bankruptcy Code or applicable state law (including, without limitation, Article 10 of the New York Debtor and Creditor Law) relating to fraudulent transfers and obligations. With your permission, for purposes of the opinions rendered in paragraph 16, we have assumed that the representations and agreements of (i) each of the Investors and the Company contained in the Purchase Agreement, (ii) Robertson contained in the engagement letter between the Company and Robertson, dated June 18, 2001 and the Robertson Warrant Acquisition Agreement, (iii) Weisel contained in the engagement letter between the Company and Weisel dated July 23, 2001, and (iv) Sutro contained in the engagement letter between the Company and Sutro dated July 31, 2001, are accurate and have been and will be complied with. To the extent that the obligations of the Company under the Operative Documents may be dependent upon such matters, we have assumed for purposes of this opinion that (i) each of the Investors, the Trustee and the Warrant Agent (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (b) has the requisite organizational and legal power and authority to perform its obligations under each of the Operative Documents to which it is a party; (c) is duly qualified to engage in the activities contemplated by each such Operative Document; and (d) has duly authorized, executed and delivered each such Operative Document; (ii) with respect to each of the Investors, the Trustee and the Warrant Agent, each Operative Document to which it is a party constitutes its legally valid and binding agreement, enforceable against it in accordance with its terms; (iii) the Trustee is in compliance, generally and with respect to acting as Trustee under the Indenture, with all applicable laws and regulations; and (iv) the Warrant Agent is in compliance, generally and with respect to acting as Warrant Agent under the Warrant Agreements, with all applicable laws and regulations. We express no opinion as to compliance by any parties to the Operative Documents with any state or federal laws or regulations applicable to the subject transaction because of the nature of their business. Our opinions set forth in paragraph 2 above are based upon our consideration of only those statutes, rules and regulations which, in our experience, are normally applicable to the issuance and sale of securities. 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. EXHIBIT D FORM OF ESCROW AGREEMENT EX-6 8 ex6.txt REGISTRATION RIGHTS AGREEMENT Exhibit 6 --------- REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of August 28, 2001 by and among TiVo Inc., a Delaware corporation (the "Company"), and the purchasers listed on Schedule A hereto (each a "Purchaser" and collectively, the "Purchasers"). The Company proposes to issue and sell to the Purchasers an aggregate of $51,750,000 principal amount of 7% Convertible Senior Notes due 2006 (the "Notes"), warrants (the "Investor Five-Year Warrants") to purchase an aggregate of 2,536,766 shares of the Company's common stock, par value $.001 per share (the "Common Stock") and 3,843,582 units (the "Investor Units"), consisting of warrants (the "Investor One-Year Warrants") to purchase an aggregate of 3,843,582 shares of Common Stock and warrants (the "Investor Five-Year Terminable Warrants," and together with the Investor Five-Year Warrants and the Investor One-Year Warrants, the "Investor Warrants") to purchase an aggregate of 1,268,384 shares of Common Stock. An additional 145,834 warrants (the "Robertson Five-Year Warrants" and, together with the Investor Five-Year Warrants, the "Five-Year Warrants") and 220,960 units (the "Robertson Units" and, together with the Investor Units, the "Units") consisting of 220,960 warrants (the "Robertson One-Year Warrants" and, together with the Investor One-Year Warrants, the "One-Year Warrants") and 72,917 warrants (the "Robertson Five-Year Terminable Warrants" and, together with the Investor Five-Year Terminable Warrants, the "Five-Year Terminable Warrants," and the Five-Year Terminable Warrants, together with the Five-Year Warrants and the One-Year Warrants, the "Warrants") were issued to Robertson Stephens, Inc. pursuant to a Warrant and Unit Acquisition Agreement, dated as of the date hereof (the "Robertson Warrant Acquisition Agreement"). For purposes hereof, references to the Purchasers shall include Robertson Stephens, Inc., where applicable. As an inducement to the Purchasers to enter into Note, Warrant and Unit Purchase Agreements, each dated as of August 23, 2001 (collectively, the "Purchase Agreement"), and in satisfaction of a condition to the Purchasers' obligations thereunder, the Company agrees with the Purchasers, for the benefit of the holders from time to time (including the Purchasers) of the Notes, the Warrants and the shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants (the "Shares"), as follows: SECTION 1 DEFINITIONS Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized defined terms shall have the following meanings: "Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. "Affiliate" of any specified person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified person. For purposes of this definition, control of a person means the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Amendment Effectiveness Deadline Date" has the meaning set forth in Section 3(d) hereof. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York are authorized or obligated by law or executive order to close or be closed. "Closing" has the meaning set forth in Section 3(a) hereof. "Commission" means the Securities and Exchange Commission. "Damages Payment Date" means each Interest Payment Date. For purposes of this Agreement, if no Notes are outstanding, "Damages Payment Date" shall mean each August 15 and February 15. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. "Five-Year Terminable Warrant Agreement" means the Warrant Agreement, dated as of August 28, 2001, by and between the Company and The Bank of New York, as Warrant Agent, relating to the Five-Year Terminable Warrants, as the same may be amended from time to time in accordance with the terms thereof. "Five-Year Warrant Agreement" means the Warrant Agreement, dated as of August 28, 2001, by and between the Company and The Bank of New York, as Warrant Agent, relating to the Five-Year Warrants, as the same may be amended from time to time in accordance with the terms thereof. "Holder" has the meaning set forth in Section 2 hereof. "Indenture" means the Indenture, dated as of August 28, 2001, between the Company and the Trustee, relating to the Notes, as the same may be amended from time to time in accordance with the terms thereof. "Initial Shelf Registration Statement" has the meaning set forth in Section 3(a) hereof "Interest Payment Date" has the meaning set forth in the Indenture. "Liquidated Damages" has the meaning set forth in Section 3(e) hereof. "Losses" has the meaning set forth in Section 7(d) hereof. "Majority Holders" means the Holders owning a majority of the total Registrable Securities. "Notice and Questionnaire" means a written notice delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire attached as Exhibit B to the Purchase Agreement and the Robertson Warrant Acquisition Agreement. "One-Year Warrant Agreement" means the Warrant Agreement, dated as of August 28, 2001, by and between the Company and The Bank of New York, as Warrant Agent, relating to the One-Year Warrants, as the same may be amended from time to time in accordance with the terms thereof. "Prospectus" means the prospectus included in any Shelf Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of Registrable Securities covered by such Shelf Registration Statement, and all amendments and supplements to the Prospectus, including post-effective amendments and including all information incorporated by reference into such Prospectus. "Registrable Securities" means each of: (a) the Notes, until the earlier of the following events: (i) the date on which such Note has been effectively registered under the Act and sold or transferred pursuant to the Shelf Registration Statement, (ii) the date on which such Note has been distributed to the public pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k) under the Act, or (iii) the date on which such Note ceases to be outstanding; (b) the Shares issued or issuable upon conversion of the Notes, until the earlier of the following events: (i) the date on which such Share has been effectively registered under the Act and sold or transferred pursuant to any Shelf Registration Statement, (ii) with respect to Shares issued upon conversion of Notes, if such Note was effectively registered under the Securities Act and sold or transferred pursuant to any Shelf Registration Statement, the date on which such note was so sold or transferred, (iii) the date on which such Share has been distributed to the public pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k) under the Act, (iv) with respect to Shares issued upon conversion of Notes, if such Note was distributed to the public pursuant to Rule 144 under the Act or was saleable pursuant to Rule 144(k) under the Act and if such conversion was in compliance with Section 3(a)(9) of the Act, the date on which such Note was converted, or (v) the date on which such Share ceases to be outstanding; (c) the Warrants, until the earlier of the following events: (i) the date on which such Warrant has been effectively registered under the Act and sold or transferred pursuant to the Shelf Registration Statement, (ii) the date on which such Warrant has been distributed to the public pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k) under the Act, or (iii) the date on which such Warrant ceases to be outstanding; and (d) the Shares issued or issuable upon exercise of the Warrants, until the earlier of the following events: (i) the date on which such Share has been effectively registered under the Act and sold or transferred pursuant to the Shelf Registration Statement, (ii) with respect to Shares issued upon the exercise of Warrants, if such Warrant was effectively registered under the Act and sold or transferred pursuant to the Shelf Registration Statement, the date on which such Warrant was so sold or transferred, (iii) the date on which such Share has been distributed to the public pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k) under the Act, (iv) with respect to Shares issued upon the "Cashless Exercise" of Warrants pursuant to Section 10(b) of the Five-Year Warrant Agreement or Section 10(b) of the Five-Year Terminable Warrant Agreement, as applicable, if such Warrant was distributed to the public pursuant to Rule 144 under the Act or was saleable pursuant to Rule 144(k) under the Act and if such Cashless Exercise was in compliance with Section 3(a)(9) of the Act, the date on which such Warrant was exercised, or (v) the date on which such Share ceases to be outstanding. "Registration Default" has the meaning set forth in Section 3(e) hereof. "Shelf Registration" means a registration effected pursuant to Section 3 hereof. "Shelf Registration Period" has the meaning set forth in Section 3(c) hereof. "Shelf Registration Statement" means one or more "shelf" registration statements of the Company pursuant to the provisions of Section 3 hereof that covers some or all of the Registrable Securities as applicable, on an appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments, and in each case, including the Prospectus contained therein, all exhibits thereto and all material incorporated therein by reference, including the Initial Shelf Registration Statement and the Supplemental Shelf Registration Statement. "Supplemental Delay Period" means any period commencing on the date of receipt by a Holder of any notice from the Company required by Section 4(b)(2) hereof and ending on the date of receipt by such Holder of an amended or supplemented Shelf Registration Statement or Prospectus, as contemplated by Section 4(h) or Section 4(i) hereof, or the receipt by such Holder of written notice from the Company (the "Advice") that the use of the Prospectus may be resumed. "Supplemental Shelf Registration Statement" has the meaning set forth in Section 3(b) hereof. "Trigger Date" has the meaning set forth in Section 3(b) hereof. "Trustee" means the trustee with respect to the Notes under the Indenture. "Underwriter" means any underwriter of Registrable Securities in connection with an offering thereof under a Shelf Registration Statement. "Warrant Agent" means the warrant agent with respect to the Warrants under the Five-Year Warrant Agreement, the One-Year Warrant Agreement or the Five-Year Terminable Warrant Agreement, as applicable. SECTION 2 HOLDERS A person is deemed to be a holder of Registrable Securities (each, a "Holder") whenever such person becomes the registered holder of Registrable Securities, and includes broker-dealers that hold Registrable Securities (i) as a result of market making activities and other trading activities and (ii) which were acquired directly from the Company or an Affiliate of the Company. SECTION 3 SHELF REGISTRATION (a) The Company shall use its best efforts to file with the Commission within 30 days of the date of the original sale of the Notes, the Units and the Warrants by the Company (the "Closing") a Shelf Registration Statement (the "Initial Shelf Registration Statement") relating to the resale of the Registrable Securities, including the resale of 20,380,606 shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants by the Holders from time to time, in accordance with the methods of distribution elected by such Holders and set forth in such Initial Shelf Registration Statement, and thereafter shall use its best efforts to cause such Initial Shelf Registration Statement to be declared effective under the Act as promptly as practicable. The Company shall include in such Initial Shelf Registration Statement the registration of the resale of the Units by the Holders from time to time. (b) In the event the conversion price of the notes is adjusted pursuant to Section 15.11(b) of the Indenture (the date of any such adjustment, a "Trigger Date"), the Company shall use its best efforts to file with the Commission, within 30 days after the Trigger Date, a Shelf Registration Statement (the "Supplemental Shelf Registration Statement"), which may be filed pursuant to Rule 462(b) under the Act, if available, relating to the resale of any additional Shares issuable as a result of such adjustment upon conversion of the Notes by Holders from time to time. If the Company files a Supplemental Shelf Registration Statement covering such additional Shares, the Company thereafter shall use its best efforts to cause such Supplemental Shelf Registration Statement to be declared effective under the Act as promptly as practicable. (c) Subject to Section 3(d), the Company shall use its best efforts to keep any Shelf Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by Holders for a period of two years from the latest date of original issuance of the Notes and the Warrants by the Company pursuant to the Purchase Agreement or such shorter period that will terminate upon the sale of all of the Registrable Securities pursuant to the Shelf Registration Statement (the "Shelf Registration Period"). Notwithstanding the foregoing, in the event that Rule 144(k) (or any successor thereto) is amended to extend the two-year period after which restricted securities issued to and continuously held by nonaffiliates of the Company are no longer subject to the volume and manner limitations contained in Rule 144, the Shelf Registration Period shall be extended for such additional period or such shorter period that will terminate upon the sale of all of the Registrable Securities pursuant to the Shelf Registration Statement. (d) Upon (i) the existence of any fact or the happening of any event that, in the opinion of the Company, makes untrue any statement of a material fact made in any Shelf Registration Statement, the Prospectus or any amendment or supplement thereto or any document incorporated by reference therein or requires the making of any changes in such Shelf Registration Statement or the Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) the existence of any development that, in the good faith discretion of the Company, makes it appropriate to suspend the availability of any Shelf Registration Statement and related Prospectus or which renders the Company unable to comply with Commission requirements; (iii) the issuance by the Commission of a stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of proceedings with respect to any Shelf Registration Statement; (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (v) the filing of an amendment to any Shelf Registration Statement required by Section 4(h) or Section 4(i) hereof, the Company shall be entitled to suspend the availability of such Shelf Registration Statement or any Prospectus for the Supplemental Delay Period, without incurring or accruing any obligation to pay Liquidated Damages except as described below. (e) If: (i) the Initial Shelf Registration Statement is not filed with the Commission within 30 days after the Closing; (ii) any Supplemental Shelf Registration Statement is not filed with the Commission within 30 days after the Trigger Date related to the filing of such Supplemental Shelf Registration Statement; (iii) the Initial Shelf Registration Statement has not been declared effective by the Commission within 90 days after the Closing, provided, however, that in the event the Commission informs the Company that it will review the Initial Shelf Registration Statement or any document included or incorporated therein by reference, or informs the Company that it will not declare the Initial Shelf Registration Statement effective during the pendency of its review of any confidential treatment request of the Company currently before it, such 90-day period shall be extended (and no Liquidated Damages shall accrue) for an additional 30 days; (iv) any Supplemental Shelf Registration Statement has not been declared effective by the Commission within 90 days after the Trigger Date related to the filing of such Supplemental Shelf Registration Statement, provided, however, that in the event the Commission informs the Company that it will review such Supplemental Shelf Registration Statement or any document included or incorporated therein by reference, or informs the Company that it will not declare such Supplemental Shelf Registration Statement effective during the pendency of its review of any confidential treatment request of the Company currently before it, such 90-day period shall be extended (and no Liquidated Damages shall accrue) for an additional 30 days after such Trigger Date; (v) (a) any Shelf Registration Statement is filed and declared effective but, during the Shelf Registration Period, it thereafter ceases to be effective or available or (b) if the Company suspends the use of the Prospectus forming a part thereof, for more than 30 days in any period of 365 consecutive days in reliance upon Section 3(d)(ii) or for more than 60 days in any period of 365 consecutive days for any reason; (vi) any amendment to any Shelf Registration Statement or supplement to the Prospectus forming a part thereof of the type described in Section 4(i) hereof is not filed with the Commission within the later of (x) ten Business Days after the date the Notice and Questionnaire is delivered to the Company or (y) ten Business Days after the expiration of any Supplemental Delay Period in effect when the Notice and Questionnaire is delivered or put into effect within ten Business Days of such delivery date; or (vii) any amendment to any Shelf Registration Statement required by Section 4(i) hereof is not declared effective within 45 Business Days of the filing of such amendment to the Shelf Registration Statement (the "Amendment Effectiveness Deadline Date"); provided, however that the Amendment Effectiveness Deadline Date shall be extended by up to ten Business Days from the expiration of a Supplemental Delay Period (and the Company shall incur no obligation to pay Liquidated Damages during such extension) if such Supplemental Delay Period shall be in effect on the Amendment Effectiveness Deadline Date; (each such event referred to in foregoing clauses (i) through (vii), a "Registration Default"), the Company hereby agrees to pay liquidated damages ("Liquidated Damages") with respect to any outstanding Registrable Securities from and including the day following the Registration Default to but excluding the day on which the Registration Default has been cured (the "Damages Accrual Period"); provided, however that in the case of a Damages Accrual Period that is in effect solely as a result of a Registration Default of the type described in clauses (vi) and (vii) above, such Liquidated Damages shall be paid only to the Holders that have delivered Notice and Questionnaires that caused the Company to incur the obligations set forth in Section 4(i) the nonperformance of which is the basis of such Registration Default; provided further that Liquidated Damages based on a Registration Default of the type described in clauses (vi) and (vii) above shall not accrue during any Supplemental Delay Period that commences subsequent to such Registration Default. Liquidated Damages on the Notes and Shares issued upon conversion of the Notes shall accrue as follows: (A) in respect of any outstanding Notes that continue to be Registrable Securities, to each Holder of such Notes at the rate of $10.00 per month per $1,000 principal amount of Notes held by such Holders; and (B) in respect of any outstanding Shares that continue to be Registrable Securities and that were issued upon conversion of Notes, to each Holder of such Shares at the rate of $10.00 per month per $1,000 principal amount of the Notes formerly held by such Holders that were converted into such Shares. If the Registration Default is not cured within 30 days, the Liquidated Damages with respect to the rates described in the preceding clauses (A) and (B) will increase by (i) $2.50 per month per $1,000 principal amount of Notes that continue to be Registrable Securities, and (ii) with respect to such outstanding Shares that continue to be Registrable Securities and that were issued upon conversion of Notes, $2.50 per month per $1,000 principal amount of Notes upon the conversion of which such Shares were issued, up to a maximum rate of (i) $20.00 per month per $1,000 principal amount of Notes that continue to be Registrable Securities, and (ii) with respect to such outstanding Shares that continue to be Registrable Securities and that were issued upon conversion of Notes, $20.00 per month per $1,000 principal amount of Notes upon the conversion of which such Shares were issued. Notwithstanding the foregoing, in the event that (i) the Company defaults for 30 days in the payment of any installment of Liquidated Damages described above when the same shall have become due and payable pursuant to Section 3(f) hereof and (ii) (a) within 60 days after such 30 day period described above there has not been a declaration pursuant to Section 7.1 of the Indenture that the principal of and premium, if any, on the Notes and the interest accrued thereon (including any Liquidated Damages to the extent accrued and unpaid) are due and payable immediately or (b) any such declaration described in the preceding clause (a) above has been waived, as provided in the Indenture, then the Company shall be liable to any holder who would otherwise have been entitled to such Liquidated Damages for any actual damages incurred by such holder. Liquidated Damages on the Warrants and the Shares issued upon exercise of the Warrants shall accrue as follows: (A) in respect of any unexercised Warrants that continue to be Registrable Securities, to each Holder of such Warrants at the rate of $.05 per week per $1,000 of aggregate exercise price payable upon exercise of such Warrants, as adjusted from time to time pursuant to the terms of the Warrant Agreement (such exercise price as adjusted, the "Exercise Price"); and, (B) in respect of any outstanding Shares that continue to be Registrable Securities and that were issued upon exercise of Warrants, to each Holder of such Shares at the rate of $.05 per week per $1,000 of aggregate Exercise Price paid upon exercise of such Warrants. If the Registration Default is not cured within 30 days, the Liquidated Damages with respect to the rates described in the preceding clauses (A) and (B) will increase by (i) $.05 per week per $1,000 of aggregate Exercise Price payable upon exercise of such outstanding Warrants that continue to be Registrable Securities, and (ii) with respect to such outstanding Shares that continue to be Registrable Securities and that were issued upon exercise of Warrants, $.05 per week per $1,000 of aggregate Exercise Price paid upon exercise of such Warrants, up to a maximum rate of (i) $.25 per week per $1,000 of aggregate Exercise Price payable upon exercise of such outstanding Warrants that continue to be Registrable Securities, and (ii) with respect to such outstanding Shares that continue to be Registrable Securities and that were issued upon exercise of Warrants, $.25 per week per $1,000 of aggregate Exercise Price paid upon exercise of such Warrants. Liquidated Damages will accrue on a pro rata basis for any portion of a month, with respect to the Notes and the Shares issuable upon conversion of the Notes, or any portion of a week, with respect to the Warrants and the Shares issuable upon exercise of the Warrants, during which a Registration Default exists. Notwithstanding anything contained in this Section 3(e) to the contrary, no Liquidated Damages will accrue on any Note, Warrant or Share on and after to the date such Note, Warrant or Share ceases to be a Registrable Security. (f) All accrued Liquidated Damages shall be paid by certified check or wire transfer of immediately available funds payable to the address or account provided to the Company in writing pursuant to the notice requirements of Section 9(b) hereof. With respect to the Notes and the Shares issued upon conversion of the Notes, all accrued Liquidated Damages shall be paid in arrears to Holders by the Company monthly on the 15th day of each month or, if such date is not a Business Day, the next Business Day occurring thereafter. With respect to the Warrants and the Shares issued upon exercise of the Warrants, all accrued Liquidated Damages shall be paid in arrears to Holders by the Company on each Damages Payment Date. Following the cure of all Registration Defaults relating to any particular Registrable Security, Note or Warrant, the accrual of Liquidated Damages with respect to such Registrable Security, Note or Warrant shall cease. SECTION 4 REGISTRATION PROCEDURES In connection with any Shelf Registration Statement, the following provisions shall apply: (a) The Company shall ensure that (i) any Shelf Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto complies in all material respects with the Act and the rules and regulations thereunder, (ii) any Shelf Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) except as permitted by Section 3, any Prospectus forming part of any Shelf Registration Statement, and any amendment or supplement to such Prospectus, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading. (b) (1) The Company shall advise the Holders named in any Shelf Registration Statement that have provided in writing to the Company a telephone or facsimile number and address for notices, and, if requested by any such Holder, confirm such advice in writing when a Shelf Registration Statement and any amendment thereto has been filed with the Commission and when the Shelf Registration Statement or any post-effective amendment thereto has become effective. (2) The Company shall advise the Holders named in any Shelf Registration Statement, which have provided in writing to the Company a telephone or facsimile number and address for notices, and, if requested by any such Holder, confirm such advice in writing: (i) of any request by the Commission for amendments or supplements to the Shelf Registration Statement or the Prospectus included therein or for additional information; (ii) of the initiation by the Commission of proceedings relating to a stop order suspending the effectiveness of the Shelf Registration Statement; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (v) of the existence of any fact and the happening of any event that, in the opinion of the Company, makes untrue any statement of a material fact made in its Shelf Registration Statement, the Prospectus or any amendment or supplement thereto or any document incorporated by reference therein or requires the making of any changes in the Shelf Registration Statement or the Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; and (vi) the filing of an amendment to the Shelf Registration Statement. (c) The Company shall use its best efforts to obtain the withdrawal of any order suspending the effectiveness of any Shelf Registration Statement at the earliest possible time. (d) The Company shall use its best efforts to furnish to each selling Holder named in any Shelf Registration Statement who so requests in writing and who has provided to the Company an address for notices, without charge, at least one conformed copy of such Shelf Registration Statement and any post-effective amendments thereto (excluding any exhibits thereto). (e) The Company shall, during the Shelf Registration Period, deliver to each Holder named in any Shelf Registration Statement and who has provided to the Company an address for notices, without charge, as many copies of the Prospectus (including each preliminary Prospectus) contained in such Shelf Registration Statement and any amendment or supplement thereto as such Holder may reasonably request; subject to any notice by the Company in accordance with Section 4(b)(2) hereof, the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders for the purposes of the offering and resale of the Registrable Securities covered by the Prospectus in accordance with the applicable regulations promulgated under the Act and any restrictions set forth in the Prospectus. (f) Prior to any offering of Registrable Securities pursuant to any Shelf Registration Statement, the Company shall register or qualify or cooperate with the Holders named therein and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions of the United States as any such Holders reasonably request in writing as promptly as practicable prior to the effectiveness of the Shelf Registration Statement; provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general or unlimited service of process or to taxation in any such jurisdiction where it is not then so subject. (g) The Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to any Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holders may request in writing. (h) Except to the extent otherwise permitted under Section 3, upon the occurrence of any event contemplated by paragraph 4(b)(2)(v) hereof, the Company shall promptly prepare a post-effective amendment to any Shelf Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that as thereafter delivered to purchasers of the Registrable Securities covered thereby, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (i) Each Purchaser shall deliver to the Company a Notice and Questionnaire at the Closing and shall provide the Company with any updated information prior to the effectiveness of the Initial Shelf Registration Statement. From and after the date the Initial Shelf Registration Statement is declared effective, the Company shall, as promptly as practicable after the date a Notice and Questionnaire is delivered to the Company by a Holder of Registrable Securities pursuant to Section 9(b) hereof, and in any event upon the later of (x) ten Business Days after such date or (y) ten Business Days after the expiration of any Supplemental Delay Period in effect when a Notice and Questionnaire is so delivered, file with the Commission any amendments to any Shelf Registration Statement or supplements to the related Prospectus as may be required by applicable law so that the Holder delivering such Notice and Questionnaire may use such Prospectus to sell such Holder's Registrable Securities, subject to Section 3(d) hereof; provided, however that if such Notice and Questionnaire is delivered during a Supplemental Delay Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall not be obligated to file any amendment to any Shelf Registration Statement or supplement to the related Prospectus until expiration of the Supplemental Delay Period. Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation to name any Holder that has not submitted a Notice and Questionnaire as a selling securityholder in any Shelf Registration Statement or related Prospectus. (j) With respect to any underwritten offering of Registrable Securities under the Shelf Registration Statement, the Company shall enter into such agreements (including underwriting agreements) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate such underwritten offering as may be reasonably requested by the Majority Holders, counsel to the Majority Holders or the managing Underwriters in connection therewith. In such connection, the Company shall, upon request by the Majority Holders, counsel to the Majority Holders or the managing Underwriters in connection with such Shelf Registration Statement, use its best efforts to cause (i) its counsel to deliver an opinion relating to the Shelf Registration Statement and the Registrable Securities in customary form, (ii) its officers to execute and deliver all customary documents and certificates reasonably requested by such Majority Holders, counsel to such Majority Holders or the managing Underwriters and (iii) its independent public accountants to provide a customary comfort letter or letters, in the customary form and covering matters of the type customarily covered in comfort letters to underwriters in connection with underwritten offerings. (k) The Company may register or offer securities of the Company other than the Registrable Securities under any Shelf Registration Statement. SECTION 5 HOLDERS' AGREEMENTS Each Holder severally but not jointly, by the acquisition of Notes, Warrants or Shares, agrees: (a) That upon receipt of a notice of the commencement of a Supplemental Delay Period, it will keep the fact of such notice confidential, forthwith discontinue disposition of its Registrable Securities pursuant to any Shelf Registration Statement, and will not deliver any Prospectus forming a part thereof until receipt of an amended or supplemented Shelf Registration Statement or Prospectus, as applicable, as contemplated by Section 4(h) hereof, or until receipt of the Advice. (b) If so directed by the Company in a notice of the commencement of a Supplemental Delay Period, each Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of any Prospectus covering the Registrable Securities. (c) Sales of such Registrable Securities pursuant to any Shelf Registration Statement shall only be made in the manner set forth in such currently effective Shelf Registration Statement and in accordance with applicable law. (d) Upon the sale of Registrable Securities pursuant to any Shelf Registration Statement, each Holder will deliver to the Trustee, the Warrant Agent, or Company's transfer agent, as applicable, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Registrable Securities may be properly transferred. (e) Prior to and as a condition to the exercise of Warrants, such Holder shall, unless the Company otherwise agrees in writing and so notifies the Warrant Agent, deliver to the Company a letter substantially in the form attached to the Warrant Agreement as Exhibit B and an opinion of counsel if the Company so requests and such certificates and other information as the Company and/or the Warrant Agent may require to confirm that any such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act. SECTION 6 REGISTRATION EXPENSES The Company shall bear all expenses incurred in connection with the performance of its obligations under Sections 3 and 4 hereof. Notwithstanding the foregoing or anything in this Agreement to the contrary, each Holder shall pay all underwriting discounts and commissions of any Underwriters with respect to any Registrable Securities sold by it. SECTION 7 INDEMNIFICATION AND CONTRIBUTION (a) In connection with any Shelf Registration Statement and to the extent permitted by law, the Company agrees to indemnify and hold harmless each Holder covered thereby, the directors, officers, employees, partners, representatives and agents of each such Holder and each person who controls any such Holder within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act (each such person being sometimes hereinafter referred to as an "indemnified party") against any and all losses, claims, damages, judgments or liabilities, joint or several, to which they or any of them may become subject, insofar as such losses, claims, damages, judgements or liabilities (or actions in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement as originally filed or in any amendment thereof, or in any Prospectus, or in any amendment thereof or supplement thereto, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, judgment, liability or action; provided, however, that (i) the Company will not be liable in any case to the extent that any such loss, claim, damage, judgement or liability arises out of, or is based upon, any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of any such Holder for inclusion therein and (ii) the Company will not be liable to any indemnified party under this indemnity agreement with respect to any Shelf Registration Statement or Prospectus to the extent that any such loss, claim, damage, judgement or liability of such indemnified party results solely from an untrue statement of a material fact contained in, or the omission of a material fact from, the Shelf Registration Statement or Prospectus, which untrue statement or omission was corrected in an amended or supplemented Shelf Registration Statement or Prospectus, if the person alleging such loss, claim, damage or liability was not sent or given, at or prior to the written confirmation of such sale, a copy of the amended or supplemented Shelf Registration Statement or Prospectus if the Company had previously furnished copies thereof to such indemnified party and if delivery of a prospectus is required by the Act and was not so made. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Holder covered by any Shelf Registration Statement severally agrees to indemnify and hold harmless the Company, each of the Company's directors, officers, employees, partners, representatives and agents, and each person who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to each such Holder, but only with reference to information relating to such Holder furnished to the Company in writing by or on behalf of such Holder for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any such Holder may otherwise have. In no event shall any Holder, its directors, officers or any person who controls such Holder be liable or responsible for any amount in excess of the amount by which the total amount received by such Holder with respect to its sale of Registrable Securities pursuant to any Shelf Registration Statement exceeds (i) the amount paid by such Holder for such Registrable Securities and (ii) the amount of any damages that such Holder, its directors, officers or any person who controls such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, the indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to assume the defense of any such claim and to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party, and the indemnified party reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, (iii) the indemnifying party did not employ counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party authorized the indemnified party to employ separate counsel at the expense of the indemnifying party. The indemnifying party shall indemnify and hold harmless the indemnified party from and against all losses, claims, damages and liabilities by reason of any settlement of any action (i) effected with its written consent or (ii) effected without its written consent if the settlement is entered into more than twenty Business Days after the indemnifying party shall have received a request from the indemnified party for reimbursement for the fees and expenses of counsel (in any case where such fees and expenses are at the expense of the indemnifying party) and, prior to the date of such settlement, the indemnifying party shall have failed to comply with such reimbursement request. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, an indemnifying party shall not be liable for any settlement of the nature contemplated by the immediately preceding sentence effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent that it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case, prior to the date of settlement. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding for which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action), unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of the indemnified party. (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall to the extent permitted by law have a joint and several obligation to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively "Losses") to which such indemnified party may be subject in such proportion as is appropriate to reflect the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Relative fault shall be determined by reference to whether any alleged untrue statement or omission relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand. The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls a Holder within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Shelf Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). Notwithstanding the foregoing, the obligations of each Holder hereunder are several and not joint. (e) The provisions of this Section 7 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive the sale by a Holder of Registrable Securities. SECTION 8 RULE 144A and RULE 144 The Company agrees with each Holder, for so long as any Registrable Securities remain outstanding and during any period in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make available, (A) with respect to each Holder of Five-Year Warrants, upon request of any such Holder, to such Holder or beneficial owner of Registrable Securities in connection with any sale thereof and any prospective purchaser of such Registrable Securities designated by such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act in order to permit resales of such Registrable Securities pursuant to Rule 144A and (B) with respect to each Holder of Notes, One-Year Warrants or Five-Year Terminable Warrants, upon request of any such Holder, to such Holder or beneficial owner of Registrable Securities in connection with any sale thereof and any prospective purchaser of such Registrable Securities designated by such Holder or beneficial owner, the same information as provided to a Holder of Five-Year Warrants pursuant to the preceding clause (A), and (ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby in a timely manner in order to permit resales of such Registrable Securities pursuant to Rule 144. SECTION 9 MISCELLANEOUS (a) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of the Majority Holders. Notwithstanding the foregoing (except the foregoing proviso), a waiver or consent to depart from the provisions hereof, with respect to a matter which relates exclusively to the rights of Holders whose securities are being sold pursuant to a Shelf Registration Statement and does not directly or indirectly adversely affect the rights of other Holders, may be given by the majority of such Holders, determined on the basis of the amount of Registrable Securities being sold rather than registered under such Shelf Registration Statement. (b) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder, at the most current address given by such Holder to the Company in accordance with the provisions of this Section 9(b), which address initially is, with respect to each Holder, the address of such Holder set forth in the Purchase Agreement; (ii) if to the Company, initially at its address set forth in the Purchase Agreement; (iii) with a copy in like manner to Latham & Watkins, initially at its address set forth in the Purchase Agreement. All such notices and communications shall be deemed to have been duly given when received. The Company, by notice to the Holders, may designate additional or different addresses for subsequent notices or communications. (c) Successors and Assigns. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of each of the parties hereto, including, without the need for an express assignment or any consent by the Company thereto, subsequent Holders of Registrable Securities. The Company hereby agrees to extend the benefits of this Agreement to any Holder of Registrable Securities and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto. (d) Counterparts. This agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. (e) Headings. The headings in this agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (f) Governing Law. This Agreement shall be deemed to be a contract made under the laws of New York, and for all purposes shall be governed by and construed in accordance with the laws of New York, including, without limitation, Section 5-1401 of the New York General Obligations Law. (g) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law. (h) Securities Held by the Company, etc. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or its Affiliates (other than subsequent Holders of Registrable Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or Registrable Securities. (i) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted with respect to the Registrable Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. [SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. TIVO INC. By: /s/ David H. Courtney Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer NATIONAL BROADCASTING COMPANY, INC. ----------------------------------- (Name of Purchaser) By:/s/ David Zaslav Name: David Zaslav Title: Executive Vice President SCHEDULE A PURCHASERS Alan C. Mendelson RGC International Investors, LDC Capital Ventures International JMG Triton Offshore Fund, Ltd. JMG Capital Partners, LP Gryphon Master Fund, L.P. Langley Partners, L.P. Woodmont Investments Ltd. Newberg Family Trust UTD 12-18-90 R2 CAPS, Ltd. Castle Creek Technology Partners LLC Cohanzick Partners, L.P. Shepherd Trading Ltd. Reliant Trading Sagamore Hill Hub Fund LTD Macke Asset Management National Broadcasting Company, Inc. British Sky Broadcasting Group PLC Discovery Communications, Inc. Robertson Stephens, Inc. EXHIBIT A CERTIFICATE OF SUBSEQUENT SALE [Transfer Agent] RE: Sale of Convertible Senior Notes due 2006, Warrants or Shares of Common Stock of TiVo Inc. (the "Company") pursuant to the Company's Prospectus dated _______________, 200__ (the "Prospectus") Dear Sir/Madam: The undersigned hereby certifies, in connection with the sale of Convertible Senior Notes due 2006 (the "Notes"), shares of common stock, par value $.001 per share (the "Common Stock") or warrants to purchase Common Stock (the "Warrants" and together with the Notes and the Common Stock, the "Securities") of the Company included in the table of Selling Holders in the Prospectus, that the undersigned has sold the Securities pursuant to the Prospectus and in a manner described under the caption "Plan of Distribution" in the Prospectus and that such sale complies with all applicable securities laws, including, without limitation, the Prospectus delivery requirements of the Securities Act of 1933, as amended. Selling Holder (the beneficial owner): Record Holder (e.g., if held in name of nominee): --------------------------- Restricted Stock Certificate No.(s): ---------------------------------------- Type of Security Sold: ------------------------------------------------------ Number of Such Securities Sold: --------------------------------------------- Date of Sale: --------------------------------------------------------------- In the event that you receive a note, warrant or stock certificate(s) representing more Notes, Warrants or shares of Common Stock than have been sold by the undersigned, then you should return to the undersigned a newly issued certificate for such excess Notes, Warrants or shares of Common Stock in the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Very truly yours, Dated: By: ------------------------ ------------------------------------ Print Name: ---------------------------- Title: --------------------------------- cc: Latham & Watkins 505 Montgomery Street San Francisco, CA 94111 Attention: Laura L. Gabriel, Esq. EX-7 9 s82801.txt EX-7 - LETTER AGREEMENT Exhibit 7 August 28, 2001 Via Facsimile (201) 585-6466 Mr. David Zaslav NBC 30 Rockefeller Plaza New York, NY 10112 Re: TiVo Private Placement Dear Mr. Zaslav: Per our conversation, in accordance with the terms and conditions of the agreement regarding notes and warrants convertible into TiVo common stock offered by TiVo to NBC in connection with TiVo's private placement offering, during the first forty five (45) after any conversion or warrant exercise, NBC is not allowed to sell or transfer the TiVo common stock. Please feel free to contact me with any questions concerning this matter. Sincerely, /s/ Matthew P. Zinn Matthew P. Zinn Vice President & General Counsel AGREED AND ACKNOWLEDGED NATIONAL BROADCASTING COMPANY, INC. By: /s/ David Zaslav ------------------------------ Title: David Zaslav, Executive Vice President ------------------------------------------ Date: August 28, 2001 EX-8 10 s828ex8.txt Exhibit 8 August 28, 2001 TiVo Inc. 2160 Gold Street P.O. Box 2160 Alviso, California 95002 Purchase of NBC Advertising Inventory Gentlemen: This letter sets forth the agreement (the "Letter Agreement") between the National Broadcasting Company, Inc. ("NBC"), and TiVo Inc. ("Advertiser") with respect to NBC's agreement to provide Advertiser with certain advertising inventory on the NBC Television Network and NBC's owned and operated television stations (collectively, "NBC TV") and the CNBC Cable Network ("CNBC"), in each case to promote Advertiser, subject to the following terms and conditions: 1. Spots. (a) NBC shall provide Advertiser with advertising spots (the "Spots") to be telecast on NBC TV and CNBC on the Dates, Days and Times mutually agreed by NBC and Advertiser and consistent with the parameters set forth in Schedule 2 hereto; provided, however, that in the event that no such agreement is reached with regard to the number or value of Spots to be broadcast in any calendar quarter or year, NBC may propose and implement a reasonable schedule for the broadcast of Spots in accordance with the parameters and objectives set forth in Exhibit B for the Total Spot Value set forth in Section 2 below. An initial schedule for the remainder of the 2001 calendar year shall be determined as soon as practicable following the date hereof. All such Spots run by Advertiser shall be subject to NBC TV's and CNBC's standard terms and conditions for such advertising, which, in the case of NBC TV, are described in the "Participating Sponsorship Agreement" attached hereto as Exhibit A (the "NBC TV Standard Terms") and, in the case of CNBC, are described in the "Standard Terms and Conditions" attached hereto as Exhibit B (the "CNBC Standard Terms" and together with the NBC TV Standard Terms, the "Standard Terms"). The Standard Terms are made a part of this Letter Agreement in their entirety; provided, however, that in the case of a conflict between the terms of this Letter Agreement and the terms of the Standard Terms, the terms of this Letter Agreement shall govern. For purposes of the Standard Terms, Advertiser shall be both the "Advertiser" and the "Agency" as such terms are used therein. (b) The Spots shall promote Advertiser, its products and services and may not advertise, promote or mention any other product, service, television program, web site or third party whatsoever without the prior written consent of NBC. The telecast of all Spots is subject to the current standards, practices and business procedures of NBC and CNBC. NBC or CNBC, as the case may be, in its sole discretion, reserves the right to limit or withdraw the telecast of any Spots which it, at any time and in its sole discretion, deems unsuitable or in violation of its standards, practices and procedures, or if the subject matter and/or presentation is considered by NBC or CNBC, as the case may be, to be offensive, defamatory or otherwise inappropriate or inconsistent with its advertising philosophy or format. In addition, with respect to the placement or telecast of Advertiser's Spots in any particular program, NBC or CNBC, as the case may be, may reject such placement or telecast if such placement or telecast would compete with or violate the rights of any other advertiser, sponsor or supplier of such program or program category, as determined by NBC or CNBC in its sole discretion and in good faith, provided that (i) NBC or CNBC, as the case may be, shall notify the Company as promptly as reasonably practicable in the event that any such placement or telecast shall be rejected and (ii) no placement or telecast shall be rejected on account of a placement by another advertiser if Advertiser's Spot has been purchased first in time; it being further understood that NBC's aggregate commitments set forth in Section 2 below shall not be affected by any such rejection. To the extent any of Advertiser's Spots are displaced for any of the foregoing reasons, NBC or CNBC, as the case may be, when determining the placement of replacement Spots for Advertiser, shall provide Advertiser with the most favorable treatment with respect to such displacement afforded to other advertisers whose Spots are similarly displaced; provided, however that neither NBC nor CNBC will be obligated to provide Advertiser with any more favorable rates than those set forth in Section 2 below. (c) On or before each date set forth on Schedule 1 (a "Proposal Date"), Advertiser shall deliver to Victoria Rubin of NBC a written proposal that includes target audiences, advertising flight dates and designated station markets for the Spots to be telecast during the respective Telecast Period (an "Advertiser Proposal"). Within five business days after receiving an Advertiser Proposal, NBC shall develop a proposed advertising telecast schedule for the respective Telecast Period based on such information and the parameters and objectives set forth in Schedule 2 (the "Proposed Schedule") and deliver the Proposed Schedule to Advertiser. Within three business days after the Proposed Schedule is delivered to Advertiser (the "Response Date"), Advertiser shall deliver a written response to the Proposed Schedule to Victoria Rubin of NBC requesting changes in the Proposed Schedule (the "Response"). The Response shall set forth with specificity Advertiser's requested changes in the Proposed Schedule, including requested dates and times for the Spots. Advertiser and NBC shall use commercially reasonable efforts for a period of five business days following the delivery to NBC of the Response to mutually agree upon any requested changes in the Proposed Schedule. In the event that either (i) Advertiser and NBC are unable to mutually agree on changes in the Proposed Schedule within such subsequent five-business-day period, or (ii) Advertiser shall fail to deliver a Response on or before the respective Response Date, Advertiser shall be deemed to have accepted the Proposed Schedule and NBC shall have the right to implement the Proposed Schedule for such Telecast Period. In the event that Advertiser shall fail to deliver any Advertiser Proposal on or before the respective Proposal Date, NBC shall have the right to implement a schedule for the broadcast of Spots within such Telecast Period based on the parameters and objectives set forth in Schedule 2, and such schedule shall be deemed accepted by Advertiser. (d) Advertiser shall deliver new commercial material to NBC on or before the date two weeks prior to the beginning of each Telecast Period. If Advertiser fails to deliver new commercial material by such date, or such commercial material is rejected in accordance with the terms of this Letter Agreement and Advertiser fails to deliver substituted or revised commercial material within seven days after being notified in writing of the rejection thereof by NBC, NBC shall (i) telecast previously delivered commercial material of Advertiser that meets NBC's current standards and practices or (ii) if such previously delivered commercial material is not available, be deemed to have telecast all of Advertiser's Spots for such Telecast Period for purposes of this Letter Agreement even if such Spots are not actually telecast. (e) To the extent that any Spots shall be deemed to have been telecast by NBC, NBC shall have no liability for any failure to broadcast such Spots and Advertiser shall have no right to either (i) require NBC to pay Advertiser any cash amount whatsoever or (ii) require NBC to telecast any additional Spots in replacement thereof. 2. Value of Spots. NBC shall telecast Spots with a total net spot value of (i) Five Million Dollars (US $5,000,000) (the "2001 Spot Value") during the period beginning on October 1, 2001 and ending on December 31, 2001 (the "2001 Advertising Period"); (ii) Five Million Two Hundred Seventy Thousand Dollars $5,270,000 (the "2002 Spot Value") during the period beginning on January 1, 2002 and ending on March 31, 2002 (the "2002 Advertising Period" and, together with the 2001 Advertising Period, the "Advertising Period") commencing on the first telecast of an Advertiser Spot (the "Effective Date"). For purposes of this Agreement, (i) the value of each NBC TV Spot shall be calculated at 85% of the scatter market rate in effect at the time such Spot is ordered and (ii) the value of each CNBC Spot shall be calculated at 85% of the gross market rate charged by CNBC at the time the Spot is ordered. In addition, upon the prior written consent of NBC, Advertiser reserves the right to use any portion of the Total Spot Value to cover program sponsorships that Advertiser may wish to purchase during the 2001 Advertising Period and the 2002 Advertising Period on terms to be negotiated in good faith (including the incorporation of appropriate discounts afforded in this Agreement) with NBC TV or CNBC, as the case may be. NBC shall use commercially reasonable efforts to help Advertiser identify sponsorship opportunities; provided, however, that neither NBC TV nor CNBC shall have any obligation whatsoever to agree to the terms of any sponsorships with Advertiser. 3. Payment for the Spots. Subject to the terms and conditions of this Letter Agreement and as consideration for NBC TV and CNBC's telecast of the Spots pursuant hereto and for certain rights granted to NBC by Advertiser pursuant to the August 8, 2001 Amendment to the operational agreement between the parties hereto dated April 16, 1999 (the "Operational Agreement"): (a) Upon execution of this Letter Agreement, and after receipt of a cash payment in the amount of Five Million Dollars (US $5,000,000) and pursuant to the terms and conditions of the agreement regarding notes and warrants (the "Notes and Warrants Purchase Agreement") offered by Advertiser to investors in Advertiser's proposed Seventy Five Million Dollar (US $75,000,000) private placement offering (the "Private Placement"), Advertiser shall issue NBC notes and warrants in the principal amount of Ten Million Dollars (US $10,000,000) (the "Notes and Warrants") pursuant to the Notes and Warrants Purchase Agreement which the Advertiser will negotiate in good faith with the financial investors in Advertiser's current proposed ) private placement. The terms and conditions of the Notes and Warrants Purchase Agreement executed by NBC, including any representations, warranties and covenants, shall be substantially similar to those contained in the Notes and Warrants Purchase Agreement given to the other investors in the Private Placement. Notwithstanding anything to the contrary in this Letter Agreement, in the event that Advertiser does not issue Notes and Warrants to investors pursuant to the terms and conditions of the Notes and Warrants Purchase Agreement, this Letter Agreement shall terminate without any liability whatsoever upon the return of the aforementioned cash payment to NBC; provided that Advertiser shall pay NBC in cash the total net spot value of any Spots telecast prior to such termination. (b) This Five Million Dollar (US $5,000,000) cash payment and the Five Million Two Hundred Seventy Thousand Dollars (US $5,270,000) of advertising inventory to be provided by NBC to Advertiser during the 2002 Advertising Period shall be Advertiser's full consideration for the issuance of the Notes to NBC. (c) Pursuant to the Operational Agreement, Advertiser shall provide certain services to NBC as described therein having a value of Two Hundred Seventy Thousand Dollars (US $270,000). In exchange for such services, NBC shall provide Advertiser with Spots pursuant to this Letter Agreement having a total net spot value of Two Hundred Seventy Thousand Dollars (US $270,000). (c) On or before October 1, 2001, Advertiser shall pay NBC the sum of Five Million Dollars (US $5,000,000) for the advertising inventory to be provided by NBC to Advertiser during the 2001 Advertising Period. (d ) NBC shall provide Advertiser with a written report within 10 business days after the end of each calendar month after the Effective Date during which Advertiser's Spots have been telecast and setting forth the aggregate value of Advertiser's Spots telecast by NBC TV and/or CNBC in the preceding month and any charges incurred by Advertiser pursuant to Section 4 of the NBC TV Standard Terms. 4. Representations and Warranties. NBC and Advertiser each represent and warrant that this Letter Agreement has been duly authorized, executed and delivered by such party and that this Letter Agreement constitutes the legal, valid and binding obligations of such party, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally or by general principles of equity. 5. Termination. (a) Notwithstanding any other remedy available to NBC, in the event that: (i) NBC notifies Advertiser in writing (with specificity) that Advertiser has materially breached this Letter Agreement and Advertiser has not cured such alleged breach within thirty (30) days of its receipt of such notice (or if such breach is not capable of being totally cured through Advertiser's diligent effort within the initial thirty (30) day period and Advertiser proceeds to cure and does in fact cure such breach within sixty (60) days of the initial notice); (ii) Advertiser admits in writing its inability to pay its debts generally; makes a general assignment for the benefit of creditors; has any proceeding instituted by or against it seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of Advertiser or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or similar official for it or any substantial part of its property; provided, in the case where such proceeding is involuntarily instituted against Advertiser, such proceeding remains undismissed after thirty (30) days; or (iii) The Operational Agreement is terminated for any reason in accordance with the terms thereof, then, in any such case, NBC shall have the right, but not the obligation, to terminate this Letter Agreement, without any further obligation hereunder. Notwithstanding the foregoing, the terms contained in Sections 6, 7, 8, 9 and 10 shall survive the termination hereof. (b) Notwithstanding any other remedy available to Advertiser, in the event that: (i) Advertiser notifies NBC in writing (with specificity) that NBC has materially breached this Letter Agreement and NBC has not cured such alleged breach within thirty (30) days of its receipt of such notice (or if such breach is not capable of being totally cured through NBC's diligent effort within the initial thirty (30) day period and NBC proceeds to cure and does in fact cure such breach within sixty (60) days of the initial notice); or (ii) NBC admits in writing its inability to pay its debts generally; makes a general assignment for the benefit of creditors; has any proceeding instituted by or against it seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of NBC or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or similar official for it or any substantial part of its property; provided, in the case where such proceeding is involuntarily instituted against NBC, such proceeding remains undismissed after thirty (30) days, then, in any such case, Advertiser shall have the right, but not the obligation, to terminate this Letter Agreement, without prejudice to Advertiser's legal remedies or the rights of the parties hereunder. Notwithstanding the foregoing, the terms contained in Sections 6, 7, 8, 9 and 10 shall survive the termination hereof. (c) Notwithstanding clauses (a)(i) and (b)(i) above, in the event that a party believes in good faith that it has not breached this Agreement, it shall so inform the other party within ten (10) days of notice of the alleged breach, and the time periods set forth in clause (a)(i) or (b)(i), as the case may be, shall be tolled for sixty (60) days or such longer period as the parties may reasonably agree (the "Tolling Period") in order to allow senior management representatives from each party to meet to resolve the disagreement. Promptly after commencement of the Tolling Period, the non-breaching party shall provide the breaching party with a reasonable proposal in reasonable detail for curing the alleged breach, and a termination right shall only occur if the breaching party fails to comply with the terms of such proposal. The time periods set forth in clause (a)(i) or (b)(i), as the case may be, shall resume if no resolution is reached during the Tolling Period. 6. Miscellaneous. This Letter Agreement and the exhibits and schedules hereto and thereto constitute the entire agreement and understanding of the parties relating to the subject matter hereof and supersede all prior and contemporaneous agreements, negotiations and understandings between the parties, both oral and written relating thereto. No waiver or modification of any provision of this Letter Agreement shall be effective unless in writing and signed by both parties. The terms of this Letter Agreement shall apply to parties hereto and any of their successors or assigns; provided, however, that this Letter Agreement may not be transferred or assigned by Advertiser, including, without limitation, the right to receive Spots to be telecast by NBC TV and/or CNBC, without the prior written consent of NBC, except in connection with the sale of all or substantially all of Advertiser's assets. This Letter Agreement may be executed in counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. 7. Governing Law. This Letter Agreement shall be governed by and construed under the laws of the State of New York applicable to contracts fully performed in New York. 8. Liability for Failure to Broadcast Spots. Subject to NBC's review of Advertiser's buy, certain portions of such buy will be guaranteed on the A25-49 demographic. In the event that any of the agreed upon advertising impressions are not delivered during the applicable Advertising Period ("Shortfall"), such Shortfall shall not be considered a breach of this Agreement by NBC; instead, NBC will provide Advertiser with "makegood" advertisements in accordance with NBC's standard makegood practice which have a total value, based on the current market value, equal to the value of the Shortfall. If, after issuance of the Notes and Warrants pursuant to Section 3 of this Letter Agreement , there shall occur (i) any termination of this Letter Agreement in accordance with the terms hereof, (ii) the bankruptcy, liquidation, insolvency or reorganization of Advertiser or (iii) a Change of Control of Advertiser without the prior written consent of NBC with respect to this Letter Agreement, all Spots (whether or not actually telecast) shall be deemed to have been telecast by NBC. NBC shall have no liability for any failure to broadcast such Spots and Advertiser shall have no right to either (a) require NBC to pay Advertiser any cash amount whatsoever or (b) require NBC to telecast any additional Spots. "Change of Control" shall mean (A) any consolidation, reorganization or merger of Advertiser with any third party, other than a transaction resulting in the holders of the capital stock of Advertiser (prior to such consolidation, reorganization or merger) having Control over the surviving or resulting entity, (B) any third party (other than NBC) having Control over Advertiser or (C) any sale, transfer or other disposition by Advertiser of all or substantially all of its assets to any third party (other than NBC). "Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Advertiser, whether through ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise. 9. Limitation of Liability. In no event shall either party's liability hereunder include any special, indirect, incidental or consequential Losses or damages, even if such party shall have been advised of the possibility of such potential Losses or damages, except in the case of willful misconduct or fraud or in the event such damages are awarded by a court of competent jurisdiction in a third party claim. "Losses" shall mean any damages, liabilities, claims, judgments and expense, including reasonable attorneys' fees. 10. Confidentiality. Neither party shall issue a press release or make any statement to the general public concerning this Letter Agreement, the Spots or the existence thereof, without the express prior written consent of the other; provided, however, that Advertiser's statements as to the existence of a business relationship with NBC in connection with the Private Placement will not be considered to violate the confidentiality of this Letter Agreement. In addition, either party shall be entitled to disclose the terms of this Letter Agreement in order to comply with applicable legal and regulatory requirements. Advertiser agrees to keep all information provided to it by NBC regarding this Letter Agreement, the Spots, or any other information relating thereto, highly confidential, and shall not disclose any portion of such information without the prior written consent of NBC. If you are in agreement with the above terms and conditions, please indicate your acceptance by signing in the space provided below, and return one original to me. Very truly yours, NATIONAL BROADCASTING COMPANY, INC. By: /s/ Carla Sinatra ----------------------- Name: Carla Sinatra Title: Vice President, Business Development ACCEPTED AND AGREED: TIVO INC. By: /s/Matthew Zinn ------------------------- Name: Matthew Zinn Title: Vice President and General Counsel [SIGNATURE PAGE TO TIVO INC. ADVERTISING LETTER AGREEMENT] Schedule 1 Proposal Dates Telecast Period Proposal Date 2001 Advertising Period August 20, 2001 2002 Advertising Period November 20, 2001 Schedule 2 Advertiser Objectives and Parameters on Inventory Objectives: A. The parties agrees to negotiate in good faith to create a media schedule that will achieve the following Advertiser marketing objectives: 1. Acquire new TiVo subscribers 2. Educate consumers on the TiVo service 3. Drive traffic to www.tivo.com 4. Build TiVo brand awareness and identity B. The parties agree to negotiate in good faith to put together a media schedule that will deliver the following metrics: 1. NBC will make reasonable commercial efforts to include the following in the daypart mix: a. A minimum of 50-60% National Primetime b. A minimum of 20-25% National Late Night 2. Subject to NBC's review of Advertiser's buy, certain portions of such buy may be guaranteed on the AD25-49 demographic. 3. NBC will make reasonable commercial efforts to air the agreed upon inventory within Advertiser's requested flight dates. 4. Guaranteed CPM only as negotiated and agreed to between NBC and Advertiser's agency and as determined by marketplace conditions. 5. Subject to inventory availability, NBC and Advertiser may begin discussions on October 1, 2001 for 2002 Olympics advertising spots during the 2002 Advertising Period. EX-9 11 s304468.txt WARRANT AGREEMENT Exhibit 9 [One-Year Warrant Agreement] TiVo Inc. and The Bank of New York as Warrant Agent WARRANT AGREEMENT DATED as of August 28, 2001
TABLE OF CONTENTS Page Number SECTION 1. Definitions................................................................................1 SECTION 2. Appointment of Warrant Agent...............................................................3 SECTION 3. Form of Warrant Certificates...............................................................3 SECTION 4. Execution of Warrant Certificates..........................................................4 SECTION 5. Registration, Countersignature and Issuance of Temporary Warrant Certificates..............4 SECTION 6. Registration of Transfers and Exchanges....................................................6 SECTION 7. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates........................13 SECTION 8. Offices for Exercise, Etc.................................................................13 SECTION 9. Duration of Warrants; Early Termination of Warrants.......................................14 SECTION 10. Exercise, Exercise Price, Settlement and Delivery; Separation of Warrants.................15 SECTION 11. Cancellation of Warrant Certificates......................................................17 SECTION 12. Adjustment of Exercise Price and Number of Shares Issuable................................17 SECTION 13. Effect of Reclassification, Consolidation, Merger or Sale.................................26 SECTION 14. Taxes on Shares Issued....................................................................27 SECTION 15. Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock...................27 SECTION 16. Fractional Warrants and Fractional Shares.................................................28 SECTION 17. Notice to Warrantholders Prior to Certain Actions.........................................28 SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent..................................29 SECTION 19. Warrant Agent.............................................................................30 SECTION 20. Disposition of Proceeds of Exercise of Warrants...........................................31 SECTION 21. Change of Warrant Agent...................................................................31 SECTION 22. Notices to Company and Warrant Agent......................................................32 SECTION 23. Supplements and Amendments................................................................32 SECTION 24. Successors................................................................................33 SECTION 25. Termination...............................................................................33 SECTION 26. Governing Law.............................................................................33 SECTION 27. Benefits of This Agreement................................................................33 SECTION 28. Counterparts..............................................................................34 Exhibit A Form of Warrant................................................................................A-1 Exhibit B Form of Transfer Letter of Representations.....................................................B-1
WARRANT AGREEMENT ("Agreement") dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (together with any successor thereto, the "Company"), and The Bank of New York, a New York banking corporation, not in its individual capacity but solely as warrant agent (together with any successor warrant agent, the "Warrant Agent"). WHEREAS, the Company has entered into purchase or acquisition agreements with certain purchasers or acquirors (the "Purchasers"), in which the Company has agreed to issue and/or sell to the Purchasers (i) an aggregate principal amount of $51,750,000 of its 7% Convertible Senior Notes due 2006 (the "Notes") to be issued under an Indenture dated as of August 28, 2001 between the Company and The Bank of New York, a New York banking corporation, as trustee (in such capacity, the "Trustee"), (ii) warrants to purchase 2,682,600 shares of the Company's common stock, par value $.001 per share (the "Common Stock"), (iii) and 4,064,542 units (each a "Unit," and collectively, the "Units"), each consisting of (a) one warrant (a "Warrant," and collectively the "Warrants", and the certificates evidencing the Warrants hereinafter referred to as the "Warrant Certificates") to purchase one share of Common Stock and (b) one warrant (a "Five-Year Terminable Warrant") to purchase 0.33 of one share of Common Stock. WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company to assist the Company in connection with the issuance, exchange, cancellation, replacement and exercise of the Warrants, and this Agreement sets forth, among other things, the terms and conditions on which the Warrants may be issued, exchanged, cancelled, replaced and exercised; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1. Definitions. The terms defined in this Section 1 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective meanings specified in this Section 1. The words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. The terms defined in this Section include the plural as well as the singular. Affiliate: The term "Affiliate" of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder. Board Resolution: The term "Board Resolution" means a copy of a resolution certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized committee thereof (to the extent permitted by applicable law), and to be in full force and effect on the date of such certification, and delivered to the Warrant Agent. Business Day: The term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York or the city in which the Corporate Office is located are authorized or obligated by law or executive order to close or be closed. Close of business: The term "close of business" means 5 p.m. (New York City time). Corporate Office: The term "Corporate Office," or other similar term, shall mean the office of the Warrant Agent maintained for the purpose of exchanging, transferring or exercising the Warrants, which office is, at the date as of which this Agreement is dated, located at 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Exchange Act: The term "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Exercise Price: The term "Exercise Price" shall mean the exercise price as specified in the form of the Warrant Certificate (herein called the "Exercise Price"), attached as Exhibit A hereto, subject to adjustment from time to time upon the occurrence of the events enumerated in Section 12. Expiration Time: The term "Expiration Time" shall have the meaning specified in Section 12(f). Five-Year Terminable Warrant Agreement: The term "Five-Year Terminable Warrant Agreement" shall mean the Warrant Agreement, dated August 28, 2001, by and between the Company and The Bank of New York, as warrant agent, relating to the Five-Year Terminable Warrants. Individual Accredited Investor: The term "Individual Accredited Investor" shall mean an individual "accredited investor" as defined in Rule 501(a)(5) or (6) of Regulation D under the Securities Act. Institutional Accredited Investor: The term "Institutional Accredited Investor" shall mean an institutional "accredited investor" as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act. Officer's Certificate: The term "Officer's Certificate", when used with respect to the Company, shall mean a certificate signed by one of the President, the Chief Executive Officer, Chief Financial Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word added before or after the title "Vice President"), that is delivered to the Warrant Agent. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, which is delivered to the Warrant Agent. Person: The term "person" shall mean an individual, a corporation, a limited liability company, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof. Registration Rights Agreement: The term "Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of August 28, 2001, between the Company and the Purchasers, as such agreement may be amended from time to time. Restricted Securities: The term "Restricted Securities" has the meaning specified in Section 6(c). Rule 144A: The term "Rule 144A" shall mean Rule 144A as promulgated under the Securities Act. Securities Act: The term "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Subsidiary: The term "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. Trading Day: The term "Trading Day" has the meaning specified in Section 12(h)(v). Warrantholder or holder: The terms "Warrantholder" or "holder" as applied to any Warrant, or other similar terms (but excluding the term "beneficial holder"), shall mean any person in whose name at the time a particular Warrant is registered on the Warrant register. Warrant register: The term "Warrant register" shall mean the register maintained in the Corporate Office and in any other office or agency of the Company as designated herein, in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Warrants and transfers of Warrants. SECTION 2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. SECTION 3. Form of Warrant Certificates. The Warrant Certificates may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Warrants may be listed or designated for issuance, or to conform to usage. The Warrants shall be substantially in the form set forth in Exhibit A, which exhibit is hereby incorporated in and expressly made a part of this Agreement. Each Warrant Certificate shall represent such of the outstanding Warrants as shall be specified thereon. Warrants will be issued in registered form as definitive Warrant Certificates. Each Warrant shall evidence the right, subject to the provisions of this Agreement and of the applicable Warrant Certificate, to purchase one share of Common Stock, subject to adjustment pursuant to the provisions of Section 12 hereof. Each Warrant shall only be transferable or exchangeable as a Unit with a corresponding Five-Year Terminable Warrant. SECTION 4. Execution of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be dated as of the date of countersignature thereof by the Warrant Agent pursuant to Section 5 either upon initial issuance or upon exchange, substitution or transfer, shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board or the Chief Executive Officer or the President or Executive or Senior Vice President or any Vice President (whether or not designated by a number or number of words added before or after the title "Vice President") of the Company, and shall be attested by the manual or facsimile signature of the Chief Financial Officer or Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary of the Company. In case any officer of the Company who shall have signed any of the Warrant Certificates shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned by the Warrant Agent pursuant to Section 5, or disposed of by the Company, such Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such person had not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such an officer. SECTION 5. Registration, Countersignature and Issuance of Temporary Warrant Certificates. (a) Registration and Countersignature. Warrant Certificates distributed as provided for herein shall be registered in the names of the record holders of the Warrant Certificates to whom they are to be distributed. The Company and the Warrant Agent may deem and treat the registered holder of a Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise or conversion thereof and any distribution to the holder thereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. (b) Countersignature and Delivery. Subject to the second paragraph of Section 4, Warrant Certificates shall be countersigned by manual signature and dated the date of countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned and dated. The Warrant Certificates shall be numbered and shall be registered. Upon the receipt by the Warrant Agent of a written order of the Company, which order shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board, the Chief Executive Officer, the President , any Executive or Senior Vice President , or any Vice President (whether or not designated by a number or number of words added before or after the title "Vice President") and attested by the manual or facsimile signature of the Chief Financial Officer, Treasurer, Assistant Treasurer, Secretary or any Assistant Secretary of the Company, and shall specify the number of Warrants to be countersigned, the date of such Warrants and such other information as is necessary or as the Warrant Agent may reasonably request. Without any further action by the Company, the Warrant Agent is authorized, upon receipt from the Company at any time and from time to time of the Warrant Certificates, duly executed as provided in Section 4 hereof, to countersign the Warrant Certificates and make them available for delivery. Such countersignature shall be by a duly authorized signatory of the Warrant Agent (although it shall not be necessary for the same signatory to sign all Warrant Certificates). In case any authorized signatory of the Warrant Agent who shall have countersigned any of the Warrant Certificates shall cease to be such authorized signatory before the Warrant Certificate shall be disposed of by the Company, such Warrant Certificate nevertheless may be delivered or disposed of as though the person who countersigned such Warrant Certificate had not ceased to be such authorized signatory of the Warrant Agent; and any Warrant Certificate may be countersigned on behalf of the Warrant Agent by such persons as, at the actual time of countersignature of such Warrant Certificates, shall be the duly authorized signatories of the Warrant Agent, although at the time of the execution and delivery of this Agreement any such person is not such an authorized signatory. (c) Temporary Warrant Certificates. Pending the preparation of definitive Warrant Certificates, the Company may execute, and the Warrant Agent shall, upon written request of the Company, countersign and make available for delivery, temporary Warrant Certificates, which are printed, lithographed, typewritten or otherwise produced, substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. The Company will promptly execute and deliver to the Warrant Agent definitive Warrant Certificates. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable the for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at any office or agency maintained by the Company for that purpose pursuant to Section 8 hereof. Subject to the provisions of Section 6(i) hereof, such exchange shall be without charge to the holder. Upon surrender for cancellation of any one or more temporary Warrant Certificates, the Company shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, one or more definitive Warrant Certificates representing in the aggregate a like number of Warrants. Until so exchanged, the holder of a temporary Warrant Certificate shall in all respects be entitled to the same benefits under this Agreement as a holder of a definitive Warrant Certificate. SECTION 6. Registration of Transfers and Exchanges. (a) The Warrant Agent shall from time to time register in the Warrant register the transfer of any outstanding Warrant Certificates, upon surrender thereof accompanied by a written instrument of transfer in the form of the assignment appearing at the end of the form of the Warrant Certificate attached as Exhibit A hereto, duly executed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney. Such Warrant register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Warrant Agent is hereby appointed "Warrant registrar" for the purpose of registering Warrants and transfers of Warrants as herein provided. Upon any such registration of transfer, a new Warrant Certificate of like tenor and representing in the aggregate a like number of Warrants shall be issued to the transferee and the surrendered Warrant Certificate shall be cancelled by the Warrant Agent. Warrant Certificates may be exchanged at the option of the holders thereof, when surrendered to the Warrant Agent at its Corporate Office, for another Warrant Certificate or other Warrant Certificates of like tenor and representing in the aggregate a like number of Warrants. Warrant Certificates surrendered for exchange, transfer, exercise or conversion shall be cancelled by the Warrant Agent. Warrant Certificates cancelled as provided in this Section 6 shall then be disposed of by the Warrant Agent in accordance with its customary procedures. Neither the Company nor the Warrant Agent shall be required to exchange or register a transfer of any of the Warrants surrendered for exercise or, if a portion of any Warrant is surrendered for exercise, such portion thereof surrendered for exercise. The Warrant Agent is hereby authorized to countersign, in accordance with the provisions of Section 5 and this Section 6, the new Warrant Certificates required pursuant to the provisions of this Section, and for the purpose of any distribution of Warrant Certificates contemplated herein. Notwithstanding the foregoing, no Warrant shall be transferable without concurrent transfer of the Five-Year Terminable Warrant with which such Warrant comprises a Unit. The Warrant Agent shall not accept for transfer or exchange any such Warrant that is submitted for transfer or exchange without the concurrent submission of such Five-Year Terminable Warrant with which such Warrant comprises a Unit. (b) Prior and as a condition to any sale or transfer of a Warrant or the Common Stock issued upon exercise thereof that bears the restrictive legend set forth in Section 6(c) or Section 6(d), respectively (other than pursuant to a registration statement that has been declared effective under the Securities Act), such transferee shall, unless the Company otherwise agrees in writing and so notifies the Warrant Agent, furnish to the Company and the Warrant Agent a signed letter containing representations and agreements relating to restrictions on transfer substantially in the form set forth in Exhibit B to this Agreement and an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as the Company and/or the Warrant Agent reasonably may require to confirm that any such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. (c) Every Warrant that bears or is required under this Section 6(c) to bear the legend set forth in this Section 6(c) (together with any Common Stock issued upon exercise of the Warrants and required to bear the legend set forth in Section 6(d), collectively, the "Restricted Securities") shall be subject to the restrictions on transfer set forth in this Section 6(c) (including the legend set forth below), unless such restrictions on transfer shall be waived by written consent of the Company, and the holder of each such Restricted Security, by such holder's acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in Sections 6(c) and 6(d), the term "transfer" encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security. Until two (2) years after the original issuance date of any Warrant, any certificate evidencing such Warrant (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon exercise thereof which shall bear the legend set forth in Section 6(d), if applicable) shall bear a legend in substantially the following form (unless such Warrants have been transferred pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer), pursuant to the exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Warrant Agent): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to instruct the Warrant Agent to place the following legend on any Warrant held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any Warrant (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the Warrant Certificate representing such Warrant for exchange to the Warrant registrar in accordance with the provisions of this Section 6, be exchanged for a new Warrant Certificate, of like tenor and representing the same aggregate number of Warrants, which shall not bear the restrictive legend required by this Section 6(c). (d) Until the end of the holding period under Rule 144(k) of the Securities Act (or any successor provision) applicable to the Common Stock issued upon exercise of a Warrant, the stock certificate representing such Common Stock shall bear a legend in substantially the following form (unless such Common Stock has been sold pursuant to the exemption from registration provided by Rule 144 under the Securities Act or pursuant to a registration statement that has been declared effective under the Securities Act, and which continues to be effective at the time of such transfer, or such Common Stock has been issued upon the exercise of Warrants that have been transferred pursuant to a registration statement that has been declared effective under the Securities Act, and which was effective at the time of such transfer, or unless otherwise agreed by the Company in writing with written notice thereof to the Warrant Agent and any transfer agent for the Common Stock): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN THE EVENT THIS SECURITY BECOMES ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRANSFER AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRANSFER AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY THE HOLDER OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to instruct the transfer agent for the Company's Common Stock to place the following legend on any certificate evidencing shares of Common Stock held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 6(d). (e) Any Warrant or Common Stock issued upon the exercise of a Warrant that, prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor rule), is purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Warrants or Common Stock, as the case may be, no longer being "restricted securities" (as defined under Rule 144). (f) Any certificate evidencing any Warrant (and all securities issued in exchange therefor or substitution thereof, other than Common Stock issued upon exercise thereof) shall bear a legend (the "Unit Legend") in substantially the following form: EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE FIVE-YEAR TERMINABLE WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE FIVE-YEAR TERMINABLE WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED. (g) Notwithstanding any provision of Section 6 to the contrary, in the event Rule 144(k) as promulgated under the Securities Act (or any successor rule) is amended to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), from and after receipt by the Warrant Agent of the Officer's Certificate and Opinion of Counsel provided for in this Section 6(g), (i) each reference in Section 6(c) and 6(d) to "two (2) years" shall be deemed for all purposes hereof to be references to such changed period and (ii) all corresponding references in the Warrants shall be deemed for all purposes hereof to be references to such changed period, provided that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws. As soon as practicable after the Company has knowledge of the effectiveness of any such amendment to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), unless such changes would otherwise be prohibited by, or would otherwise cause a violation of, the then-applicable securities law, the Company shall provide to the Warrant Agent an Officer's Certificate and Opinion of Counsel informing the Warrant Agent of the effectiveness of such amendment and the effectiveness of the foregoing changes to Sections 6(c) and 6(d) and the Warrants. The provisions of this Section 6(g) will not be effective until such time as the Opinion of Counsel and Officer's Certificate have been received by the Warrant Agent hereunder. This Section 6(g) shall apply to successive amendments to Rule 144(k) (or any successor rule) changing the holding period thereunder. (h) The Warrant Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Warrant other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Agreement, and to examine the same to determine substantial compliance as to form with the express requirements hereof and thereof. (i) No service charge shall be charged to the Warrantholder for any exchange or registration of transfer of Warrants, but the Company may require payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection with the issue and delivery of Warrant Certificates in any name other than that of such Warrantholder. (j) All Warrants surrendered for the purpose of exercise, repurchase, exchange or registration of transfer, shall, if surrendered to the Company or any Warrant registrar, be surrendered to the Warrant Agent and promptly canceled by it, or if surrendered to the Warrant Agent, shall be promptly canceled by it, and no Warrants shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Warrant Agent shall dispose of canceled Warrants in accordance with its customary procedures. If the Company shall acquire any of the Warrants, such acquisition shall not operate as a redemption of satisfaction of the indebtedness represented by such Warrants unless and until the same are delivered to the Warrant Agent for cancellation. (k) During any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, Warrantholders (or holders of interests therein) and prospective purchasers designated by such Warrantholders (or such holders of interests therein) shall have the right to obtain from the Company upon request by such Warrantholders (or such holders of interests) or prospective purchasers the information that would be required by paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of securities eligible to be transferred pursuant to Rule 144A. In addition, if the Common Stock is eligible for sale pursuant to Rule 144A, the holders of the shares of Common Stock issuable upon exercise of the Warrants and prospective purchasers designated by such holders shall have the right to obtain from the Company upon request by such holder or prospective purchasers, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the information required by paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such shares of Common Stock. SECTION 7. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates. Upon receipt by the Company and the Warrant Agent (or any agent of the Company or the Warrant Agent, if requested by the Company) of evidence satisfactory to them of the loss, theft, destruction, defacement, or mutilation of any Warrant Certificate and of indemnity satisfactory to them and, in the case of mutilation or defacement, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser or holder in due course, the Company shall execute, and an authorized signatory of the Warrant Agent shall manually countersign and make available for delivery, in exchange for or in lieu of the lost, stolen, destroyed, defaced or mutilated Warrant Certificate, a new Warrant Certificate representing a like number of Warrants, bearing a number or other distinguishing symbol not contemporaneously outstanding. Every substitute Warrant Certificate executed and delivered pursuant to this Section 7 in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of (but shall be subject to all the limitations of rights set forth in) this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 7 are exclusive with respect to the replacement of lost, stolen, destroyed, defaced or mutilated Warrant Certificates and shall preclude (to the extent lawful) any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement of lost, stolen, destroyed, defaced or mutilated Warrant Certificates. The Warrant Agent is hereby authorized to countersign in accordance with the provisions of this Agreement and make available for delivery the new Warrant Certificates required pursuant to the provisions of this Section 7. SECTION 8. Offices for Exercise, Etc. So long as any of the Warrants remain outstanding, the Company shall designate and maintain in the Borough of Manhattan, the City of New York: (a) an office or agency where the Warrant Certificates may be presented for exercise, (b) an office or agency where the Warrant Certificates may be presented for registration of transfer and for exchange (including the exchange of temporary Warrant Certificates for definitive Warrant Certificates pursuant to Section 5(c) hereof), and (c) an office or agency where notices and demands to or upon the Company in respect of the Warrants or of this Agreement may be served. The Company may from time to time change or rescind such designation, as it may deem desirable or expedient; provided, however, that an office or agency shall at all times be maintained in the Borough of Manhattan, City of New York, as provided in the first sentence of this Section 8. In addition to such office or offices or agency or agencies, the Company may from time to time designate and maintain one or more additional offices or agencies within or outside the Borough of Manhattan, City of New York, where Warrant Certificates may be presented for exercise or for registration of transfer or for exchange, and the Company may from time to time change or rescind such designation, as it may deem desirable or expedient. The Company will give to the Warrant Agent written notice of the location of any such office or agency and of any change of location thereof. The Company hereby designates the Warrant Agent's Corporate Office, as the initial agency maintained for each such purpose. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notice may be served at the Corporate Office and the Company appoints the Warrant Agent as its agent to receive all such presentations, surrenders, notices and demands. SECTION 9. Duration of Warrants; Early Termination of Warrants. (a) The Warrants shall, subject to their earlier termination at the Company's option upon the terms and conditions set forth below in Section 9(b), expire at 5:00 p.m., New York City time, on August 28, 2002 (such date, the "Expiration Date"). Each Warrant may be exercised on any Business Day on or prior to the close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date (as defined below) if applicable, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. (b) If at any time prior to the Expiration Date, (1) the Closing Price (as defined in Section 12) per share of the Common Stock has exceeded 150% of the Exercise Price then in effect for at least twenty (20) Trading Days (as defined in Section 12(h)) within a period of thirty (30) consecutive Trading Days (the "Determination Period") and (2) a shelf registration statement covering resales of the Common Stock issuable upon exercise of the Warrants is effective and available for use at all times during the period beginning sixty (60) days prior to the Notice Date and ending on the Termination Date, and is expected to remain effective and available for use for at least thirty (30) days following the Termination Date, then the Company may, at its option, terminate the Warrants. By following the procedures set forth below, the Company may exercise this right of termination only if, within thirty (30) days following the Determination Period, the Company or, at its request, the Warrant Agent, in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such termination (the "Termination Notice," and the date such Termination Notice is mailed, the "Notice Date") to the holders of the Warrants at their last addresses as the same appear on the Warrant register (provided that if the Company shall give such notice, it shall also give such notice to the Warrant Agent). Such mailing shall be by first class mail and the Company shall contemporaneously issue a press release through PRNewswire or Bloomberg containing substantially the same information as the notice of termination described below. Each such notice of termination shall specify the CUSIP number or numbers of such Warrants, the Termination Date, that the Warrants may not be exercised after 5:00 p.m., New York City time, on the Termination Date, the current Exercise Price, that the Five-Year Terminable Warrants with which such Warrants comprise Units shall also terminate, and the CUSIP number or numbers of such Five-Year Warrants. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any Warrant shall not affect the validity of the proceedings for the termination of any other Warrant. If the conditions described in the preceding paragraph have been met, any Warrant not exercised before the close of business on the sixtieth (60th) day after the mailing date of the notice of termination (such sixtieth (60th) day, the "Termination Date") shall become void and all of the rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. SECTION 10. Exercise, Exercise Price, Settlement and Delivery; Separation of Warrants. (a) Warrants may be exercised during the period commencing on the day after the date of the Warrant Agreement and ending at 5:00 p.m., New York City time, on the Expiration Date by (i) surrendering, at any office or agency maintained for that purpose by the Company pursuant to Section 8 (each a "Warrant Exercise Office"), the Warrant Certificate evidencing such Warrants with the exercise form appended to the Warrant Certificate (the "Exercise Form") duly completed and signed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, and in the case of a transfer, such signature shall be guaranteed by an eligible guarantor institution, (ii) sending copies of such Exercise Form via facsimile to the Company, attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600), (iii) paying in full the Exercise Price for each such Warrant exercised and any other amounts required to be paid pursuant to Section 10(b) hereof, (iv) in the event of the exercise of a Warrant that has been transferred pursuant to a registration statement that has been declared effective under the Securities Act, and which was effective at the time of such transfer, furnishing to the Company and the Warrant Agent a signed letter containing certain representations and agreements relating to the restrictions on transfer set forth in Exhibit B hereto and an opinion of counsel if the Company so requests, (v) providing such additional documentation or certifications as the Company and/or the Warrant Agent may reasonably request, and (vi) surrendering to such Warrant Exercise Office the certificates representing such Five-Year Terminable Warrants with which such Warrants comprise Units. (b) Simultaneously with the exercise of each Warrant, payment in full of the Exercise Price shall be made in cash or by certified or official bank check to be delivered to the office or agency where the Warrant Certificate is being surrendered. In accordance with Section 10(e) hereof, if any holder exercises less than all of the Warrants evidenced by a Warrant Certificate, a new Warrant Certificate will be issued to such holders for the remaining number of Warrants, which Warrant Certificate shall bear the Unit Legend contained in Section 6(e) hereof. No payment or adjustment shall be made on account of any dividends on the shares of Common Stock issued upon exercise of a Warrant. (c) Upon such surrender of a Warrant Certificate, payment and collection of the Exercise Price at any Warrant Exercise Office (other than the Corporate Office), delivery of the letter and opinion of counsel referenced in Section 10(a), if required, and delivery of such additional documentation or certifications as the Company and/or the Warrant Agent may reasonably request, such Warrant Certificate and payment shall be promptly delivered to the Warrant Agent. The "Exercise Date" for a Warrant shall be the date when all of the applicable items referred to in the first sentence of paragraphs (a) and (b) of this Section 10 are received by the Warrant Agent, the Company and Latham & Watkins, at or prior to 11:00 a.m., New York City time, on a Business Day and the exercise of the Warrants will be effective as of such Exercise Date. If any items referred to in the first sentence of such paragraphs (a) and (b) are received after 11:00 a.m., New York City time, on a Business Day, the exercise of the Warrants to which such item relates will be effective on the next succeeding Business Day. Notwithstanding the foregoing, in the case of an exercise of Warrants on the Expiration Date or the Termination Date, if applicable, if all of the items referred to in the first sentence of paragraphs (a) and (b) are received by the Warrant Agent, the Company and Latham & Watkins, as applicable, at or prior to 5:00 p.m., New York City time, on such Expiration Date or Termination Date, the exercise of the Warrants to which such items relate will be effective on the Expiration Date or Termination Date, if applicable. For purposes of determining satisfaction of the requirement set forth above with respect to the Exercise Date for any Warrant, any facsimile required to be sent shall be deemed to have been received on a given day if such facsimile was sent before 11:00 a.m., New York City time, on such date (or 5:00 p.m., New York City time, if such date is the Expiration Date or the Termination Date), to the number listed above (unless a different number is specified in a notice filed with the Warrant Agent and mailed by the Warrant Agent at the Company's expense to each holder of Warrants at such holder's address appearing on the Warrant register) and confirmation of the transmission of such facsimile is obtained. (d) Upon the exercise of a Warrant in accordance with the terms hereof, the receipt of a Warrant Certificate and payment of the Exercise Price, the Warrant Agent shall: (i) cause an amount equal to the Exercise Price to be paid to the Company by crediting the same to the account designated by the Company in writing to the Warrant Agent for that purpose; (ii) promptly advise the Company by telephone of the amount so deposited to the Company's account and promptly confirm such telephonic advice in writing; and (iii) as soon as practicable, advise the Company in writing of the number of Warrants exercised in accordance with the terms and conditions of this Agreement and the Warrant Certificates, the instructions of each exercising holder of the Warrant Certificates with respect to delivery of the shares of Common Stock to which such holder is entitled upon such exercise, and such other information as the Company shall reasonably request. (e) Subject to Section 6 hereof, the Company shall use its reasonable best efforts to issue or cause to be issued to or upon the written order of the registered holder of the Warrant Certificate evidencing such exercised Warrant or Warrants, the shares of Common Stock to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder pursuant to the Exercise Form, as appended to the Warrant Certificate, within three (3) Business Days of such Exercise Date, and in any event, shall issue or caused to be issued such shares of Common Stock within ten (10) Business Days of such Exercise Date. Such shares of Common Stock shall be deemed to have been issued and any persons who are designated to be named therein shall be deemed to have become the holder of record of such shares of Common Stock as of the close of business on the Exercise Date. After such exercise of any Warrant or Warrants, the Company shall also issue or cause to be issued to or upon the written order of the registered holder of such Warrant Certificate, a new Warrant Certificate, countersigned by the Warrant Agent pursuant to written instruction, evidencing the number of Warrants, if any, remaining unexercised unless such Warrants shall have expired. (f) The Warrants and the Five-Year Terminable Warrants will not be separately transferable prior to the Separation Date. The "Separation Date," with respect to any Warrant, shall be the date upon which the Warrant with which such Five-Year Terminable Warrant comprises a Unit shall have been exercised in accordance with the terms hereof. SECTION 11. Cancellation of Warrant Certificates. Upon the termination of any Warrant pursuant to Section 9(b), the Warrant Certificate evidencing such Warrant shall thereupon be surrendered by the holder thereof to the Warrant Agent, and when so delivered, shall be canceled by the Warrant Agent and retired. The Warrant Agent shall cancel all Warrant Certificates properly surrendered for exchange, substitution, transfer or exercise. The Warrant Agent shall dispose of such canceled Warrant Certificates in accordance with is customary procedures. SECTION 12. Adjustment of Exercise Price and Number of Shares Issuable. The Exercise Price, the number of Shares issuable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 12. (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Exercise Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Exercise Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12(h)) fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 12(a) is declared but not so paid or made, the Exercise Price shall again be adjusted to the Exercise Price which would then be in effect if such dividend or distribution had not been declared. (b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Exercise Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Exercise Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for the determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price (as defined in Section 12(h)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price shall be adjusted so that the same shall equal the price determined by multiplying the Exercise Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares that the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such Current Market Price, and of which the denominator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Exercise Price shall be readjusted to the Exercise Price that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 12(a) applies) or evidences of its indebtedness or other assets (including securities, but excluding (1) any rights or warrants referred to in Section 12(c) and (2) dividends and distributions paid exclusively in cash (except as set forth in Section 12(e) and (f), (the foregoing hereinafter in this Section 12(d) called the "Securities")), unless the Company elects to reserve such Securities for distribution to the Warrantholders upon conversion of the Warrants so that any such holder converting Warrants will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Warrants into Common Stock immediately prior to the Record Date (as defined in Section 12(h) for such distribution of the Securities) then, in each such case, the Exercise Price shall be reduced so that the same shall be equal to the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on the Record Date (as defined in Section 12(h)) with respect to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in Section 12(h)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Warrantholder shall have the right to receive upon conversion of a Warrant (or any portion thereof) the amount of Securities such holder would have received had such holder converted such Warrant (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 12(h) to the extent possible, unless the Board of Directors in a Board Resolution reasonably determines that determining the fair market value during the Reference Period would not be in the best interest of the Warrantholder. In the event that the Company implements a new stockholder rights plan, such rights plan shall provide that upon exercise of the Warrants the holders will receive, in addition to the Common Stock issuable upon such exercise, the rights issued under such rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of exercise). Any distribution of rights or warrants pursuant to a stockholder rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants for the purposes of this Section 12(d). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"), (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable, and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 12(d) (and no adjustment to the Exercise Price under this Section 12(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Exercise Price under this Section 12(d), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Exercise Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Exercise Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12(d) and Sections 12(a) and (c), any dividend or distribution to which this Section 12(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock or rights or warrants to which Section 12(c) applies (and any Exercise Price reduction required by this Section 12(e) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Exercise Price reduction required by Sections 12(a) and (c) with respect to such dividend or distribution shall then be made, except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "Record Date fixed for such determination" and "Record Date" within the meaning of Section 12(a) and as "the date fixed for the determination of stockholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 12(c) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 12(a). (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 13 applies or as part of a distribution referred to in Section 12(d)), in an aggregate amount that, combined together with (1) the aggregate amount of any other such distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12(e) has been made, and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 12(f) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 12(h)) on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such date, the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on such Record Date by a fraction (i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the Record Date and (ii) the denominator of which shall be equal to the Current Market Price on such date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Warrantholder shall have the right to receive upon exercise of a Warrant (or any portion thereof) the amount of cash such holder would have received had such holder exercised such Warrant (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such dividend or distribution had not been declared. (f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (1) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this Section 12(f) has been made and (2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to Section 12(e) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 12(h)) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Exercise Price shall be adjusted so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to close of business on the date of the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction (if any) to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such tender offer had not been made. If the application of this Section 12(f) to any tender offer would result in an increase in the Exercise Price, no adjustment shall be made for such tender offer under this Section 12(f). (g) In case of a tender or exchange offer made by a person other than the Company or any Subsidiary for an amount that increases the offeror's ownership of Common Stock to more than 25% of the Common Stock outstanding and shall involve the payment by such person of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors in good faith, whose determination shall be conclusive, and described in a resolution of the Board of Directors) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of the Expiration Time the Board of Directors is not recommending rejection of the offer, the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that such person is obligated to purchase shares pursuant to any such tender or exchange offer, but such person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 12(g) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Section 13. (h) For purposes of this Section 12, the following terms shall have the meaning indicated: (i) "Closing Price" with respect to any securities on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in each case on the Nasdaq National Market or New York Stock Exchange, as applicable, or, if such security is not listed or admitted to trading on such National Market or Exchange, on the principal national security exchange or quotation system on which such security is quoted or listed or admitted to trading, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of such security on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or if not so available, in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or a price determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution. (ii) "Current Market Price" shall mean the average of the daily Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to the date in question; provided, however, that (1) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) or (g) occurs during such ten (10) consecutive Trading Days, the Closing Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the same fraction by which the Exercise Price is so required to be adjusted as a result of such other event, (2) if the "ex" date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) or (g) occurs on or after the "ex" date for the issuance or distribution requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Exercise Price is so required to be adjusted as a result of such other event, and (3) if the "ex" date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (1) or (2) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12(d), (f) or (g), whose determination shall be conclusive and described in a Board Resolution) of the evidences of indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the close of business on the day before such "ex" date. For purposes of any computation under Sections 12(f) or (g), the Current Market Price of the Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of Common Stock for such day and the next two succeeding Trading Days; provided, however, that if the "ex" date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) and (g) occurs on or after the Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Exercise Price is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (3) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such offer. Notwithstanding the foregoing, whenever successive adjustments to the Exercise Price are called for pursuant to this Section 12, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 12 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. (iii) "Fair market value" shall mean the amount which a willing buyer would pay a willing seller in an arm's length transaction. (iv) "Record Date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). (v) "Trading Day" shall mean (x) if the applicable security is listed or admitted for trading on the New York Stock Exchange or another national security exchange, a day on which the New York Stock Exchange or such other national security exchange, as applicable, is open for business or (y) if the applicable security is quoted on the Nasdaq National Market, a day on which trades may be made thereon or (z) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (i) The Company may make such reductions in the Exercise Price, in addition to those required by Sections 12(a), (b), (c), (d), (e), (f) and (g), as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the Exercise Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during such period and the Board of Directors shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive and described in a Board Resolution. Whenever the Exercise Price is reduced pursuant to the preceding sentence, the Company shall mail to the holder of each Warrant at his last address appearing on the Warrant register provided for in Section 8 a notice of the reduction at least fifteen (15) days prior to the date the reduced Exercise Price is to take effect, and such notice shall state the reduced Exercise Price and the period during which it will be in effect. (j) No adjustment in the Exercise Price shall be required under this Section 12 unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Section 12(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 12 shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of the Common Stock. (k) Whenever the Exercise Price is adjusted as provided in this Section 12, the Company shall promptly file with the Warrant Agent an Officer's Certificate setting forth the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. The Warrant Agent shall be fully protected in relying on any such certificate and on any adjustment therein contained and shall not be deemed to have knowledge of such adjustment unless and until it shall have received such certificate. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Exercise Price setting forth the adjusted Exercise Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Exercise Price to the holder of each Warrant at his last address appearing on the Warrant register provided for in Section 8, within twenty (20) days of the effective date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such adjustment. (l) In any case in which this Section 12 provides that an adjustment shall become effective immediately after a Record Date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Warrant exercised after such Record Date and before the occurrence of such event the additional shares of Common Stock issuable upon such exercise by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 17. (m) For purposes of this Section 12, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (n) Upon each adjustment of the Exercise Price pursuant to this Section 12, each Warrant shall thereupon evidence the right to purchase that number of shares of Common Stock (calculated to the nearest hundredth of a share) obtained by multiplying the number of shares of Common Stock purchasable immediately prior to such adjustment upon exercise of the Warrant by the Exercise Price in effect immediately prior to such adjustment and dividing the product so obtained by the Exercise Price in effect immediately after such adjustment. The adjustment pursuant to this Section 12(o) to the number of shares of Common Stock purchasable upon exercise of a Warrant shall be made each time an adjustment of the Exercise Price is made pursuant to this Section 12 (or would be made but for Section 12(j) hereof). SECTION 13. Effect of Reclassification, Consolidation, Merger or Sale. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of this Section 13 the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall cause notice of the execution of such supplemental warrant agreement to be mailed to each holder of Warrants, at such holder's address appearing on the Warrant register provided for in Section 6 of this Warrant agreement, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental warrant agreement. The above provisions of this Section shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 13 applies to any event or occurrence, Section 12 shall not apply. SECTION 14. Taxes on Shares Issued. The issue of stock certificates upon exercise of Warrants shall be made without charge to the exercising Warrantholder for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the holder of any Warrant exercised, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 15. Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock. The Company shall reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock for issuance upon exercise of the Warrants from time to time as such Warrants are presented for exercise. Before taking any action which would cause an adjustment reducing the Exercise Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Warrants, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Exercise Price. The Company covenants that all shares of Common Stock issued upon exercise of Warrants will be duly and validly issued and fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof. The Company further covenants that if at any time the Common Stock shall be listed on the New York Stock Exchange, Nasdaq National Market or any other national securities exchange or automated quotation system the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Warrants. SECTION 16. Fractional Warrants and Fractional Shares. (a) Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. (b) Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised, as herein provided, an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this Section 16(b), the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. SECTION 17. Notice to Warrantholders Prior to Certain Actions. In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Exercise Price pursuant to Section 12; or (b) the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants; or (c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company; the Company shall cause to be filed with the Warrant Agent and mailed by the Warrant Agent at the Company's expense to each holder of Warrants at such holder's address appearing on the Warrant register as promptly as possible but in any event at least fifteen days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Warrant Agent under the provisions of Section 21. In case at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, and in case at that time any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor warrant agent or in the name of the successor warrant agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name, and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name, and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. SECTION 19. Warrant Agent. The Warrant Agent undertakes the duties and obligations expressly imposed by this Agreement upon the following terms and conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant Certificates except as herein otherwise provided. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. (c) The Warrant Agent may consult at any time with counsel of its own selection (who may be counsel for the Company) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the Company and the Warrant Agent for all services rendered by the Warrant Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in connection with the execution and administration of its duties under this Agreement and to fully indemnify the Warrant Agent and save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel fees and expenses, for anything done or omitted by the Warrant Agent in the execution and administration of its duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with security and indemnity satisfactory to it for any costs and expenses which may be incurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear. (g) The Warrant Agent, and any stockholder, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct. (i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. SECTION 20. Disposition of Proceeds of Exercise of Warrants. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys received by the Warrant Agent on the purchase of shares of Common Stock upon the exercise of Warrants. SECTION 21. Change of Warrant Agent. If the Warrant Agent shall become incapable of acting as Warrant Agent, the Company shall appoint a successor. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such incapacity by the incapacitated Warrant Agent or by the registered holder of a Warrant Certificate, then the Warrant Agent or registered holder of any Warrant Certificate may apply, at the reasonable expense of the Company, to any court of competent jurisdiction for the appointment of a successor to the incapacitated Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor warrant agent whether appointed by the Company or by such a court, shall be a bank or trust company, in good standing, incorporated under the laws of the State of New York or of the United States of America, and having its principal office in the Borough of Manhattan in New York, New York, and must have at the time of its appointment as Warrant Agent a combined capital and surplus of at least one hundred million dollars. After appointment the successor warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the former Warrant Agent shall, upon payment of all amounts owed to it hereunder, deliver and transfer to the successor warrant agent any property at the time held by it hereunder and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor warrant agent as the case may be. SECTION 22. Notices to Company and Warrant Agent. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by the registered holder of any Warrant Certificate to or on the Company shall be sufficiently given or made if sent by mail, first class or registered, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows: TiVo Inc. 2160 Gold Street Alviso, CA 95002 Attention: Chief Financial Officer In case the Company shall fail to maintain such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the principal corporate trust office of the Warrant Agent. Any notice pursuant to this Agreement to be given by the Company or by the registered holder of any Warrant Certificate to the Warrant Agent shall be sufficiently given if sent by first-class mail, postage pre-paid, addressed (until another address is filed in writing by the Warrant Agent with the Company) to the Warrant Agent as follows: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration SECTION 23. Supplements and Amendments. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of Warrant Certificates; provided, however, that the written consent of the holders of Warrant Certificates representing a majority of the Warrants then outstanding (but not including any Warrants then held by the Company or its Affiliates) is required to amend or supplement the Warrant Agreement in any manner that would have a material adverse effect on the interests of the Warrantholders and provided further, that the consent of each holder of the Warrants affected is required for any amendment which would increase the Exercise Price, decrease the amount by which the Closing Price must exceed the Exercise Price that is required for the Company to exercise its option to terminate the Warrants pursuant to Section 9(b), or decrease the number of shares of Common Stock purchasable upon exercise of the Warrants, except, in any case, pursuant to the adjustments provided for in Section 12. Upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section, the Warrant Agent shall execute such supplement or amendment. Notwithstanding any other provision hereof, the Warrant Agent's consent must be obtained regarding any amendment or supplement pursuant to this Section 23 which alters the Warrant Agent's rights or duties. It shall not be necessary for the consent of the Warrantholders under this Section 23 to approve the particular form of any proposed supplemental warrant agreement, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 24. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 25. Termination. This Agreement shall terminate at the close of business on August 28, 2002. Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants have been exercised or terminated pursuant to Section 9(b). The provisions of Section 19 shall survive such termination. SECTION 26. Governing Law. THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. SECTION 27. Benefits of This Agreement. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company, the Warrant Agent and the registered holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. SECTION 28. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. [SIGNATURE PAGE TO WARRANT AGREEMENT] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. TIVO INC. By: /s/ Michael Ramsay -------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney ---------------------------------- Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer THE BANK OF NEW YORK, as Warrant Agent By: /s/ Michael Pitfick ------------------------------- Name: Michael Pitfick Title: Assistant Treasurer EXHIBIT A FORM OF WARRANT TIVO INC. No. CUSIP No. ------------- ------------ [THE FOLLOWING PARAGRAPHS SHALL APPEAR ON THE FACE OF EACH RESTRICTED WARRANT.] THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. [THE FOLLOWING PARAGRAPH SHALL APPEAR ON THE FACE OF EACH WARRANT:] EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE FIVE-YEAR TERMINABLE WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE FIVE-YEAR TERMINABLE WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED. [THE COMPANY MAY, BUT IS NOT OBLIGATED TO INSTRUCT THE WARRANT AGENT TO PLACE THE FOLLOWING LEGEND ON ANY WARRANT HELD BY OR TRANSFERRED TO AN "AFFILIATE" (AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT):] THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. WARRANT REPRESENTING _________ WARRANTS TO PURCHASE COMMON STOCK This certifies that _________, or its registered assigns, is the registered owner of __________ Warrants, each expiring August 28, 2002, and each of which entitles the registered owner thereof (the "Warrantholder") to purchase at any time prior to the expiration hereof from TIVO INC., a Delaware corporation (the "Company"),one share of Common Stock (the "Common Stock"), $0.001 par value per share, of the Company at the purchase price of $6.73 per share of Common Stock (the "Exercise Price"), subject to adjustment as provided in the Warrant Agreement hereinafter referred to. The Warrants evidenced by this Warrant are issued under and in accordance with the Warrant Agreement, dated as of August 28, 2001 (the "Warrant Agreement"), between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"), and the Registration Rights Agreement, dated of even date therewith (the "Registration Rights Agreement"), among the Company and the initial purchasers of the Warrants, and are subject to the terms and provisions contained therein, to all of which terms and provisions the holder of this Warrant consents by acceptance of this Warrant and which Warrant Agreement and Registration Rights Agreement are hereby incorporated by reference in and made a part of this Warrant. Any Warrants represented by this Certificate shall be transferable or exchangeable only as a Unit with a like number of Five-Year Terminable Warrants (as defined in the Warrant Agreement). Reference is hereby made to the Warrant Agreement and the Registration Rights Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Warrantholders. The summary of the terms of the Warrant Agreement and the Registration Rights Agreement contained in this Warrant is qualified in its entirety by express reference to such agreements. All capitalized terms used but not defined in this Warrant shall have the meanings assigned to them in the Warrant Agreement. As provided in the Warrant Agreement, and subject to the terms and conditions set forth therein including early termination at the Company's option, the Warrants shall be exercisable, unless earlier terminated at the Company's option as described below, if applicable, at any time during the period commencing on the day after the date of the Warrant Agreement and ending at 5:00 p.m., New York time, on August 28, 2002 (the "Expiration Date"). This Warrant may be exercised on any Business Day on or prior to close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. If at any time prior to the Expiration Date, (1) the Closing Price (as defined in Section 12 of the Warrant Agreement) per share of the Common Stock has exceeded 150% of the Exercise Price then in effect for at least 20 Trading Days (as defined in Section 12(h) of the Warrant Agreement) within a period of 30 consecutive Trading Days (the "Determination Period") and (2) a shelf registration statement covering resales of the Common Stock issuable upon exercise of the Warrants is effective and available for use at all times during the period beginning 60 days prior to the Notice Date and ending on the Termination Date, and is expected to remain effective and available for use for at least 30 days following the Termination Date, then the Company may, at its option, terminate the Warrants. By following the procedures set forth below, the Company may exercise this right of termination only if, within 30 days following the Determination Period, the Company or, at its request, the Warrant Agent, in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such termination (the "Termination Notice," and the date such Termination Notice is mailed, the "Notice Date") to the holders of the Warrants at their last addresses as the same appear on the Warrant register (provided that if the Company shall give such notice, it shall also give such notice to the Warrant Agent). Such mailing shall be by first class mail and the Company shall contemporaneously issue a press release through PRNewswire or Bloomberg containing substantially the same information as the notice of termination described below. Each such notice of termination shall specify the CUSIP number or numbers of such Warrants, the Termination Date, that the Warrants may not be exercised after 5:00 p.m., New York City time, on the Termination Date, the current Exercise Price, that the Five-Year Terminable Warrants with which such Warrants comprise Units shall also terminate, and the CUSIP number or numbers of such Five-Year Warrants. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any Warrant shall not affect the validity of the proceedings for the termination of any other Warrant. If the conditions described in the preceding paragraph have been met, any Warrant not exercised before the close of business on the 60th day after the mailing date of the notice of termination (such 60th day, the "Termination Date") shall become void and all of the rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. The Exercise Price and the number of shares of Common Stock purchasable upon exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of Section 13 of the Warrant Agreement the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12 of the Warrant Agreement. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall not be required to issue fractions of shares of Common Sock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this calculation, the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. The Company covenants that it will at all times through 5:00 p.m., New York time, on the Expiration Date (or, if the Expiration Date shall not be a Business Day, then on the next-succeeding Business Day) reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury or a combination thereof of Common Stock, solely for the purpose of issue upon exercise of Warrants as herein provided, sufficient shares of Common Stock, for issuance upon exercise of, the Warrants from time to time as such Warrants are presented for exercise. The Company covenants that all shares of Common Stock issued upon exercise of Warrants shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof. The initial issuance of certificates of Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrantholders for any tax in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised, subject to the restrictions on transfer set forth herein and in the Warrant Agreement; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Subject to the terms and provisions of the Registration Rights Agreement, the Company shall file under the Securities Act a registration statement providing for the registration of all of the Warrants and the shares of Common Stock issuable upon exercise thereof. As provided in the Warrant Agreement and the Registration Rights Agreement, the Warrantholders have additional rights and duties with respect to the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants. A Warrantholder may be required to indemnify and hold the Company and certain other persons harmless in connection with written information furnished to the Company by or on behalf of such Warrantholder specifically for use in any registration statement, or any preliminary or final or summary Prospectus contained therein or any amendment or supplement thereto. By its acceptance of any Warrant represented by a Warrant Certificate bearing a restrictive legend, each holder and beneficial owner of such a Warrant acknowledges the restrictions on transfer of such a Warrant set forth in such legend and agrees that it will transfer such a Warrant only in accordance with such legend. Subject to the restrictions on transfer set forth herein and in the Warrant Agreement, this Warrant and all rights hereunder are transferable by the registered Warrantholder hereof, in whole or in part, on the Warrant register, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached "Form of Assignment," by the registered Warrantholder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, the Company will issue and the Warrant Agent will countersign and deliver to such Warrantholder a new Warrant Certificate or Warrant Certificates with respect to any portion not so transferred. Each taker and holder of this Warrant, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, the Company and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the holder of this Warrant shall not be entitled, as such, to any rights of a stockholder of the Company, including, without limitation, the right to vote or to consent to any action of the stockholders of the Company, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders of the Company, and shall not be entitled to receive any notice of any proceedings of the Company except as provided in the Warrant Agreement. Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. This Warrant shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. TIVO INC. By: ------------------------- Name: Title: Attest: By: ----------------------- Name: Title: Countersigned: THE BANK OF NEW YORK as Warrant Agent By: ___________________________ Dated: EXERCISE FORM (To be executed only upon exercise of Warrant) The undersigned registered holder of a Warrant Certificate representing __________ Warrants irrevocably elects to exercise ________ of the Warrants represented by the Warrant Certificate for the purchase of one share (subject to adjustment as set forth in the Warrant Agreement) of Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and herewith makes payment of $______ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), all at the exercise price and on the terms and conditions specified in the Warrant and the Warrant Agreement therein referred to, and surrenders all of its right, title and interest in the number of Warrants exercised herein to TiVo Inc., and directs that the shares of Common Stock or other securities or property deliverable upon the exercise of such Warrants, and any Warrant Certificate or interests in the Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. Dated: ----------------------------------- (Signature of Warrantholder) ----------------------------------- (Street Address) ----------------------------------- (City) (State) (Zip Code) Signature Guaranteed By: ----------------------------------- This form must be delivered to the Warrant Agent at the Corporate Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM: Social Security Number or identifying number: Name: -------------------------------------------------------------- Street Address: ---------------------------------------------------- City, State and Zip Code: ------------------------------------------ IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER: ---------------------------------------------------- ACCOUNT NAME: ------------------------------------------------------ ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number:_______________________ Name: --------------------------------------------------------------- Street Address: ----------------------------------------------------- City, State and Zip Code: ------------------------------------------- FORM OF ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below:
Social Security Number Number or Other Name of Assignees Address of Warrants Identifying Number ----------------------------- ---------------------------- ------------------ ---------------------
and does hereby irrevocably constitute and appoint _____________________, the undersigned's attorney, to make such transfer on the books of TiVo Inc. maintained for the purpose, with full power of substitution in the premises. In connection with any transfer occurring within two years (or such longer or shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Warrant (unless such Warrant is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Warrant is being transferred: |_| *To TiVo Inc. or a subsidiary thereof; or |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Warrant is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): |_| *The transferee is an Affiliate of the Company. Dated: --------------------------------------- (Signature of Warrantholder) --------------------------------------- (Street Address) --------------------------------------- (City) (State) (Zip Code) Signature Guaranteed By: --------------------------------------- EXHIBIT B FORM OF TRANSFER LETTER OF REPRESENTATIONS (To be delivered upon exercise of Warrants or upon certain transfers of Warrants WITHOUT EFFECTIVE REGISTRATION STATEMENT) We are delivering this letter in connection with (i) the exercise of Warrants (as defined in the Warrant Agreement, dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (the "Company") and The Bank of New York, a New York banking corporation (the "Warrant Agent")) by us for shares of common stock, par value $.001 per share, of the Company (the "Common Stock") or (ii) the sale or transfer to us of Warrants, other than pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended (the "Securities Act"). The Warrants and the Common Stock are sometimes referred to herein as the "Securities." We hereby confirm that: (i) we are an "accredited investor" within the meaning of Rule 501(a)(1),(2), (3), (5), (6) or (7) under the Securities Act; (ii) any purchase or receipt of the Securities by us will be for investment purposes and for our own account, not as a nominee or agent; (iii) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing or receiving the Securities ; (iii) we do not have need for liquidity in our investment in the Securities , we have the ability to bear the economic risks of our investment in the Securities for an indefinite period of time and we are able to afford the complete loss of our investment in the Securities; (iv) we are not acquiring the Securities with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction, and we have no present intention of selling, granting any participation in, or otherwise distributing the same; (v) we have had access to such information regarding the Company necessary in order for us to make an informed decision and any such information which we have requested have been made available for us or our attorney, accountant, or advisor; and (vi) we or our attorney, accountant, or advisor have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the business, management and financial affairs of the Company and the terms and conditions of the acquisition by us of the Securities and all such questions have been answered to our full satisfaction, and we have acquired sufficient information about the Company to make an informed and knowledgeable decision to acquire the Securities. We understand that the Securities have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Securities, that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction meeting the requirements of Rule 144 under the Securities Act, outside the United States in a transaction meeting the requirements of Rule 904 under the Securities Act, or in accordance with another exemption from the registration requirements of the Securities Act, (ii) to the Company or (iii) pursuant to an effective registration statement, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction. We agree that we will furnish the Company, the Warrant Agent and, if exercising Warrants, the Company's transfer agent an opinion of counsel, if the Company so requests, that the foregoing restrictions on transfer have been complied with. We understand that the Warrant Agent will not be required to accept for registration of transfer or exercise any Warrants, except upon presentation of evidence satisfactory to the Company, including an opinion of counsel if the Company so requests, that the foregoing restrictions on transfer or exercise have been complied with. We acknowledge that the Company and others will rely upon our confirmations, acknowledgements and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete. ------------------------------ (Name) By:____________________________ Name: Title: Address: EX-10 12 s304469.txt 5 YR. WARRANT AGREEMENT Exhibit 10 [Five-Year Terminable Warrant Agreement] TiVo Inc. and The Bank of New York as Warrant Agent WARRANT AGREEMENT DATED as of August 28, 2001
TABLE OF CONTENTS Page Number SECTION 1. Definitions.........................................................................................1 SECTION 2. Appointment of Warrant Agent........................................................................4 SECTION 3. Form of Warrant Certificates........................................................................4 SECTION 4. Execution of Warrant Certificates...................................................................4 SECTION 5. Registration, Countersignature and Issuance of Temporary Warrant Certificates.......................5 SECTION 6. Registration of Transfers and Exchanges.............................................................6 SECTION 7. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates.................................13 SECTION 8. Offices for Exercise, Etc..........................................................................14 SECTION 9. Duration of Warrants; Early Termination of Warrants................................................14 SECTION 10. Exercise, Exercise Price, Settlement and Delivery; Separation of Warrants..........................15 SECTION 11. Cancellation of Warrant Certificates...............................................................18 SECTION 12. Adjustment of Exercise Price and Number of Shares Issuable.........................................18 SECTION 13. Effect of Reclassification, Consolidation, Merger or Sale..........................................27 SECTION 14. Taxes on Shares Issued.............................................................................28 SECTION 15. Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock............................28 SECTION 16. Fractional Warrants and Fractional Shares..........................................................28 SECTION 17. Notice to Warrantholders Prior to Certain Actions..................................................29 SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent...........................................30 SECTION 19. Warrant Agent......................................................................................30 SECTION 20. Disposition of Proceeds of Exercise of Warrants....................................................32 SECTION 21. Change of Warrant Agent............................................................................32 SECTION 22. Notices to Company and Warrant Agent...............................................................32 SECTION 23. Supplements and Amendments.........................................................................33 SECTION 24. Successors.........................................................................................34 SECTION 25. Termination........................................................................................34 SECTION 26. Governing Law......................................................................................34 SECTION 27. Benefits of This Agreement.........................................................................34 SECTION 28. Counterparts.......................................................................................34 Exhibit A Form of Warrant.........................................................................................A-1 Exhibit B Form of Transfer Letter of Representations..............................................................B-1
WARRANT AGREEMENT ("Agreement") dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (together with any successor thereto, the "Company"), and The Bank of New York, a New York banking corporation, not in its individual capacity but solely as warrant agent (together with any successor warrant agent, the "Warrant Agent"). WHEREAS, the Company has entered into purchase or acquisition agreements with certain purchasers or acquirors (the "Purchasers"), in which the Company has agreed to issue and/or sell to the Purchasers (i) an aggregate principal amount of $51,750,000 of its 7% Convertible Senior Notes due 2006 (the "Notes") to be issued under an Indenture dated as of August 28, 2001 between the Company and The Bank of New York, a New York banking corporation, as trustee (in such capacity, the "Trustee"), (ii) warrants to purchase 2,682,600 shares of the Company's common stock, par value $.001 per share (the "Common Stock"), (iii) and 4,064,542 units (each a "Unit," and collectively, the "Units"), each consisting of (a) one warrant (a "One-Year Warrant") to purchase one share of Common Stock and (b) one warrant (a "Warrant," and collectively the "Warrants", and the certificates evidencing the Warrants hereinafter referred to as the "Warrant Certificates") to purchase 0.33 of one share of Common Stock. WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company to assist the Company in connection with the issuance, exchange, cancellation, replacement and exercise of the Warrants, and this Agreement sets forth, among other things, the terms and conditions on which the Warrants may be issued, exchanged, cancelled, replaced and exercised; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1. Definitions. The terms defined in this Section 1 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective meanings specified in this Section 1. The words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. The terms defined in this Section include the plural as well as the singular. Affiliate: The term "Affiliate" of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder. Board Resolution: The term "Board Resolution" means a copy of a resolution certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized committee thereof (to the extent permitted by applicable law), and to be in full force and effect on the date of such certification, and delivered to the Warrant Agent. Business Day: The term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York or the city in which the Corporate Office is located are authorized or obligated by law or executive order to close or be closed. Cashless Exercise. The term "Cashless Exercise" shall have the meaning specified in Section 10(b). Cashless Exercise Ratio: The term "Cashless Exercise Ratio" shall have the meaning specified in Section 10(b). Close of business: The term "close of business" means 5 p.m. (New York City time). Corporate Office: The term "Corporate Office," or other similar term, shall mean the office of the Warrant Agent maintained for the purpose of exchanging, transferring or exercising the Warrants, which office is, at the date as of which this Agreement is dated, located at 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Exchange Act: The term "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Exercise Date: The term "Exercise Date" shall have the meaning specified in Section 10(c). Exercise Form: The term "Exercise Form" shall have the meaning specified in Section 10(a). Exercise Price: The term "Exercise Price" shall mean the exercise price as specified in the form of the Warrant Certificate (herein called the "Exercise Price"), attached as Exhibit A hereto, subject to adjustment from time to time upon the occurrence of the events enumerated in Section 12. Exercise Price Per Share: The term "Exercise Price Per Share" shall have the meaning specified in Section 10(b). Expiration Time: The term "Expiration Time" shall have the meaning specified in Section 12(f). Individual Accredited Investor: The term "Individual Accredited Investor" shall mean an individual "accredited investor" as defined in Rule 501(a)(5) or (6) of Regulation D under the Securities Act. Institutional Accredited Investor: The term "Institutional Accredited Investor" shall mean an institutional "accredited investor" as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act. Officer's Certificate: The term "Officer's Certificate", when used with respect to the Company, shall mean a certificate signed by one of the President, the Chief Executive Officer, Chief Financial Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word added before or after the title "Vice President"), that is delivered to the Warrant Agent. One-Year Warrant Agreement: The term "One-Year Warrant Agreement" shall mean the Warrant Agreement, dated August 28, 2001, by and between the Company and The Bank of New York, as warrant agent, relating to the One-Year Warrants. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, which is delivered to the Warrant Agent. Person: The term "person" shall mean an individual, a corporation, a limited liability company, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof. Registration Rights Agreement: The term "Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of August 28, 2001, between the Company and the Purchasers, as such agreement may be amended from time to time. Restricted Securities: The term "Restricted Securities" has the meaning specified in Section 6(c). Rule 144A: The term "Rule 144A" shall mean Rule 144A as promulgated under the Securities Act. Securities Act: The term "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Separation Date: The term "Separation Date" shall have the meaning specified in Section 10(f). Subsidiary: The term "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. Trading Day: The term "Trading Day" has the meaning specified in Section 12(h)(v). Warrant Exercise Office. The term "Warrant Exercise Office" shall have the meaning specified in Section 10(a). Warrantholder or holder: The terms "Warrantholder" or "holder" as applied to any Warrant, or other similar terms (but excluding the term "beneficial holder"), shall mean any person in whose name at the time a particular Warrant is registered on the Warrant register. Warrant register: The term "Warrant register" shall mean the register maintained in the Corporate Office and in any other office or agency of the Company as designated herein, in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Warrants and transfers of Warrants. SECTION 2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. SECTION 3. Form of Warrant Certificates. The Warrant Certificates may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Warrants may be listed or designated for issuance, or to conform to usage. The Warrants shall be substantially in the form set forth in Exhibit A, which exhibit is hereby incorporated in and expressly made a part of this Agreement. Each Warrant Certificate shall represent such of the outstanding Warrants as shall be specified thereon. Warrants will be issued in registered form as definitive Warrant Certificates. Each Warrant shall evidence the right, subject to the provisions of this Agreement and of the applicable Warrant Certificate, to purchase 0.33 of one share of Common Stock, subject to adjustment pursuant to the provisions of Section 12 hereof. Until the Separation Date (as defined in Section 10(f) hereof), each Warrant shall only be transferable or exchangeable as a Unit with a corresponding One-Year Warrant. SECTION 4. Execution of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be dated as of the date of countersignature thereof by the Warrant Agent pursuant to Section 5 either upon initial issuance or upon exchange, substitution or transfer, shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board or the Chief Executive Officer or the President or Executive or Senior Vice President or any Vice President (whether or not designated by a number or number of words added before or after the title "Vice President") of the Company, and shall be attested by the manual or facsimile signature of the Chief Financial Officer or Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary of the Company. In case any officer of the Company who shall have signed any of the Warrant Certificates shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned by the Warrant Agent pursuant to Section 5, or disposed of by the Company, such Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such person had not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such an officer. SECTION 5. Registration, Countersignature and Issuance of Temporary Warrant Certificates. (a) Registration and Countersignature. Warrant Certificates distributed as provided for herein shall be registered in the names of the record holders of the Warrant Certificates to whom they are to be distributed. The Company and the Warrant Agent may deem and treat the registered holder of a Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise or conversion thereof and any distribution to the holder thereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. (b) Countersignature and Delivery. Subject to the second paragraph of Section 4, Warrant Certificates shall be countersigned by manual signature and dated the date of countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned and dated. The Warrant Certificates shall be numbered and shall be registered. Upon the receipt by the Warrant Agent of a written order of the Company, which order shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board, the Chief Executive Officer, the President , any Executive or Senior Vice President , or any Vice President (whether or not designated by a number or number of words added before or after the title "Vice President") and attested by the manual or facsimile signature of the Chief Financial Officer, Treasurer, Assistant Treasurer, Secretary or any Assistant Secretary of the Company, and shall specify the number of Warrants to be countersigned, the date of such Warrants and such other information as is necessary or as the Warrant Agent may reasonably request. Without any further action by the Company, the Warrant Agent is authorized, upon receipt from the Company at any time and from time to time of the Warrant Certificates, duly executed as provided in Section 4 hereof, to countersign the Warrant Certificates and make them available for delivery. Such countersignature shall be by a duly authorized signatory of the Warrant Agent (although it shall not be necessary for the same signatory to sign all Warrant Certificates). In case any authorized signatory of the Warrant Agent who shall have countersigned any of the Warrant Certificates shall cease to be such authorized signatory before the Warrant Certificate shall be disposed of by the Company, such Warrant Certificate nevertheless may be delivered or disposed of as though the person who countersigned such Warrant Certificate had not ceased to be such authorized signatory of the Warrant Agent; and any Warrant Certificate may be countersigned on behalf of the Warrant Agent by such persons as, at the actual time of countersignature of such Warrant Certificates, shall be the duly authorized signatories of the Warrant Agent, although at the time of the execution and delivery of this Agreement any such person is not such an authorized signatory. (c) Temporary Warrant Certificates. Pending the preparation of definitive Warrant Certificates, the Company may execute, and the Warrant Agent shall, upon written request of the Company, countersign and make available for delivery, temporary Warrant Certificates, which are printed, lithographed, typewritten or otherwise produced, substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. The Company will promptly execute and deliver to the Warrant Agent definitive Warrant Certificates. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at any office or agency maintained by the Company for that purpose pursuant to Section 8 hereof. Subject to the provisions of Section 6(h) hereof, such exchange shall be without charge to the holder. Upon surrender for cancellation of any one or more temporary Warrant Certificates, the Company shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, one or more definitive Warrant Certificates representing in the aggregate a like number of Warrants. Until so exchanged, the holder of a temporary Warrant Certificate shall in all respects be entitled to the same benefits under this Agreement as a holder of a definitive Warrant Certificate. SECTION 6. Registration of Transfers and Exchanges. (a) The Warrant Agent shall from time to time register in the Warrant register the transfer of any outstanding Warrant Certificates, upon surrender thereof accompanied by a written instrument of transfer in the form of the assignment appearing at the end of the form of the Warrant Certificate attached as Exhibit A hereto, duly executed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney. Such Warrant register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Warrant Agent is hereby appointed "Warrant registrar" for the purpose of registering Warrants and transfers of Warrants as herein provided. Upon any such registration of transfer, a new Warrant Certificate of like tenor and representing in the aggregate a like number of Warrants shall be issued to the transferee and the surrendered Warrant Certificate shall be cancelled by the Warrant Agent. Warrant Certificates may be exchanged at the option of the holders thereof, when surrendered to the Warrant Agent at its Corporate Office, for another Warrant Certificate or other Warrant Certificates of like tenor and representing in the aggregate a like number of Warrants. Warrant Certificates surrendered for exchange, transfer, exercise or conversion shall be cancelled by the Warrant Agent. Warrant Certificates cancelled as provided in this Section 6 shall then be disposed of by the Warrant Agent in accordance with its customary procedures. Neither the Company nor the Warrant Agent shall be required to exchange or register a transfer of any of the Warrants surrendered for exercise or, if a portion of any Warrant is surrendered for exercise, such portion thereof surrendered for exercise. The Warrant Agent is hereby authorized to countersign, in accordance with the provisions of Section 5 and this Section 6, the new Warrant Certificates required pursuant to the provisions of this Section, and for the purpose of any distribution of Warrant Certificates contemplated herein. Notwithstanding the foregoing, until the Separation Date with respect to any Warrant, such Warrant shall not be transferable without concurrent transfer of the One-Year Warrant with which such Warrant comprises a Unit. The Warrant Agent shall not accept for transfer or exchange any such Warrant that is submitted for transfer or exchange without the concurrent submission of such One-Year Warrant with which such Warrant comprises a Unit. (b) Prior and as a condition to any sale or transfer of a Warrant or the Common Stock issued upon exercise thereof that bears the restrictive legend set forth in Section 6(c) or Section 6(d), respectively (other than pursuant to a registration statement that has been declared effective under the Securities Act), such transferee shall, unless the Company otherwise agrees in writing and so notifies the Warrant Agent, furnish to the Company and the Warrant Agent a signed letter containing representations and agreements relating to restrictions on transfer substantially in the form set forth in Exhibit B to this Agreement and an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as the Company and/or the Warrant Agent reasonably may require to confirm that any such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. (c) Every Warrant that bears or is required under this Section 6(c) to bear the legend set forth in this Section 6(c) (together with any Common Stock issued upon exercise of the Warrants and required to bear the legend set forth in Section 6(d), collectively, the "Restricted Securities") shall be subject to the restrictions on transfer set forth in this Section 6(c) (including the legend set forth below), unless such restrictions on transfer shall be waived by written consent of the Company, and the holder of each such Restricted Security, by such holder's acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in Sections 6(c) and 6(d), the term "transfer" encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security. Until two (2) years after the original issuance date of any Warrant, any certificate evidencing such Warrant (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon exercise thereof which shall bear the legend set forth in Section 6(d), if applicable) shall bear a legend in substantially the following form (unless such Warrants have been transferred pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer), pursuant to the exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Warrant Agent): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to instruct the Warrant Agent to place the following legend on any Warrant held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any Warrant (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the Warrant Certificate representing such Warrant for exchange to the Warrant registrar in accordance with the provisions of this Section 6, be exchanged for a new Warrant Certificate, of like tenor and representing the same aggregate number of Warrants, which shall not bear the restrictive legend required by this Section 6(c). (d) Until the end of the holding period under Rule 144(k) of the Securities Act (or any successor provision) applicable to the Common Stock issued upon exercise of a Warrant, the stock certificate representing such Common Stock shall bear a legend in substantially the following form (unless such Common Stock has been sold pursuant to the exemption from registration provided by Rule 144 under the Securities Act or pursuant to a registration statement that has been declared effective under the Securities Act, and which continues to be effective at the time of such transfer, or such Common Stock has been issued upon the exercise of Warrants that have been transferred pursuant to a registration statement that has been declared effective under the Securities Act and which was effective at the time of such transfer, or unless otherwise agreed by the Company in writing with written notice thereof to the Warrant Agent and any transfer agent for the Common Stock): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN THE EVENT THIS SECURITY BECOMES ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRANSFER AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRANSFER AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY THE HOLDER OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to instruct the transfer agent for the Company's Common Stock to place the following legend on any certificate evidencing shares of Common Stock held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 6(d). (e) Any Warrant or Common Stock issued upon the exercise of a Warrant that, prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor rule), is purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Warrants or Common Stock, as the case may be, no longer being "restricted securities" (as defined under Rule 144). (f) Until the Separation Date, as defined in Section 10(f) hereof, any certificate evidencing any Warrant (and all securities issued in exchange therefor or substitution thereof, other than Common Stock issued upon exercise thereof) shall bear a legend (the "Unit Legend") in substantially the following form: EXCEPT AS DESCRIBED IN THE NEXT SENTENCE, EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE ONE-YEAR WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE ONE-YEAR WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED. UPON THE EXERCISE OF THE ONE-YEAR WARRANTS TO WHICH ALL OR A PORTION OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE RELATE, SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS EXERCISED) MAY BE TRANSFERRED SEPARATELY AND THIS LEGEND SHALL BE REMOVED WITH RESPECT TO SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS EXERCISED). (g) Notwithstanding any provision of Section 6 to the contrary, in the event Rule 144(k) as promulgated under the Securities Act (or any successor rule) is amended to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), from and after receipt by the Warrant Agent of the Officer's Certificate and Opinion of Counsel provided for in this Section 6(f), (i) each reference in Section 6(c) and 6(d) to "two (2) years" shall be deemed for all purposes hereof to be references to such changed period and (ii) all corresponding references in the Warrants shall be deemed for all purposes hereof to be references to such changed period, provided that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws. As soon as practicable after the Company has knowledge of the effectiveness of any such amendment to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), unless such changes would otherwise be prohibited by, or would otherwise cause a violation of, the then-applicable securities law, the Company shall provide to the Warrant Agent an Officer's Certificate and Opinion of Counsel informing the Warrant Agent of the effectiveness of such amendment and the effectiveness of the foregoing changes to Sections 6(c) and 6(d) and the Warrants. The provisions of this Section 6(f) will not be effective until such time as the Opinion of Counsel and Officer's Certificate have been received by the Warrant Agent hereunder. This Section 6(f) shall apply to successive amendments to Rule 144(k) (or any successor rule) changing the holding period thereunder. (h) The Warrant Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Warrant other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Agreement, and to examine the same to determine substantial compliance as to form with the express requirements hereof and thereof. (i) No service charge shall be charged to the Warrantholder for any exchange or registration of transfer of Warrants, but the Company may require payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection with the issue and delivery of Warrant Certificates in any name other than that of such Warrantholder. (j) All Warrants surrendered for the purpose of exercise, repurchase, exchange or registration of transfer, shall, if surrendered to the Company or any Warrant registrar, be surrendered to the Warrant Agent and promptly canceled by it, or if surrendered to the Warrant Agent, shall be promptly canceled by it, and no Warrants shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Warrant Agent shall dispose of canceled Warrants in accordance with its customary procedures. If the Company shall acquire any of the Warrants, such acquisition shall not operate as a redemption of satisfaction of the indebtedness represented by such Warrants unless and until the same are delivered to the Warrant Agent for cancellation. (k) During any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, Warrantholders (or holders of interests therein) and prospective purchasers designated by such Warrantholders (or such holders of interests therein) shall have the right to obtain from the Company upon request by such Warrantholders (or such holders of interests) or prospective purchasers the information that would be required by paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of securities eligible to be transferred pursuant to Rule 144A. In addition, if the Common Stock is eligible for sale pursuant to Rule 144A, the holders of the shares of Common Stock issuable upon exercise of the Warrants and prospective purchasers designated by such holders shall have the right to obtain from the Company upon request by such holder or prospective purchasers, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the information required by paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such shares of Common Stock. SECTION 7. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates. Upon receipt by the Company and the Warrant Agent (or any agent of the Company or the Warrant Agent, if requested by the Company) of evidence satisfactory to them of the loss, theft, destruction, defacement, or mutilation of any Warrant Certificate and of indemnity satisfactory to them and, in the case of mutilation or defacement, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser or holder in due course, the Company shall execute, and an authorized signatory of the Warrant Agent shall manually countersign and make available for delivery, in exchange for or in lieu of the lost, stolen, destroyed, defaced or mutilated Warrant Certificate, a new Warrant Certificate representing a like number of Warrants, bearing a number or other distinguishing symbol not contemporaneously outstanding. Every substitute Warrant Certificate executed and delivered pursuant to this Section 7 in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of (but shall be subject to all the limitations of rights set forth in) this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 7 are exclusive with respect to the replacement of lost, stolen, destroyed, defaced or mutilated Warrant Certificates and shall preclude (to the extent lawful) any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement of lost, stolen, destroyed, defaced or mutilated Warrant Certificates. The Warrant Agent is hereby authorized to countersign in accordance with the provisions of this Agreement and make available for delivery the new Warrant Certificates required pursuant to the provisions of this Section 7. SECTION 8. Offices for Exercise, Etc. So long as any of the Warrants remain outstanding, the Company shall designate and maintain in the Borough of Manhattan, the City of New York: (a) an office or agency where the Warrant Certificates may be presented for exercise, (b) an office or agency where the Warrant Certificates may be presented for registration of transfer and for exchange (including the exchange of temporary Warrant Certificates for definitive Warrant Certificates pursuant to Section 5(c) hereof), and (c) an office or agency where notices and demands to or upon the Company in respect of the Warrants or of this Agreement may be served. The Company may from time to time change or rescind such designation, as it may deem desirable or expedient; provided, however, that an office or agency shall at all times be maintained in the Borough of Manhattan, City of New York, as provided in the first sentence of this Section 8. In addition to such office or offices or agency or agencies, the Company may from time to time designate and maintain one or more additional offices or agencies within or outside the Borough of Manhattan, City of New York, where Warrant Certificates may be presented for exercise or for registration of transfer or for exchange, and the Company may from time to time change or rescind such designation, as it may deem desirable or expedient. The Company will give to the Warrant Agent written notice of the location of any such office or agency and of any change of location thereof. The Company hereby designates the Warrant Agent's Corporate Office, as the initial agency maintained for each such purpose. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notice may be served at the Corporate Office and the Company appoints the Warrant Agent as its agent to receive all such presentations, surrenders, notices and demands. SECTION 9. Duration of Warrants; Early Termination of Warrants. (a) The Warrants shall, subject to their earlier termination described below in Section 9(b), expire at 5:00 p.m., New York City time, on August 28, 2006 (such date, the "Expiration Date"). Each Warrant may be exercised on any Business Day on or prior to the close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date (as defined below) if applicable, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. (b) With respect to any Warrant, if at any time prior to the Expiration Date, the One-Year Warrant with which such Warrant comprises a Unit expires or terminates pursuant to the terms of the One-Year Warrant Agreement without having been exercised pursuant to the terms thereof (the date of such expiration or termination, the "Termination Date") then such Warrant shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. SECTION 10. Exercise, Exercise Price, Settlement and Delivery; Separation of Warrants. (a) Warrants may be exercised at any time during the period commencing on the Separation Date and ending at 5:00 p.m., New York City time, on the Expiration Date by (i) surrendering, at any office or agency maintained for that purpose by the Company pursuant to Section 8 (each a "Warrant Exercise Office"), the Warrant Certificate evidencing such Warrants with the exercise form appended to the Warrant Certificate (the "Exercise Form") duly completed and signed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, and in the case of a transfer, such signature shall be guaranteed by an eligible guarantor institution, (ii) sending copies of such Exercise Form via facsimile to the Company, attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600), (iii) paying in full the Exercise Price for each such Warrant exercised and any other amounts required to be paid pursuant to Section 10(b) hereof, (iv) except in the event of a Cashless Exercise (as defined in Section 10(b)) or in the event of the exercise of a Warrant that has been transferred pursuant to a registration statement that has been declared effective under the Securities Act, and which was effective at the time of such transfer, furnishing to the Company and the Warrant Agent a signed letter containing certain representations and agreements relating to the restrictions on transfer set forth in Exhibit B hereto and an opinion of counsel if the Company so requests, and (v) providing such additional documentation or certifications as the Company and/or the Warrant Agent may reasonably request. (b) Simultaneously with the exercise of each Warrant, payment in full of the Exercise Price shall be made: (i) in cash or by certified or official bank check to be delivered to the office or agency where the Warrant Certificate is being surrendered; (ii) by tendering a principal amount of Notes in integral multiples of $1,000, including any accrued but unpaid interest thereon up to, but not including, the Exercise Date, equal to, together with any payment of cash pursuant to Section 10(b)(i) above, the Exercise Price; or (iii) solely by the surrender of the applicable Warrant Certificate, and without the payment of the Exercise Price in cash, for such number of shares of Common Stock equal to the product of (1) the number of shares of Common Stock for which such Warrant is exercisable upon payment of the Exercise Price in cash as of the date of exercise and (2) the Cashless Exercise Ratio (such exercise, a "Cashless Exercise"). For purposes of this Agreement, the "Cashless Exercise Ratio" shall equal a fraction, the numerator of which is the excess of the Closing Price per share of the Common Stock on the last Trading Day before the Exercise Date (determined as set forth in Section 10(c)) over the Exercise Price Per Share (as defined below) as of the last Trading Day before the Exercise Date and the denominator of which is the Closing Price per share of the Common Stock on the last Trading Day before the Exercise Date. Upon surrender of a Warrant Certificate representing more than one Warrant in connection with the holder's option to elect a Cashless Exercise, the number of shares of Common Stock deliverable upon a Cashless Exercise shall be equal to the number of shares of Common Stock for which such Warrants are exercisable (or if only a portion of such Warrants are being exercised, such number of shares of Common Stock issuable upon exercise of the Warrants that the holder specifies are to be exercised pursuant to a Cashless Exercise) upon payment of the Exercise Price in cash as of the date of exercise multiplied by the Cashless Exercise Ratio. In accordance with Section 10(e) hereof and subject to Section 16 hereof, if any holder exercises less than all of the Warrants evidenced by a Warrant Certificate, a new Warrant Certificate will be issued to such holders for the remaining number of Warrants. All provisions of this Agreement shall be applicable with respect to an exercise of a Warrant Certificate pursuant to a Cashless Exercise for less than the full number of Warrants represented thereby. "Exercise Price Per Share" means with respect to the Common Stock the Exercise Price divided by the number of shares of Common Stock for which a Warrant is then exercisable (without giving effect to the Cashless Exercise option). No payment or adjustment shall be made on account of any dividends on the shares of Common Stock issued upon exercise of a Warrant. (c) Upon such surrender of a Warrant Certificate, payment and collection of the Exercise Price at any Warrant Exercise Office (other than the Corporate Office), delivery of the letter and opinion of counsel referenced in Section 10(a), if required, and delivery of such additional documentation or certifications as the Company and/or the Warrant Agent may reasonably request, such Warrant Certificate and payment shall be promptly delivered to the Warrant Agent. The "Exercise Date" for a Warrant shall be the date when all of the applicable items referred to in the first sentence of paragraphs (a) and (b) of this Section 10 are received by the Warrant Agent, the Company and Latham & Watkins, at or prior to 11:00 a.m., New York City time, on a Business Day and the exercise of the Warrants will be effective as of such Exercise Date. If any items referred to in the first sentence of such paragraphs (a) and (b) are received after 11:00 a.m., New York City time, on a Business Day, the exercise of the Warrants to which such item relates will be effective on the next succeeding Business Day. Notwithstanding the foregoing, in the case of an exercise of Warrants on the Expiration Date or the Termination Date, if applicable, if all of the items referred to in the first sentence of paragraphs (a) and (b) are received by the Warrant Agent, the Company and Latham & Watkins, as applicable, at or prior to 5:00 p.m., New York City time, on such Expiration Date or Termination Date, the exercise of the Warrants to which such items relate will be effective on the Expiration Date or the Termination Date, if applicable. For purposes of determining satisfaction of the requirement set forth above with respect to the Exercise Date for any Warrant, any facsimile required to be sent shall be deemed to have been received on a given day if such facsimile was sent before 11:00 a.m., New York City time, on such date (or 5:00 p.m., New York City time, if such date is the Expiration Date or the Termination Date), to the number listed above (unless a different number is specified in a notice filed with the Warrant Agent and mailed by the Warrant Agent at the Company's expense to each holder of Warrants at such holder's address appearing on the Warrant register) and confirmation of the transmission of such facsimile is obtained. (d) Upon the exercise of a Warrant in accordance with the terms hereof, the receipt of a Warrant Certificate and payment of the Exercise Price (or election of the Cashless Exercise option), the Warrant Agent shall: (i) except to the extent exercise of the Warrant has been effected through Cashless Exercise, cause an amount equal to the Exercise Price to be paid to the Company by crediting the same to the account designated by the Company in writing to the Warrant Agent for that purpose; (ii) promptly advise the Company by telephone of the amount so deposited to the Company's account and promptly confirm such telephonic advice in writing; and (iii) as soon as practicable, advise the Company in writing of the number of Warrants exercised in accordance with the terms and conditions of this Agreement and the Warrant Certificates, the instructions of each exercising holder of the Warrant Certificates with respect to delivery of the shares of Common Stock to which such holder is entitled upon such exercise, and such other information as the Company shall reasonably request. (e) Subject to Section 6 hereof, the Company shall use its reasonable best efforts to issue or cause to be issued to or upon the written order of the registered holder of the Warrant Certificate evidencing such exercised Warrant or Warrants, the shares of Common Stock to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder pursuant to the Exercise Form, as appended to the Warrant Certificate, within three (3) Business Days of such Exercise Date, and in any event, shall issue or caused to be issued such shares within ten (10) Business Days of such Exercise Date. Such shares of Common Stock shall be deemed to have been issued and any persons who are designated to be named therein shall be deemed to have become the holder of record of such shares of Common Stock as of the close of business on the Exercise Date. After such exercise of any Warrant or Warrants, the Company shall also issue or cause to be issued to or upon the written order of the registered holder of such Warrant Certificate, a new Warrant Certificate, countersigned by the Warrant Agent pursuant to written instruction, evidencing the number of Warrants, if any, remaining unexercised unless such Warrants shall have expired. (f) The Warrants and the One-Year Warrants shall not be separately transferable prior to the Separation Date. The "Separation Date," with respect to any Warrant, shall be the date upon which the One-Year Warrant with which such Warrant comprises a Unit shall have been exercised in accordance with its terms and the terms of the One-Year Warrant Agreement. In connection with the exercise of such One-Year Warrant, the Warrant Certificate representing the Warrant with which such One-Year Warrant comprised a Unit shall be surrendered to the Warrant Exercise Office. Unless simultaneously exercised, as soon as practicable after the exercise of such One-Year Warrant, the Company shall issue, or cause to be issued to or upon the written order of the registered holder of the Warrant Certificate, a new Warrant Certificate representing such separated Warrant, which does not bear the Unit Legend described in Section 6(e) hereof. If fewer than all Warrants represented by a Warrant Certificate shall be so separated, the Company shall issue, or cause to be issued to or upon the written order of the registered holder of such Warrant Certificate, a new Warrant Certificate representing the remaining number of unseparated Warrants, which Warrant Certificate shall bear the Unit Legend contained in Section 6(e) hereof. SECTION 11. Cancellation of Warrant Certificates. Upon the termination of any Warrant pursuant to Section 9(b), the Warrant Certificate evidencing such Warrant shall thereupon be surrendered by the holder thereof to the Warrant Agent, and when so delivered, shall be canceled by the Warrant Agent and retired. The Warrant Agent shall cancel all Warrant Certificates properly surrendered for exchange, substitution, transfer or exercise. The Warrant Agent shall dispose of such canceled Warrant Certificates in accordance with its customary procedures. SECTION 12. Adjustment of Exercise Price and Number of Shares Issuable. The Exercise Price, the number of Shares issuable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 12. (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Exercise Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Exercise Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12(h)) fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 12(a) is declared but not so paid or made, the Exercise Price shall again be adjusted to the Exercise Price which would then be in effect if such dividend or distribution had not been declared. (b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Exercise Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Exercise Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for the determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price (as defined in Section 12(h)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price shall be adjusted so that the same shall equal the price determined by multiplying the Exercise Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares that the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such Current Market Price, and of which the denominator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Exercise Price shall be readjusted to the Exercise Price that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 12(a) applies) or evidences of its indebtedness or other assets (including securities, but excluding (1) any rights or warrants referred to in Section 12(c) and (2) dividends and distributions paid exclusively in cash (except as set forth in Section 12(e) and (f), (the foregoing hereinafter in this Section 12(d) called the "Securities")), unless the Company elects to reserve such Securities for distribution to the Warrantholders upon conversion of the Warrants so that any such holder converting Warrants will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Warrants into Common Stock immediately prior to the Record Date (as defined in Section 12(h) for such distribution of the Securities) then, in each such case, the Exercise Price shall be reduced so that the same shall be equal to the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on the Record Date (as defined in Section 12(h)) with respect to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in Section 12(h)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Warrantholder shall have the right to receive upon conversion of a Warrant (or any portion thereof) the amount of Securities such holder would have received had such holder converted such Warrant (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 12(h) to the extent possible, unless the Board of Directors in a Board Resolution reasonably determines that determining the fair market value during the Reference Period would not be in the best interest of the Warrantholder. In the event that the Company implements a new stockholder rights plan, such rights plan shall provide that upon exercise of the Warrants the holders will receive, in addition to the Common Stock issuable upon such exercise, the rights issued under such rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of exercise). Any distribution of rights or warrants pursuant to a stockholder rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants for the purposes of this Section 12(d). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"), (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable, and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 12(d) (and no adjustment to the Exercise Price under this Section 12(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Exercise Price under this Section 12(d), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Exercise Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Exercise Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12(d) and Sections 12(a) and (c), any dividend or distribution to which this Section 12(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock or rights or warrants to which Section 12(c) applies (and any Exercise Price reduction required by this Section 12(e) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Exercise Price reduction required by Sections 12(a) and (c) with respect to such dividend or distribution shall then be made, except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "Record Date fixed for such determination" and "Record Date" within the meaning of Section 12(a) and as "the date fixed for the determination of stockholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 12(c) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 12(a). (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 13 applies or as part of a distribution referred to in Section 12(d)), in an aggregate amount that, combined together with (1) the aggregate amount of any other such distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12(e) has been made, and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 12(f) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 12(h)) on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such date, the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on such Record Date by a fraction (i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the Record Date and (ii) the denominator of which shall be equal to the Current Market Price on such date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Warrantholder shall have the right to receive upon exercise of a Warrant (or any portion thereof) the amount of cash such holder would have received had such holder exercised such Warrant (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such dividend or distribution had not been declared. (f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (1) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this Section 12(f) has been made and (2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to Section 12(e) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 12(h)) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Exercise Price shall be adjusted so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to close of business on the date of the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction (if any) to become effective immediately prior to the opening of business on the day following the Expiration Time. .In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such tender offer had not been made. If the application of this Section 12(f) to any tender offer would result in an increase in the Exercise Price, no adjustment shall be made for such tender offer under this Section 12(f). (g) In case of a tender or exchange offer made by a person other than the Company or any Subsidiary for an amount that increases the offeror's ownership of Common Stock to more than 25% of the Common Stock outstanding and shall involve the payment by such person of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors in good faith, whose determination shall be conclusive, and described in a resolution of the Board of Directors) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of the Expiration Time the Board of Directors is not recommending rejection of the offer, the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that such person is obligated to purchase shares pursuant to any such tender or exchange offer, but such person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 12(g) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Section 13. (h) For purposes of this Section 12, the following terms shall have the meaning indicated: (i) "Closing Price" with respect to any securities on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in each case on the Nasdaq National Market or New York Stock Exchange, as applicable, or, if such security is not listed or admitted to trading on such National Market or Exchange, on the principal national security exchange or quotation system on which such security is quoted or listed or admitted to trading, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of such security on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or if not so available, in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or a price determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution. (ii) "Current Market Price" shall mean the average of the daily Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to the date in question; provided, however, that (1) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) or (g) occurs during such ten (10) consecutive Trading Days, the Closing Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the same fraction by which the Exercise Price is so required to be adjusted as a result of such other event, (2) if the "ex" date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) or (g) occurs on or after the "ex" date for the issuance or distribution requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Exercise Price is so required to be adjusted as a result of such other event, and (3) if the "ex" date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (1) or (2) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12(d), (f) or (g), whose determination shall be conclusive and described in a Board Resolution) of the evidences of indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the close of business on the day before such "ex" date. For purposes of any computation under Sections 12(f) or (g), the Current Market Price of the Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of Common Stock for such day and the next two succeeding Trading Days; provided, however, that if the "ex" date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) and (g) occurs on or after the Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Exercise Price is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (3) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such offer. Notwithstanding the foregoing, whenever successive adjustments to the Exercise Price are called for pursuant to this Section 12, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 12 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. (iii) "Fair market value" shall mean the amount which a willing buyer would pay a willing seller in an arm's length transaction. (iv) "Record Date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). (v) "Trading Day" shall mean (x) if the applicable security is listed or admitted for trading on the New York Stock Exchange or another national security exchange, a day on which the New York Stock Exchange or such other national security exchange, as applicable, is open for business or (y) if the applicable security is quoted on the Nasdaq National Market, a day on which trades may be made thereon or (z) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (i) The Company may make such reductions in the Exercise Price, in addition to those required by Sections 12(a), (b), (c), (d), (e), (f) and (g), as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the Exercise Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during such period and the Board of Directors shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive and described in a Board Resolution. Whenever the Exercise Price is reduced pursuant to the preceding sentence, the Company shall mail to the holder of each Warrant at his last address appearing on the Warrant register provided for in Section 8 a notice of the reduction at least fifteen (15) days prior to the date the reduced Exercise Price is to take effect, and such notice shall state the reduced Exercise Price and the period during which it will be in effect. (j) No adjustment in the Exercise Price shall be required under this Section 12 unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Section 12(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 12 shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of the Common Stock. (k) Whenever the Exercise Price is adjusted as provided in this Section 12, the Company shall promptly file with the Warrant Agent an Officer's Certificate setting forth the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. The Warrant Agent shall be fully protected in relying on any such certificate and on any adjustment therein contained and shall not be deemed to have knowledge of such adjustment unless and until it shall have received such certificate. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Exercise Price setting forth the adjusted Exercise Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Exercise Price to the holder of each Warrant at his last address appearing on the Warrant register provided for in Section 8, within twenty (20) days of the effective date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such adjustment. (l) In any case in which this Section 12 provides that an adjustment shall become effective immediately after a Record Date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Warrant exercised after such Record Date and before the occurrence of such event the additional shares of Common Stock issuable upon such exercise by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 17. (m) For purposes of this Section 12, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (n) Upon each adjustment of the Exercise Price pursuant to this Section 12, each Warrant shall thereupon evidence the right to purchase that number of shares of Common Stock (calculated to the nearest hundredth of a share) obtained by multiplying the number of shares of Common Stock purchasable immediately prior to such adjustment upon exercise of the Warrant by the Exercise Price in effect immediately prior to such adjustment and dividing the product so obtained by the Exercise Price in effect immediately after such adjustment. The adjustment pursuant to this Section 12(o) to the number of shares of Common Stock purchasable upon exercise of a Warrant shall be made each time an adjustment of the Exercise Price is made pursuant to this Section 12 (or would be made but for Section 12(j) hereof). SECTION 13. Effect of Reclassification, Consolidation, Merger or Sale. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of this Section 13 the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall cause notice of the execution of such supplemental warrant agreement to be mailed to each holder of Warrants, at such holder's address appearing on the Warrant register provided for in Section 6 of this Warrant agreement, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental warrant agreement. The above provisions of this Section shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 13 applies to any event or occurrence, Section 12 shall not apply. SECTION 14. Taxes on Shares Issued. The issue of stock certificates upon exercise of Warrants shall be made without charge to the exercising Warrantholder for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the holder of any Warrant exercised, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 15. Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock. The Company shall reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock for issuance upon exercise of the Warrants from time to time as such Warrants are presented for exercise. Before taking any action which would cause an adjustment reducing the Exercise Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Warrants, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Exercise Price. The Company covenants that all shares of Common Stock issued upon exercise of Warrants will be duly and validly issued and fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof. The Company further covenants that if at any time the Common Stock shall be listed on the New York Stock Exchange, Nasdaq National Market or any other national securities exchange or automated quotation system the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Warrants. SECTION 16. Fractional Warrants and Fractional Shares (a) Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. (b) Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised, as herein provided, an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this Section 16(b), the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. SECTION 17. Notice to Warrantholders Prior to Certain Actions. In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Exercise Price pursuant to Section 12; or (b) the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants; or (c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company; the Company shall cause to be filed with the Warrant Agent and mailed by the Warrant Agent at the Company's expense to each holder of Warrants at such holder's address appearing on the Warrant register as promptly as possible but in any event at least fifteen days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Warrant Agent under the provisions of Section 21. In case at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, and in case at that time any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor warrant agent or in the name of the successor warrant agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name, and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name, and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. SECTION 19. Warrant Agent. The Warrant Agent undertakes the duties and obligations expressly imposed by this Agreement upon the following terms and conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant Certificates except as herein otherwise provided. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. (c) The Warrant Agent may consult at any time with counsel of its own selection (who may be counsel for the Company) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the Company and the Warrant Agent for all services rendered by the Warrant Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in connection with the execution and administration of its duties under this Agreement and to fully indemnify the Warrant Agent and save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel fees and expenses, for anything done or omitted by the Warrant Agent in the execution and administration of its duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement.. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with security and indemnity satisfactory to it for any costs and expenses which may be incurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear. (g) The Warrant Agent, and any stockholder, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct. (i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. SECTION 20. Disposition of Proceeds of Exercise of Warrants. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys or Notes received by the Warrant Agent on the purchase of shares of Common Stock upon the exercise of Warrants. SECTION 21. Change of Warrant Agent. If the Warrant Agent shall become incapable of acting as Warrant Agent, the Company shall appoint a successor. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such incapacity by the incapacitated Warrant Agent or by the registered holder of a Warrant Certificate, then the Warrant Agent or registered holder of any Warrant Certificate may apply, at the reasonable expense of the Company, to any court of competent jurisdiction for the appointment of a successor to the incapacitated Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor warrant agent whether appointed by the Company or by such a court, shall be a bank or trust company, in good standing, incorporated under the laws of the State of New York or of the United States of America, and having its principal office in the Borough of Manhattan in New York, New York, and must have at the time of its appointment as Warrant Agent a combined capital and surplus of at least one hundred million dollars. After appointment the successor warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the former Warrant Agent shall, upon payment of all amounts owed to it hereunder, deliver and transfer to the successor warrant agent any property at the time held by it hereunder and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor warrant agent as the case may be. SECTION 22. Notices to Company and Warrant Agent. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by the registered holder of any Warrant Certificate to or on the Company shall be sufficiently given or made if sent by mail, first class or registered, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows: TiVo Inc. 2160 Gold Street Alviso, CA 95002 Attention: Chief Financial Officer In case the Company shall fail to maintain such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the principal corporate trust office of the Warrant Agent. Any notice pursuant to this Agreement to be given by the Company or by the registered holder of any Warrant Certificate to the Warrant Agent shall be sufficiently given if sent by first-class mail, postage pre-paid, addressed (until another address is filed in writing by the Warrant Agent with the Company) to the Warrant Agent as follows: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration SECTION 23. Supplements and Amendments. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of Warrant Certificates; provided, however, that the written consent of the holders of Warrant Certificates representing a majority of the Warrants then outstanding (but not including any Warrants then held by the Company or its Affiliates) is required to amend or supplement the Warrant Agreement in any manner that would have a material adverse effect on the interests of the Warrantholders and provided further, that the consent of each holder of the Warrants affected is required for any amendment which would increase the Exercise Price or decrease the number of shares of Common Stock purchasable upon exercise of the Warrants, except, in any case, pursuant to the adjustments provided for in Section 12. Upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section, the Warrant Agent shall execute such supplement or amendment. Notwithstanding any other provision hereof, the Warrant Agent's consent must be obtained regarding any amendment or supplement pursuant to this Section 23 which alters the Warrant Agent's rights or duties. It shall not be necessary for the consent of the Warrantholders under this Section 23 to approve the particular form of any proposed supplemental warrant agreement, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 24. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 25. Termination. This Agreement shall terminate at the close of business on August 28, 2006. Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants have been exercised or terminated pursuant to Section 9(b). The provisions of Section 19 shall survive such termination. SECTION 26. Governing Law. THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. SECTION 27. Benefits of This Agreement. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company, the Warrant Agent and the registered holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. SECTION 28. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. TIVO INC. By: /s/ Michael Ramsay -------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney ---------------------------- Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer THE BANK OF NEW YORK, as Warrant Agent By: /s/ Michael Pitfick ---------------------------- Name: Michael Pitfick Title: Assistant Treasurer EXHIBIT A FORM OF WARRANT TIVO INC. No. CUSIP No. ------------------- ------------------- [THE FOLLOWING PARAGRAPHS SHALL APPEAR ON THE FACE OF EACH RESTRICTED WARRANT.] THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. [THE FOLLOWING PARAGRAPH SHALL APPEAR ON THE FACE OF EACH WARRANT THAT COMPRISES A PART OF A UNIT:] EXCEPT AS DESCRIBED IN THE NEXT SENTENCE, EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE ONE-YEAR WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE ONE-YEAR WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED. UPON THE EXERCISE OF THE ONE-YEAR WARRANTS TO WHICH ALL OR A PORTION OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE RELATE, SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS EXERCISED) MAY BE TRANSFERRED SEPARATELY AND THIS LEGEND SHALL BE REMOVED WITH RESPECT TO SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS EXERCISED). [THE COMPANY MAY, BUT IS NOT OBLIGATED TO INSTRUCT THE WARRANT AGENT TO PLACE THE FOLLOWING LEGEND ON ANY WARRANT HELD BY OR TRANSFERRED TO AN "AFFILIATE" (AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT):] THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. WARRANT REPRESENTING _________ WARRANTS TO PURCHASE COMMON STOCK This certifies that _________, or its registered assigns, is the registered owner of __________ Warrants, each expiring August 28, 2006 and each of which entitles the registered owner thereof (the "Warrantholder") to purchase at any time prior to the expiration hereof from TIVO INC., a Delaware corporation (the "Company"), 0.33 of one share of Common Stock (the "Common Stock"), $0.001 par value per share, of the Company at the purchase price of $7.85 per share of Common Stock (the "Exercise Price"), subject to adjustment as provided in the Warrant Agreement hereinafter referred to. The Warrants evidenced by this Warrant are issued under and in accordance with the Warrant Agreement, dated as of August 28, 2001 (the "Warrant Agreement"), between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"), and the Registration Rights Agreement, dated of even date therewith (the "Registration Rights Agreement"), among the Company and the initial purchasers of the Warrants, and are subject to the terms and provisions contained therein, to all of which terms and provisions the holder of this Warrant consents by acceptance of this Warrant and which Warrant Agreement and Registration Rights Agreement are hereby incorporated by reference in and made a part of this Warrant. Until the Separation Date, any Warrants represented by this Certificate shall be transferable or exchangeable only as a Unit with a like number of One-Year Warrants (as defined in the Warrant Agreement). The Separation Date, with respect to any Warrant shall be the date upon which such One-Year Warrant with which such Warrant comprises a Unit shall have been exercised in accordance with its terms and the terms of the One-Year Warrant Agreement (as defined in the Warrant Agreement). Reference is hereby made to the Warrant Agreement and the Registration Rights Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Warrantholders. The summary of the terms of the Warrant Agreement and the Registration Rights Agreement contained in this Warrant is qualified in its entirety by express reference to such agreements. All capitalized terms used but not defined in this Warrant shall have the meanings assigned to them in the Warrant Agreement. As provided in the Warrant Agreement, and subject to the terms and conditions set forth therein including early termination of the Warrants, the Warrants shall be exercisable, unless earlier terminated as described below, at any time during the period commencing on the Separation Date and ending at 5:00 p.m., New York time, on August 28, 2006 (the "Expiration Date"). This Warrant may be exercised on any Business Day on or prior to close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. With respect to any Warrant, if at any time prior to the Expiration Date, the One-Year Warrant with which such Warrant comprises a Unit expires or terminates pursuant to the terms of the One-Year Warrant Agreement without having been exercised pursuant to the terms thereof (the date of such expiration or termination, the "Termination Date") then such Warrant shall terminate if not exercised before 5:00 p.m., New York City time, on the Termination Date. The Exercise Price and the number of shares of Common Stock purchasable upon exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of Section 13 of the Warrant Agreement the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12 of the Warrant Agreement. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall not be required to issue fractions of shares of Common Sock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this calculation, the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. The Company covenants that it will at all times through 5:00 p.m., New York time, on the Expiration Date (or, if the Expiration Date shall not be a Business Day, then on the next-succeeding Business Day) reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury or a combination thereof of Common Stock, solely for the purpose of issue upon exercise of Warrants as herein provided, sufficient shares of Common Stock, for issuance upon exercise of, the Warrants from time to time as such Warrants are presented for exercise. The Company covenants that all shares of Common Stock issued upon exercise of Warrants shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof. The initial issuance of certificates of Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrantholders for any tax in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised, subject to the restrictions on transfer set forth herein and in the Warrant Agreement; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Subject to the terms and provisions of the Registration Rights Agreement, the Company shall file under the Securities Act a registration statement providing for the registration of all of the Warrants and the shares of Common Stock issuable upon exercise thereof. As provided in the Warrant Agreement and the Registration Rights Agreement, the Warrantholders have additional rights and duties with respect to the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants. A Warrantholder may be required to indemnify and hold the Company and certain other persons harmless in connection with written information furnished to the Company by or on behalf of such Warrantholder specifically for use in any registration statement, or any preliminary or final or summary Prospectus contained therein or any amendment or supplement thereto. By its acceptance of any Warrant represented by a Warrant Certificate bearing a restrictive legend, each holder and beneficial owner of such a Warrant acknowledges the restrictions on transfer of such a Warrant set forth in such legend and agrees that it will transfer such a Warrant only in accordance with such legend. Subject to the restrictions on transfer set forth herein and in the Warrant Agreement, this Warrant and all rights hereunder are transferable by the registered Warrantholder hereof, in whole or in part, on the Warrant register, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached "Form of Assignment," by the registered Warrantholder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, the Company will issue and the Warrant Agent will countersign and deliver to such Warrantholder a new Warrant Certificate or Warrant Certificates with respect to any portion not so transferred. Each taker and holder of this Warrant, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, the Company and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the holder of this Warrant shall not be entitled, as such, to any rights of a stockholder of the Company, including, without limitation, the right to vote or to consent to any action of the stockholders of the Company, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders of the Company, and shall not be entitled to receive any notice of any proceedings of the Company except as provided in the Warrant Agreement. Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. This Warrant shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. TIVO INC. By: -------------------------------- Name: Title: Attest: By: ----------------------- Name: Title: Countersigned: THE BANK OF NEW YORK as Warrant Agent By: ------------------------- Authorized Signatory Dated: EXERCISE FORM (To be executed only upon exercise of Warrant) The undersigned registered holder of a Warrant Certificate representing __________ Warrants irrevocably elects to exercise __________ of the Warrants represented by the Warrant Certificate for the purchase of 0.33 of one share (subject to adjustment as set forth in the Warrant Agreement) of Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and herewith |_| makes payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), |_| tenders $_______ principal amount of the Company's 7% Convertible Senior Notes due 2006, plus payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), |_| elects to make a "Cashless Exercise" of such Warrants as provided in Section 10(b) of the Warrant Agreement, all at the exercise price and on the terms and conditions specified in the Warrant and the Warrant Agreement therein referred to, and surrenders all of its right, title and interest in the number of Warrants exercised herein to TiVo Inc., and directs that the shares of Common Stock or other securities or property deliverable upon the exercise of such Warrants, and any Warrant Certificate or interests in the Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. Dated: ------------------------------------ (Signature of Warrantholder) ------------------------------------ (Street Address) ------------------------------------ (City) (State) (Zip Code) Signature Guaranteed By: ------------------------------------ This form must be delivered to the Warrant Agent at the Corporate Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM: Social Security Number or identifying number:______________________ Name: --------------------------------------------------------------- Street Address: ----------------------------------------------------- City, State and Zip Code: ------------------------------------------- IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER: ----------------------------------------------------- ACCOUNT NAME: ------------------------------------------------------- ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number:____________________ Name: ------------------------------------------------------------- Street Address: --------------------------------------------------- City, State and Zip Code: ----------------------------------------- FORM OF ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below:
Social Security Number Number or Other Name of Assignees Address of Warrants Identifying Number
and does hereby irrevocably constitute and appoint ____________________, the undersigned's attorney, to make such transfer on the books of TiVo Inc. maintained for the purpose, with full power of substitution in the premises. In connection with any transfer occurring within two years (or such longer or shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Warrant (unless such Warrant is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Warrant is being transferred: |_| *To TiVo Inc. or a subsidiary thereof; or |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Warrant is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): |_| *The transferee is an Affiliate of the Company. Dated: ------------------------------------ (Signature of Warrantholder) ------------------------------------ (Street Address) ------------------------------------ (City) (State) (Zip Code) Signature Guaranteed By: ------------------------------------ EXHIBIT B FORM OF TRANSFER LETTER OF REPRESENTATIONS (To be delivered upon exercise of Warrants or upon certain transfers of Warrants WITHOUT EFFECTIVE REGISTRATION STATEMENT) We are delivering this letter in connection with (i) the exercise of Warrants (as defined in the Warrant Agreement, dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (the "Company") and The Bank of New York, a New York banking corporation (the "Warrant Agent")) by us for shares of common stock, par value $.001 per share, of the Company (the "Common Stock") or (ii) the sale or transfer to us of Warrants, other than pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended (the "Securities Act"). The Warrants and the Common Stock are sometimes referred to herein as the "Securities." We hereby confirm that: (i) we are an "accredited investor" within the meaning of Rule 501(a)(1),(2), (3), (5), (6) or (7) under the Securities Act; (ii) any purchase or receipt of the Securities by us will be for investment purposes and for our own account, not as a nominee or agent; (iii) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing or receiving the Securities ; (iii) we do not have need for liquidity in our investment in the Securities , we have the ability to bear the economic risks of our investment in the Securities for an indefinite period of time and we are able to afford the complete loss of our investment in the Securities; (iv) we are not acquiring the Securities with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction, and we have no present intention of selling, granting any participation in, or otherwise distributing the same; (v) we have had access to such information regarding the Company necessary in order for us to make an informed decision and any such information which we have requested have been made available for us or our attorney, accountant, or advisor; and (vi) we or our attorney, accountant, or advisor have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the business, management and financial affairs of the Company and the terms and conditions of the acquisition by us of the Securities and all such questions have been answered to our full satisfaction, and we have acquired sufficient information about the Company to make an informed and knowledgeable decision to acquire the Securities. We understand that the Securities have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Securities, that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction meeting the requirements of Rule 144 under the Securities Act, outside the United States in a transaction meeting the requirements of Rule 904 under the Securities Act, or in accordance with another exemption from the registration requirements of the Securities Act, (ii) to the Company or (iii) pursuant to an effective registration statement, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction. We agree that we will furnish the Company, the Warrant Agent and, if exercising Warrants, the Company's transfer agent an opinion of counsel, if the Company so requests, that the foregoing restrictions on transfer have been complied with. We understand that the Warrant Agent will not be required to accept for registration of transfer or exercise any Warrants, except upon presentation of evidence satisfactory to the Company, including an opinion of counsel if the Company so requests, that the foregoing restrictions on transfer or exercise have been complied with. We acknowledge that the Company and others will rely upon our confirmations, acknowledgements and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete. ------------------------------ (Name) By:____________________________ Name: Title: Address: EX-11 13 ex11.txt Exhibit 11 ---------- [Five-Year Warrant Agreement] TiVo Inc. and The Bank of New York as Warrant Agent WARRANT AGREEMENT DATED as of August 28, 2001
TABLE OF CONTENTS Page Number SECTION 1. Definitions.........................................................................................1 SECTION 2. Appointment of Warrant Agent........................................................................4 SECTION 3. Form of Warrant Certificates........................................................................4 SECTION 4. Execution of Warrant Certificates...................................................................4 SECTION 5. Registration, Countersignature and Issuance of Temporary Warrant Certificates.......................5 SECTION 6. Registration of Transfers and Exchanges.............................................................6 SECTION 7. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates.................................13 SECTION 8. Offices for Exercise, Etc..........................................................................13 SECTION 9. Duration of Warrants; Early Termination of Warrants................................................14 SECTION 10. Exercise, Exercise Price, Settlement and Delivery..................................................14 SECTION 11. Cancellation of Warrant Certificates...............................................................17 SECTION 12. Adjustment of Exercise Price and Number of Shares Issuable.........................................17 SECTION 13. Effect of Reclassification, Consolidation, Merger or Sale..........................................26 SECTION 14. Taxes on Shares Issued.............................................................................27 SECTION 15. Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock............................27 SECTION 16. Fractional Warrants and Fractional Shares..........................................................28 SECTION 17. Notice to Warrantholders Prior to Certain Actions..................................................28 SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent...........................................29 SECTION 19. Warrant Agent......................................................................................29 SECTION 20. Disposition of Proceeds of Exercise of Warrants....................................................31 SECTION 21. Change of Warrant Agent............................................................................31 SECTION 22. Notices to Company and Warrant Agent...............................................................31 SECTION 23. Supplements and Amendments.........................................................................32 SECTION 24. Successors.........................................................................................32 SECTION 25. Termination........................................................................................33 SECTION 26. Governing Law......................................................................................33 SECTION 27. Benefits of This Agreement.........................................................................33 SECTION 28. Counterparts.......................................................................................33 Exhibit A Form of Warrant.........................................................................................A-1 Exhibit B Form of Transfer Letter of Representations..............................................................B-1
WARRANT AGREEMENT ("Agreement") dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (together with any successor thereto, the "Company"), and The Bank of New York, a New York banking corporation, not in its individual capacity but solely as warrant agent (together with any successor warrant agent, the "Warrant Agent"). WHEREAS, the Company has entered into purchase or acquisition agreements with certain purchasers or acquirors (the "Purchasers"), in which the Company has agreed to issue and/or sell to the Purchasers (i) an aggregate principal amount of $51,750,000 of its 7% Convertible Senior Notes due 2006 (the "Notes") to be issued under an Indenture dated as of August 28, 2001 between the Company and The Bank of New York, a New York banking corporation, as trustee (in such capacity, the "Trustee"), (ii) warrants (each a "Warrant," and collectively the "Warrants", and the certificates evidencing the Warrants hereinafter referred to as the "Warrant Certificates") to purchase 2,682,600 shares of the Company's common stock, par value $.001 per share (the "Common Stock"), (iii) and 4,064,542 units, each consisting of (a) one warrant to purchase one share of Common Stock and (b) one warrant to purchase 0.33 of one share of Common Stock. WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company to assist the Company in connection with the issuance, exchange, cancellation, replacement and exercise of the Warrants, and this Agreement sets forth, among other things, the terms and conditions on which the Warrants may be issued, exchanged, cancelled, replaced and exercised; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1 Definitions. The terms defined in this Section 1 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective meanings specified in this Section 1. The words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. The terms defined in this Section include the plural as well as the singular. Affiliate: The term "Affiliate" of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder. Board Resolution: The term "Board Resolution" means a copy of a resolution certified by the Secretary or any Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized committee thereof (to the extent permitted by applicable law), and to be in full force and effect on the date of such certification, and delivered to the Warrant Agent. Business Day: The term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York or the city in which the Corporate Office is located are authorized or obligated by law or executive order to close or be closed. Cashless Exercise. The term "Cashless Exercise" shall have the meaning specified in Section 10(b). Cashless Exercise Ratio: The term "Cashless Exercise Ratio" shall have the meaning specified in Section 10(b). Close of business: The term "close of business" means 5 p.m. (New York City time). Corporate Office: The term "Corporate Office," or other similar term, shall mean the office of the Warrant Agent maintained for the purpose of exchanging, transferring or exercising the Warrants, which office is, at the date as of which this Agreement is dated, located at 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Exchange Act: The term "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Exercise Date: The term "Exercise Date" shall have the meaning specified in Section 10(c). Exercise Form: The term "Exercise Form" shall have the meaning specified in Section 10(a). Exercise Price: The term "Exercise Price" shall mean the exercise price as specified in the form of the Warrant Certificate (herein called the "Exercise Price"), attached as Exhibit A hereto, subject to adjustment from time to time upon the occurrence of the events enumerated in Section 12. Exercise Price Per Share: The term "Exercise Price Per Share" shall have the meaning specified in Section 10(b). Expiration Time: The term "Expiration Time" shall have the meaning specified in Section 12(f). Individual Accredited Investor: The term "Individual Accredited Investor" shall mean an individual "accredited investor" as defined in Rule 501(a)(5) or (6) of Regulation D under the Securities Act. Institutional Accredited Investor: The term "Institutional Accredited Investor" shall mean an institutional "accredited investor" as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act. Officer's Certificate: The term "Officer's Certificate", when used with respect to the Company, shall mean a certificate signed by one of the President, the Chief Executive Officer, Chief Financial Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word added before or after the title "Vice President"), that is delivered to the Warrant Agent. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, which is delivered to the Warrant Agent. Person: The term "person" shall mean an individual, a corporation, a limited liability company, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof. Registration Rights Agreement: The term "Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of August 28, 2001, between the Company and the Purchasers, as such agreement may be amended from time to time. Restricted Securities: The term "Restricted Securities" has the meaning specified in Section 6(c). Rule 144A: The term "Rule 144A" shall mean Rule 144A as promulgated under the Securities Act. Securities Act: The term "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Subsidiary: The term "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. Trading Day: The term "Trading Day" has the meaning specified in Section 12(h)(v). Warrant Exercise Office. The term "Warrant Exercise Office" shall have the meaning specified in Section 10(a). Warrantholder or holder: The terms "Warrantholder" or "holder" as applied to any Warrant, or other similar terms (but excluding the term "beneficial holder"), shall mean any person in whose name at the time a particular Warrant is registered on the Warrant register. Warrant register: The term "Warrant register" shall mean the register maintained in the Corporate Office and in any other office or agency of the Company as designated herein, in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Warrants and transfers of Warrants. SECTION 2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. SECTION 3. Form of Warrant Certificates. The Warrant Certificates may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Warrants may be listed or designated for issuance, or to conform to usage. The Warrants shall be substantially in the form set forth in Exhibit A, which exhibit is hereby incorporated in and expressly made a part of this Agreement. Each Warrant Certificate shall represent such of the outstanding Warrants as shall be specified thereon. Warrants will be issued in registered form as definitive Warrant Certificates. Each Warrant shall evidence the right, subject to the provisions of this Agreement and of the applicable Warrant Certificate, to purchase one share of Common Stock, subject to adjustment pursuant to the provisions of Section 12 hereof. SECTION 4. Execution of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be dated as of the date of countersignature thereof by the Warrant Agent pursuant to Section 5 either upon initial issuance or upon exchange, substitution or transfer, shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board or the Chief Executive Officer or the President or Executive or Senior Vice President or any Vice President (whether or not designated by a number or number of words added before or after the title "Vice President") of the Company, and shall be attested by the manual or facsimile signature of the Chief Financial Officer or Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary of the Company. In case any officer of the Company who shall have signed any of the Warrant Certificates shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned by the Warrant Agent pursuant to Section 5, or disposed of by the Company, such Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such person had not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such an officer. SECTION 5. Registration, Countersignature and Issuance of Temporary Warrant Certificates. (a) Registration and Countersignature. Warrant Certificates distributed as provided for herein shall be registered in the names of the record holders of the Warrant Certificates to whom they are to be distributed. The Company and the Warrant Agent may deem and treat the registered holder of a Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise or conversion thereof and any distribution to the holder thereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. (b) Countersignature and Delivery. Subject to the second paragraph of Section 4, Warrant Certificates shall be countersigned by manual signature and dated the date of countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned and dated. The Warrant Certificates shall be numbered and shall be registered. Upon the receipt by the Warrant Agent of a written order of the Company, which order shall be signed manually by, or bear the facsimile signature of, the Chairman of the Board, the Chief Executive Officer, the President , any Executive or Senior Vice President , or any Vice President (whether or not designated by a number or number of words added before or after the title "Vice President") and attested by the manual or facsimile signature of the Chief Financial Officer, Treasurer, Assistant Treasurer, Secretary or any Assistant Secretary of the Company, and shall specify the number of Warrants to be countersigned, the date of such Warrants and such other information as is necessary or as the Warrant Agent may reasonably request. Without any further action by the Company, the Warrant Agent is authorized, upon receipt from the Company at any time and from time to time of the Warrant Certificates, duly executed as provided in Section 4 hereof, to countersign the Warrant Certificates and make them available for delivery. Such countersignature shall be by a duly authorized signatory of the Warrant Agent (although it shall not be necessary for the same signatory to sign all Warrant Certificates). In case any authorized signatory of the Warrant Agent who shall have countersigned any of the Warrant Certificates shall cease to be such authorized signatory before the Warrant Certificate shall be disposed of by the Company, such Warrant Certificate nevertheless may be delivered or disposed of as though the person who countersigned such Warrant Certificate had not ceased to be such authorized signatory of the Warrant Agent; and any Warrant Certificate may be countersigned on behalf of the Warrant Agent by such persons as, at the actual time of countersignature of such Warrant Certificates, shall be the duly authorized signatories of the Warrant Agent, although at the time of the execution and delivery of this Agreement any such person is not such an authorized signatory. (c) Temporary Warrant Certificates. Pending the preparation of definitive Warrant Certificates, the Company may execute, and the Warrant Agent shall, upon written request of the Company, countersign and make available for delivery, temporary Warrant Certificates, which are printed, lithographed, typewritten or otherwise produced, substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. The Company will promptly execute and deliver to the Warrant Agent definitive Warrant Certificates. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at any office or agency maintained by the Company for that purpose pursuant to Section 8 hereof. Subject to the provisions of Section 6(h) hereof, such exchange shall be without charge to the holder. Upon surrender for cancellation of any one or more temporary Warrant Certificates, the Company shall execute, and the Warrant Agent shall countersign and deliver in exchange therefor, one or more definitive Warrant Certificates representing in the aggregate a like number of Warrants. Until so exchanged, the holder of a temporary Warrant Certificate shall in all respects be entitled to the same benefits under this Agreement as a holder of a definitive Warrant Certificate. SECTION 6. Registration of Transfers and Exchanges. (a) The Warrant Agent shall from time to time register in the Warrant register the transfer of any outstanding Warrant Certificates, upon surrender thereof accompanied by a written instrument of transfer in the form of the assignment appearing at the end of the form of the Warrant Certificate attached as Exhibit A hereto, duly executed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney. Such Warrant register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Warrant Agent is hereby appointed "Warrant registrar" for the purpose of registering Warrants and transfers of Warrants as herein provided. Upon any such registration of transfer, a new Warrant Certificate of like tenor and representing in the aggregate a like number of Warrants shall be issued to the transferee and the surrendered Warrant Certificate shall be cancelled by the Warrant Agent. Warrant Certificates may be exchanged at the option of the holders thereof, when surrendered to the Warrant Agent at its Corporate Office, for another Warrant Certificate or other Warrant Certificates of like tenor and representing in the aggregate a like number of Warrants. Warrant Certificates surrendered for exchange, transfer, exercise or conversion shall be cancelled by the Warrant Agent. Warrant Certificates cancelled as provided in this Section 6 shall then be disposed of by the Warrant Agent in accordance with its customary procedures. Neither the Company nor the Warrant Agent shall be required to exchange or register a transfer of any of the Warrants surrendered for exercise or, if a portion of any Warrant is surrendered for exercise, such portion thereof surrendered for exercise. The Warrant Agent is hereby authorized to countersign, in accordance with the provisions of Section 5 and this Section 6, the new Warrant Certificates required pursuant to the provisions of this Section, and for the purpose of any distribution of Warrant Certificates contemplated herein. (b) Prior and as a condition to any sale or transfer of a Warrant or the Common Stock issued upon exercise thereof that bears the restrictive legend set forth in Section 6(c) or Section 6(d), respectively (other than to a "Qualified Institutional Buyer" within the meaning of Rule 144A under the Securities Act or pursuant to a registration statement that has been declared effective under the Securities Act), such transferee shall, unless the Company otherwise agrees in writing and so notifies the Warrant Agent, furnish to the Company and the Warrant Agent a signed letter containing representations and agreements relating to restrictions on transfer substantially in the form set forth in Exhibit B to this Agreement and an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as the Company and/or the Warrant Agent reasonably may require to confirm that any such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. (c) Every Warrant that bears or is required under this Section 6(c) to bear the legend set forth in this Section 6(c) (together with any Common Stock issued upon exercise of the Warrants and required to bear the legend set forth in Section 6(d), collectively, the "Restricted Securities") shall be subject to the restrictions on transfer set forth in this Section 6(c) (including the legend set forth below), unless such restrictions on transfer shall be waived by written consent of the Company, and the holder of each such Restricted Security, by such holder's acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in Sections 6(c) and 6(d), the term "transfer" encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security. Until two (2) years after the original issuance date of any Warrant, any certificate evidencing such Warrant (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon exercise thereof which shall bear the legend set forth in Section 6(d), if applicable) shall bear a legend in substantially the following form (unless such Warrants have been transferred pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer), pursuant to the exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Warrant Agent): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE WARRANT AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to instruct the Warrant Agent to place the following legend on any Warrant held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any Warrant (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the Warrant Certificate representing such Warrant for exchange to the Warrant registrar in accordance with the provisions of this Section 6, be exchanged for a new Warrant Certificate, of like tenor and representing the same aggregate number of Warrants, which shall not bear the restrictive legend required by this Section 6(c). (d) Until the end of the holding period under Rule 144(k) of the Securities Act (or any successor provision) applicable to the Common Stock issued upon exercise of a Warrant, the stock certificate representing such Common Stock shall bear a legend in substantially the following form (unless such Common Stock has been sold pursuant to the exemption from registration provided by Rule 144 under the Securities Act or pursuant to a registration statement that has been declared effective under the Securities Act, and which continues to be effective at the time of such transfer, or such Common Stock has been issued upon the exercise of Warrants that have been transferred pursuant to a registration statement that has been declared effective under the Securities Act, and which was effective at the time of such transfer, or unless otherwise agreed by the Company in writing with written notice thereof to the Warrant Agent and any transfer agent for the Common Stock): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN THE EVENT THIS SECURITY BECOMES ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE WARRANT AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRANSFER AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRANSFER AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY THE HOLDER OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to instruct the transfer agent for the Company's Common Stock to place the following legend on any certificate evidencing shares of Common Stock held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 6(d). (e) Any Warrant or Common Stock issued upon the exercise of a Warrant that, prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor rule), is purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Warrants or Common Stock, as the case may be, no longer being "restricted securities" (as defined under Rule 144). (f) Notwithstanding any provision of Section 6 to the contrary, in the event Rule 144(k) as promulgated under the Securities Act (or any successor rule) is amended to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), from and after receipt by the Warrant Agent of the Officer's Certificate and Opinion of Counsel provided for in this Section 6(f), (i) each reference in Section 6(c) and 6(d) to "two (2) years" shall be deemed for all purposes hereof to be references to such changed period and (ii) all corresponding references in the Warrants shall be deemed for all purposes hereof to be references to such changed period, provided that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws. As soon as practicable after the Company has knowledge of the effectiveness of any such amendment to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), unless such changes would otherwise be prohibited by, or would otherwise cause a violation of, the then-applicable securities law, the Company shall provide to the Warrant Agent an Officer's Certificate and Opinion of Counsel informing the Warrant Agent of the effectiveness of such amendment and the effectiveness of the foregoing changes to Sections 6(c) and 6(d) and the Warrants. The provisions of this Section 6(f) will not be effective until such time as the Opinion of Counsel and Officer's Certificate have been received by the Warrant Agent hereunder. This Section 6(f) shall apply to successive amendments to Rule 144(k) (or any successor rule) changing the holding period thereunder. (g) The Warrant Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Warrant other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Agreement, and to examine the same to determine substantial compliance as to form with the express requirements hereof and thereof. (h) No service charge shall be charged to the Warrantholder for any exchange or registration of transfer of Warrants, but the Company may require payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection with the issue and delivery of Warrant Certificates in any name other than that of such Warrantholder. (i) All Warrants surrendered for the purpose of exercise, repurchase, exchange or registration of transfer, shall, if surrendered to the Company or any Warrant registrar, be surrendered to the Warrant Agent and promptly canceled by it, or if surrendered to the Warrant Agent, shall be promptly canceled by it, and no Warrants shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Warrant Agent shall dispose of canceled Warrants in accordance with its customary procedures. If the Company shall acquire any of the Warrants, such acquisition shall not operate as a redemption of satisfaction of the indebtedness represented by such Warrants unless and until the same are delivered to the Warrant Agent for cancellation. (k) During any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, Warrantholders (or holders of interests therein) and prospective purchasers designated by such Warrantholders (or such holders of interests therein) shall have the right to obtain from the Company upon request by such Warrantholders (or such holders of interests) or prospective purchasers the information required by paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such Warrants or interests. In addition, if the Common Stock is eligible for sale pursuant to Rule 144A, the holders of the shares of Common Stock issuable upon exercise of the Warrants and prospective purchasers designated by such holders shall have the right to obtain from the Company upon request by such holder or prospective purchasers, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the information required by paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of such shares of Common Stock. SECTION 7. Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates. Upon receipt by the Company and the Warrant Agent (or any agent of the Company or the Warrant Agent, if requested by the Company) of evidence satisfactory to them of the loss, theft, destruction, defacement, or mutilation of any Warrant Certificate and of indemnity satisfactory to them and, in the case of mutilation or defacement, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser or holder in due course, the Company shall execute, and an authorized signatory of the Warrant Agent shall manually countersign and make available for delivery, in exchange for or in lieu of the lost, stolen, destroyed, defaced or mutilated Warrant Certificate, a new Warrant Certificate representing a like number of Warrants, bearing a number or other distinguishing symbol not contemporaneously outstanding. Every substitute Warrant Certificate executed and delivered pursuant to this Section 7 in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of (but shall be subject to all the limitations of rights set forth in) this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 7 are exclusive with respect to the replacement of lost, stolen, destroyed, defaced or mutilated Warrant Certificates and shall preclude (to the extent lawful) any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement of lost, stolen, destroyed, defaced or mutilated Warrant Certificates. The Warrant Agent is hereby authorized to countersign in accordance with the provisions of this Agreement and make available for delivery the new Warrant Certificates required pursuant to the provisions of this Section 7. SECTION 8. Offices for Exercise, Etc. So long as any of the Warrants remain outstanding, the Company shall designate and maintain in the Borough of Manhattan, the City of New York: (a) an office or agency where the Warrant Certificates may be presented for exercise, (b) an office or agency where the Warrant Certificates may be presented for registration of transfer and for exchange (including the exchange of temporary Warrant Certificates for definitive Warrant Certificates pursuant to Section 5(c) hereof), and (c) an office or agency where notices and demands to or upon the Company in respect of the Warrants or of this Agreement may be served. The Company may from time to time change or rescind such designation, as it may deem desirable or expedient; provided, however, that an office or agency shall at all times be maintained in the Borough of Manhattan, City of New York, as provided in the first sentence of this Section 8. In addition to such office or offices or agency or agencies, the Company may from time to time designate and maintain one or more additional offices or agencies within or outside the Borough of Manhattan, City of New York, where Warrant Certificates may be presented for exercise or for registration of transfer or for exchange, and the Company may from time to time change or rescind such designation, as it may deem desirable or expedient. The Company will give to the Warrant Agent written notice of the location of any such office or agency and of any change of location thereof. The Company hereby designates the Warrant Agent's Corporate Office, as the initial agency maintained for each such purpose. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notice may be served at the Corporate Office and the Company appoints the Warrant Agent as its agent to receive all such presentations, surrenders, notices and demands. SECTION 9. Duration of Warrants; Early Termination of Warrants. (a) The Warrants shall expire at 5:00 p.m., New York City time, on August 28, 2006 (such date, the "Expiration Date"). Each Warrant may be exercised on any Business Day on or prior to the close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. SECTION 10. Exercise, Exercise Price, Settlement and Delivery. (a) Warrants may be exercised during the period commencing on the day after the date of the Warrant Agreement and ending at 5:00 p.m., New York City time, on the Expiration Date, by (i) surrendering, at any office or agency maintained for that purpose by the Company pursuant to Section 8 (each a "Warrant Exercise Office"), the Warrant Certificate evidencing such Warrants with the exercise form appended to the Warrant Certificate (the "Exercise Form") duly completed and signed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, and in the case of a transfer, such signature shall be guaranteed by an eligible guarantor institution, (ii) sending copies of such Exercise Form via facsimile to the Company, attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600), (iii) paying in full the Exercise Price for each such Warrant exercised and any other amounts required to be paid pursuant to Section 10(b) hereof, (iv) except in the event of a Cashless Exercise (as defined in Section 10(b)) or in the event of the exercise of a Warrant that has been transferred pursuant to a registration statement that has been declared effective under the Securities Act, and which was effective at the time of such transfer, furnishing to the Company and the Warrant Agent a signed letter containing certain representations and agreements relating to the restrictions on transfer set forth in Exhibit B hereto and an opinion of counsel if the Company so requests, and (v) providing such additional documentation or certifications as the Company and/or the Warrant Agent may reasonably request. (b) Simultaneously with the exercise of each Warrant, payment in full of the Exercise Price shall be made: (i) in cash or by certified or official bank check to be delivered to the office or agency where the Warrant Certificate is being surrendered; (ii) by tendering a principal amount of Notes in integral multiples of $1,000, including any accrued but unpaid interest thereon up to, but not including, the Exercise Date, equal to, together with any payment of cash pursuant to Section 10(b)(i) above, the Exercise Price; or (iii) solely by the surrender of the applicable Warrant Certificate, and without the payment of the Exercise Price in cash, for such number of shares of Common Stock equal to the product of (1) the number of shares of Common Stock for which such Warrant is exercisable upon payment of the Exercise Price in cash as of the date of exercise and (2) the Cashless Exercise Ratio (such exercise, a "Cashless Exercise"). For purposes of this Agreement, the "Cashless Exercise Ratio" shall equal a fraction, the numerator of which is the excess of the Closing Price per share of the Common Stock on the last Trading Day before the Exercise Date (determined as set forth in Section 10(c)) over the Exercise Price Per Share (as defined below) as of the last Trading Day before the Exercise Date and the denominator of which is the Closing Price per share of the Common Stock on the last Trading Day before the Exercise Date. Upon surrender of a Warrant Certificate representing more than one Warrant in connection with the holder's option to elect a Cashless Exercise, the number of shares of Common Stock deliverable upon a Cashless Exercise shall be equal to the number of shares of Common Stock for which such Warrants are exercisable (or if only a portion of such Warrants are being exercised, such number of shares of Common Stock issuable upon exercise of the Warrants that the holder specifies are to be exercised pursuant to a Cashless Exercise) upon payment of the Exercise Price in cash as of the date of exercise multiplied by the Cashless Exercise Ratio. In accordance with Section 10(e) hereof and subject to Section 16 hereof, if any holder exercises less than all of the Warrants evidenced by a Warrant Certificate, a new Warrant Certificate will be issued to such holders for the remaining number of Warrants. All provisions of this Agreement shall be applicable with respect to an exercise of a Warrant Certificate pursuant to a Cashless Exercise for less than the full number of Warrants represented thereby. "Exercise Price Per Share" means with respect to the Common Stock the Exercise Price divided by the number of shares of Common Stock for which a Warrant is then exercisable (without giving effect to the Cashless Exercise option). No payment or adjustment shall be made on account of any dividends on the shares of Common Stock issued upon exercise of a Warrant. (c) Upon such surrender of a Warrant Certificate, payment and collection of the Exercise Price at any Warrant Exercise Office (other than the Corporate Office), delivery of the letter and opinion of counsel referenced in Section 10(a), if required, and delivery of such additional documentation or certifications as the Company and/or the Warrant Agent may reasonably request, such Warrant Certificate and payment shall be promptly delivered to the Warrant Agent. The "Exercise Date" for a Warrant shall be the date when all of the applicable items referred to in the first sentence of paragraphs (a) and (b) of this Section 10 are received by the Warrant Agent, the Company and Latham & Watkins, at or prior to 11:00 a.m., New York City time, on a Business Day and the exercise of the Warrants will be effective as of such Exercise Date. If any items referred to in the first sentence of such paragraphs (a) and (b) are received after 11:00 a.m., New York City time, on a Business Day, the exercise of the Warrants to which such item relates will be effective on the next succeeding Business Day. Notwithstanding the foregoing, in the case of an exercise of Warrants on the Expiration Date, if all of the items referred to in the first sentence of paragraphs (a) and (b) are received by the Warrant Agent, the Company and Latham & Watkins, as applicable, at or prior to 5:00 p.m., New York City time, on such Expiration Date, the exercise of the Warrants to which such items relate will be effective on the Expiration Date. For purposes of determining satisfaction of the requirement set forth above with respect to the Exercise Date for any Warrant, any facsimile required to be sent shall be deemed to have been received on a given day if such facsimile was sent before 11:00 a.m., New York City time, on such date (or 5:00 p.m., New York City time, if such date is the Expiration Date), to the number listed above in Section 10(a) (unless a different number is specified in a notice filed with the Warrant Agent and mailed by the Warrant Agent at the Company's expense to each holder of Warrants at such holder's address appearing on the Warrant register) and confirmation of the transmission of such facsimile is obtained. (d) Upon the exercise of a Warrant in accordance with the terms hereof, the receipt of a Warrant Certificate and payment of the Exercise Price (or election of the Cashless Exercise option), the Warrant Agent shall: (i) except to the extent exercise of the Warrant has been effected through Cashless Exercise, cause an amount equal to the Exercise Price to be paid to the Company by crediting the same to the account designated by the Company in writing to the Warrant Agent for that purpose; (ii) promptly advise the Company by telephone of the amount so deposited to the Company's account and promptly confirm such telephonic advice in writing; and (iii) as soon as practicable, advise the Company in writing of the number of Warrants exercised in accordance with the terms and conditions of this Agreement and the Warrant Certificates, the instructions of each exercising holder of the Warrant Certificates with respect to delivery of the shares of Common Stock to which such holder is entitled upon such exercise, and such other information as the Company shall reasonably request. (e) Subject to Section 6 hereof, the Company shall use its reasonable best efforts to issue or cause to be issued to or upon the written order of the registered holder of the Warrant Certificate evidencing such exercised Warrant or Warrants, the shares of Common Stock to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder pursuant to the Exercise Form, as appended to the Warrant Certificate, within three (3) Business Days of such Exercise Date, and in any event, shall issue or caused to be issued such shares within ten (10) Business Days of such Exercise Date. Such shares of Common Stock shall be deemed to have been issued and any persons who are designated to be named therein shall be deemed to have become the holder of record of such shares of Common Stock as of the close of business on the Exercise Date. After such exercise of any Warrant or Warrants, the Company shall also issue or cause to be issued to or upon the written order of the registered holder of such Warrant Certificate, a new Warrant Certificate, countersigned by the Warrant Agent pursuant to written instruction, evidencing the number of Warrants, if any, remaining unexercised unless such Warrants shall have expired. SECTION 11. Cancellation of Warrant Certificates. The Warrant Agent shall cancel all Warrant Certificates properly surrendered for exchange, substitution, transfer or exercise. The Warrant Agent shall dispose of such canceled Warrant Certificates in accordance with its customary procedures. SECTION 12. Adjustment of Exercise Price and Number of Shares Issuable. The Exercise Price, the number of Shares issuable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 12. (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Exercise Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Exercise Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12(h)) fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 12(a) is declared but not so paid or made, the Exercise Price shall again be adjusted to the Exercise Price which would then be in effect if such dividend or distribution had not been declared. (b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Exercise Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Exercise Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for the determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price (as defined in Section 12(h)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Exercise Price shall be adjusted so that the same shall equal the price determined by multiplying the Exercise Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares that the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such Current Market Price, and of which the denominator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Exercise Price shall be readjusted to the Exercise Price that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 12(a) applies) or evidences of its indebtedness or other assets (including securities, but excluding (1) any rights or warrants referred to in Section 12(c) and (2) dividends and distributions paid exclusively in cash (except as set forth in Section 12(e) and (f), (the foregoing hereinafter in this Section 12(d) called the "Securities")), unless the Company elects to reserve such Securities for distribution to the Warrantholders upon conversion of the Warrants so that any such holder converting Warrants will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Warrants into Common Stock immediately prior to the Record Date (as defined in Section 12(h) for such distribution of the Securities) then, in each such case, the Exercise Price shall be reduced so that the same shall be equal to the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on the Record Date (as defined in Section 12(h)) with respect to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in Section 12(h)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Warrantholder shall have the right to receive upon conversion of a Warrant (or any portion thereof) the amount of Securities such holder would have received had such holder converted such Warrant (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 12(h) to the extent possible, unless the Board of Directors in a Board Resolution reasonably determines that determining the fair market value during the Reference Period would not be in the best interest of the Warrantholder. In the event that the Company implements a new stockholder rights plan, such rights plan shall provide that upon exercise of the Warrants the holders will receive, in addition to the Common Stock issuable upon such exercise, the rights issued under such rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of exercise). Any distribution of rights or warrants pursuant to a stockholder rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants for the purposes of this Section 12(d). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"), (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable, and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 12(d) (and no adjustment to the Exercise Price under this Section 12(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Exercise Price under this Section 12(d), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Exercise Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Exercise Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12(d) and Sections 12(a) and (c), any dividend or distribution to which this Section 12(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock or rights or warrants to which Section 12(c) applies (and any Exercise Price reduction required by this Section 12(e) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Exercise Price reduction required by Sections 12(a) and (c) with respect to such dividend or distribution shall then be made, except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "Record Date fixed for such determination" and "Record Date" within the meaning of Section 12(a) and as "the date fixed for the determination of stockholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 12(c) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 12(a). (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 13 applies or as part of a distribution referred to in Section 12(d)), in an aggregate amount that, combined together with (1) the aggregate amount of any other such distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12(e) has been made, and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 12(f) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 12(h)) on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such date, the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the close of business on such Record Date by a fraction (i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the Record Date and (ii) the denominator of which shall be equal to the Current Market Price on such date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Warrantholder shall have the right to receive upon exercise of a Warrant (or any portion thereof) the amount of cash such holder would have received had such holder exercised such Warrant (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such dividend or distribution had not been declared. (f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (1) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this Section 12(f) has been made and (2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to Section 12(e) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 12(h)) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Exercise Price shall be adjusted so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to close of business on the date of the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction (if any) to become effective immediately prior to the opening of business on the day following the Expiration Time. .In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such tender offer had not been made. If the application of this Section 12(f) to any tender offer would result in an increase in the Exercise Price, no adjustment shall be made for such tender offer under this Section 12(f). (g) In case of a tender or exchange offer made by a person other than the Company or any Subsidiary for an amount that increases the offeror's ownership of Common Stock to more than 25% of the Common Stock outstanding and shall involve the payment by such person of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors in good faith, whose determination shall be conclusive, and described in a resolution of the Board of Directors) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of the Expiration Time the Board of Directors is not recommending rejection of the offer, the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that such person is obligated to purchase shares pursuant to any such tender or exchange offer, but such person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 12(g) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Section 13. (h) For purposes of this Section 12, the following terms shall have the meaning indicated: (i) "Closing Price" with respect to any securities on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in each case on the Nasdaq National Market or New York Stock Exchange, as applicable, or, if such security is not listed or admitted to trading on such National Market or Exchange, on the principal national security exchange or quotation system on which such security is quoted or listed or admitted to trading, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of such security on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or if not so available, in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or a price determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution. (ii) "Current Market Price" shall mean the average of the daily Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to the date in question; provided, however, that (1) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) or (g) occurs during such ten (10) consecutive Trading Days, the Closing Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the same fraction by which the Exercise Price is so required to be adjusted as a result of such other event, (2) if the "ex" date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) or (g) occurs on or after the "ex" date for the issuance or distribution requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Exercise Price is so required to be adjusted as a result of such other event, and (3) if the "ex" date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (1) or (2) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12(d), (f) or (g), whose determination shall be conclusive and described in a Board Resolution) of the evidences of indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the close of business on the day before such "ex" date. For purposes of any computation under Sections 12(f) or (g), the Current Market Price of the Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of Common Stock for such day and the next two succeeding Trading Days; provided, however, that if the "ex" date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Exercise Price pursuant to Section 12(a), (b), (c), (d), (e), (f) and (g) occurs on or after the Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Exercise Price is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (3) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such offer. Notwithstanding the foregoing, whenever successive adjustments to the Exercise Price are called for pursuant to this Section 12, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 12 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. (iii) "Fair market value" shall mean the amount which a willing buyer would pay a willing seller in an arm's length transaction. (iv) "Record Date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). (v) "Trading Day" shall mean (x) if the applicable security is listed or admitted for trading on the New York Stock Exchange or another national security exchange, a day on which the New York Stock Exchange or such other national security exchange, as applicable, is open for business or (y) if the applicable security is quoted on the Nasdaq National Market, a day on which trades may be made thereon or (z) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (i) The Company may make such reductions in the Exercise Price, in addition to those required by Sections 12(a), (b), (c), (d), (e), (f) and (g), as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the Exercise Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during such period and the Board of Directors shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive and described in a Board Resolution. Whenever the Exercise Price is reduced pursuant to the preceding sentence, the Company shall mail to the holder of each Warrant at his last address appearing on the Warrant register provided for in Section 8 a notice of the reduction at least fifteen (15) days prior to the date the reduced Exercise Price is to take effect, and such notice shall state the reduced Exercise Price and the period during which it will be in effect. (j) No adjustment in the Exercise Price shall be required under this Section 12 unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Section 12(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 12 shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of the Common Stock. (k) Whenever the Exercise Price is adjusted as provided in this Section 12, the Company shall promptly file with the Warrant Agent an Officer's Certificate setting forth the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. The Warrant Agent shall be fully protected in relying on any such certificate and on any adjustment therein contained and shall not be deemed to have knowledge of such adjustment unless and until it shall have received such certificate. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Exercise Price setting forth the adjusted Exercise Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Exercise Price to the holder of each Warrant at his last address appearing on the Warrant register provided for in Section 8, within twenty (20) days of the effective date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such adjustment. (l) In any case in which this Section 12 provides that an adjustment shall become effective immediately after a Record Date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Warrant exercised after such Record Date and before the occurrence of such event the additional shares of Common Stock issuable upon such exercise by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 17. (m) For purposes of this Section 12, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (n) Upon each adjustment of the Exercise Price pursuant to this Section 12, each Warrant shall thereupon evidence the right to purchase that number of shares of Common Stock (calculated to the nearest hundredth of a share) obtained by multiplying the number of shares of Common Stock purchasable immediately prior to such adjustment upon exercise of the Warrant by the Exercise Price in effect immediately prior to such adjustment and dividing the product so obtained by the Exercise Price in effect immediately after such adjustment. The adjustment pursuant to this Section 12(o) to the number of shares of Common Stock purchasable upon exercise of a Warrant shall be made each time an adjustment of the Exercise Price is made pursuant to this Section 12 (or would be made but for Section 12(j) hereof). SECTION 13. Effect of Reclassification, Consolidation, Merger or Sale. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of this Section 13 the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall cause notice of the execution of such supplemental warrant agreement to be mailed to each holder of Warrants, at such holder's address appearing on the Warrant register provided for in Section 6 of this Warrant agreement, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental warrant agreement. The above provisions of this Section shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 13 applies to any event or occurrence, Section 12 shall not apply. SECTION 14. Taxes on Shares Issued. The issue of stock certificates upon exercise of Warrants shall be made without charge to the exercising Warrantholder for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the holder of any Warrant exercised, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. SECTION 15. Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock. The Company shall reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock for issuance upon exercise of the Warrants from time to time as such Warrants are presented for exercise. Before taking any action which would cause an adjustment reducing the Exercise Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Warrants, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Exercise Price. The Company covenants that all shares of Common Stock issued upon exercise of Warrants will be duly and validly issued and fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof. The Company further covenants that if at any time the Common Stock shall be listed on the New York Stock Exchange, Nasdaq National Market or any other national securities exchange or automated quotation system the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Warrants. SECTION 16. Fractional Warrants and Fractional Shares(a) Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. (b) Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised, as herein provided, an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this Section 16(b), the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. SECTION 17. Notice to Warrantholders Prior to Certain Actions. In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Exercise Price pursuant to Section 12; or (b) the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants; or (c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company; the Company shall cause to be filed with the Warrant Agent and mailed by the Warrant Agent at the Company's expense to each holder of Warrants at such holder's address appearing on the Warrant register as promptly as possible but in any event at least fifteen days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Warrant Agent under the provisions of Section 21. In case at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, and in case at that time any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor warrant agent or in the name of the successor warrant agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name, and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name, and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. SECTION 19. Warrant Agent. The Warrant Agent undertakes the duties and obligations expressly imposed by this Agreement upon the following terms and conditions, and no implied duties or obligations shall be read into this Agreement against the Warrant Agent, by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant Certificates except as herein otherwise provided. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. (c) The Warrant Agent may consult at any time with counsel of its own selection (who may be counsel for the Company) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) The Warrant Agent may conclusively rely upon and shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument (whether in its original or facsimile form) believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent such compensation as shall be agreed between the Company and the Warrant Agent for all services rendered by the Warrant Agent in the execution of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in connection with the execution and administration of its duties under this Agreement and to fully indemnify the Warrant Agent and save it harmless against any and all liabilities, claims, damages, losses and expenses including judgments, costs and reasonable counsel fees and expenses, for anything done or omitted by the Warrant Agent in the execution and administration of its duties under this Agreement except as determined by a court of competent jurisdiction to have been caused by its gross negligence or willful misconduct. The provisions of this Section 19(e) shall survive the termination of this Agreement. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with security and indemnity satisfactory to it for any costs and expenses which may be incurred. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear. (g) The Warrant Agent, and any stockholder, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof and no duties shall be inferred or implied against the Warrant Agent. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence or willful misconduct. (i) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of is rights if there shall be reasonable grounds for believing repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. SECTION 20. Disposition of Proceeds of Exercise of Warrants. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys or Notes received by the Warrant Agent on the purchase of shares of Common Stock upon the exercise of Warrants. SECTION 21. Change of Warrant Agent. If the Warrant Agent shall become incapable of acting as Warrant Agent, the Company shall appoint a successor. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such incapacity by the incapacitated Warrant Agent or by the registered holder of a Warrant Certificate, then the Warranty Agent or registered holder of any Warrant Certificate may apply, at the reasonable expense of the Company, to any court of competent jurisdiction for the appointment of a successor to the incapacitated Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor warrant agent whether appointed by the Company or by such a court, shall be a bank or trust company, in good standing, incorporated under the laws of the State of New York or of the United States of America, and having its principal office in the Borough of Manhattan in New York, New York, and must have at the time of its appointment as Warrant Agent a combined capital and surplus of at least one hundred million dollars. After appointment the successor warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the former Warrant Agent shall, upon payment of all amounts owed to it hereunder, deliver and transfer to the successor warrant agent any property at the time held by it hereunder and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor warrant agent as the case may be. SECTION 22. Notices to Company and Warrant Agent. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent or by the registered holder of any Warrant Certificate to or on the Company shall be sufficiently given or made if sent by mail, first class or registered, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows: TiVo Inc. 2160 Gold Street Alviso, CA 95002 Attention: Chief Financial Officer In case the Company shall fail to maintain such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the principal corporate trust office of the Warrant Agent. Any notice pursuant to this Agreement to be given by the Company or by the registered holder of any Warrant Certificate to the Warrant Agent shall be sufficiently given if sent by first-class mail, postage pre-paid, addressed (until another address is filed in writing by the Warrant Agent with the Company) to the Warrant Agent as follows: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration SECTION 23. Supplements and Amendments. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of Warrant Certificates; provided, however, that the written consent of the holders of Warrant Certificates representing a majority of the Warrants then outstanding (but not including any Warrants then held by the Company or its Affiliates) is required to amend or supplement the Warrant Agreement in any manner that would have a material adverse effect on the interests of the Warrantholders and provided further, that the consent of each holder of the Warrants affected is required for any amendment which would increase the Exercise Price or decrease the number of shares of Common Stock purchasable upon exercise of the Warrants, except, in any case, pursuant to the adjustments provided for in Section 12. Upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section, the Warrant Agent shall execute such supplement or amendment. Notwithstanding any other provision hereof, the Warrant Agent's consent must be obtained regarding any amendment or supplement pursuant to this Section 23 which alters the Warrant Agent's rights or duties. It shall not be necessary for the consent of the Warrantholders under this Section 23 to approve the particular form of any proposed supplemental warrant agreement, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 24. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 25. Termination. This Agreement shall terminate at the close of business on August 28, 2006. Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants have been exercised. The provisions of Section 19 shall survive such termination. SECTION 26. Governing Law. THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. SECTION 27. Benefits of This Agreement. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company, the Warrant Agent and the registered holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. SECTION 28. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. [SIGNATURE PAGE TO WARRANT AGREEMENT] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. TIVO INC. By: /s/ Michael Ramsay Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer THE BANK OF NEW YORK, as Warrant Agent By: /s/ Michael Pitfick Name: Michael Pitfick Title: Assistant Treasurer EXHIBIT A FORM OF WARRANT TIVO INC. No. CUSIP No. [THE FOLLOWING PARAGRAPHS SHALL APPEAR ON THE FACE OF EACH RESTRICTED WARRANT.] THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE WARRANT AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. [THE COMPANY MAY, BUT IS NOT OBLIGATED TO INSTRUCT THE WARRANT AGENT TO PLACE THE FOLLOWING LEGEND ON ANY WARRANT HELD BY OR TRANSFERRED TO AN "AFFILIATE" (AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT):] THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. WARRANT REPRESENTING _________ WARRANTS TO PURCHASE COMMON STOCK This certifies that _________, or its registered assigns, is the registered owner of __________ Warrants, each expiring August 28, 2006, and each of which entitles the registered owner thereof (the "Warrantholder") to purchase at any time prior to the expiration hereof from TIVO INC., a Delaware corporation (the "Company"), one share of Common Stock (the "Common Stock"), $0.001 par value per share, of the Company at the purchase price of $7.85 per share of Common Stock (the "Exercise Price"), subject to adjustment as provided in the Warrant Agreement hereinafter referred to. The Warrants evidenced by this Warrant are issued under and in accordance with the Warrant Agreement, dated as of August 28, 2001 (the "Warrant Agreement"), between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"), and the Registration Rights Agreement, dated of even date therewith (the "Registration Rights Agreement"), among the Company and the initial purchasers of the Warrants, and are subject to the terms and provisions contained therein, to all of which terms and provisions the holder of this Warrant consents by acceptance of this Warrant and which Warrant Agreement and Registration Rights Agreement are hereby incorporated by reference in and made a part of this Warrant. Reference is hereby made to the Warrant Agreement and the Registration Rights Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Warrantholders. The summary of the terms of the Warrant Agreement and the Registration Rights Agreement contained in this Warrant is qualified in its entirety by express reference to such agreements. All capitalized terms used but not defined in this Warrant shall have the meanings assigned to them in the Warrant Agreement. As provided in the Warrant Agreement, and subject to the terms and conditions set forth therein, the Warrants shall be exercisable at any time during the period commencing on the day after the date of the Warrant Agreement and ending at 5:00 p.m., New York time, on August 28, 2006 (the "Expiration Date"). This Warrant may be exercised on any Business Day on or prior to close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. The Exercise Price and the number of shares of Common Stock purchasable upon exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of Section 13 of the Warrant Agreement the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12 of the Warrant Agreement. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall not be required to issue fractions of shares of Common Sock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this calculation, the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. The Company covenants that it will at all times through 5:00 p.m., New York time, on the Expiration Date (or, if the Expiration Date shall not be a Business Day, then on the next-succeeding Business Day) reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury or a combination thereof of Common Stock, solely for the purpose of issue upon exercise of Warrants as herein provided, sufficient shares of Common Stock, for issuance upon exercise of, the Warrants from time to time as such Warrants are presented for exercise. The Company covenants that all shares of Common Stock issued upon exercise of Warrants shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof. The initial issuance of certificates of Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrantholders for any tax in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised, subject to the restrictions on transfer set forth herein and in the Warrant Agreement; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Subject to the terms and provisions of the Registration Rights Agreement, the Company shall file under the Securities Act a registration statement providing for the registration of all of the Warrants and the shares of Common Stock issuable upon exercise thereof. As provided in the Warrant Agreement and the Registration Rights Agreement, the Warrantholders have additional rights and duties with respect to the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants. A Warrantholder may be required to indemnify and hold the Company and certain other persons harmless in connection with written information furnished to the Company by or on behalf of such Warrantholder specifically for use in any registration statement, or any preliminary or final or summary Prospectus contained therein or any amendment or supplement thereto. By its acceptance of any Warrant represented by a Warrant Certificate bearing a restrictive legend, each holder and beneficial owner of such a Warrant acknowledges the restrictions on transfer of such a Warrant set forth in such legend and agrees that it will transfer such a Warrant only in accordance with such legend. Subject to the restrictions on transfer set forth herein and in the Warrant Agreement, this Warrant and all rights hereunder are transferable by the registered Warrantholder hereof, in whole or in part, on the Warrant register, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached "Form of Assignment," by the registered Warrantholder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, the Company will issue and the Warrant Agent will countersign and deliver to such Warrantholder a new Warrant Certificate or Warrant Certificates with respect to any portion not so transferred. Each taker and holder of this Warrant, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, the Company and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the holder of this Warrant shall not be entitled, as such, to any rights of a stockholder of the Company, including, without limitation, the right to vote or to consent to any action of the stockholders of the Company, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders of the Company, and shall not be entitled to receive any notice of any proceedings of the Company except as provided in the Warrant Agreement. Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. This Warrant shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. TIVO INC. By: Name: Title: Attest: By: Name: Title: Countersigned: THE BANK OF NEW YORK as Warrant Agent By: Authorized Signatory Dated: EXERCISE FORM (To be executed only upon exercise of Warrant) The undersigned registered holder of a Warrant Certificate representing __________ Warrants irrevocably elects to exercise __________ of the Warrants represented by the Warrant Certificate for the purchase of one share (subject to adjustment as set forth in the Warrant Agreement) of Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and herewith [ ] makes payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), [ ] tenders $_______ principal amount of the Company's 7% Convertible Senior Notes due 2006, plus payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), [ ] elects to make a "Cashless Exercise" of such Warrants as provided in Section 10(b) of the Warrant Agreement, all at the exercise price and on the terms and conditions specified in the Warrant and the Warrant Agreement therein referred to, and surrenders all of its right, title and interest in the number of Warrants exercised herein to TiVo Inc., and directs that the shares of Common Stock or other securities or property deliverable upon the exercise of such Warrants, and any Warrant Certificate or interests in the Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. Dated: ________________________________________ (Signature of Warrantholder) ________________________________________ (Street Address) ________________________________________ (City) (State) (Zip Code Signature Guaranteed By: ________________________________________ This form must be delivered to the Warrant Agent at the Corporate Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM (Common Stock or Notes: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER:_____________________________________________________________ ACCOUNT NAME:_______________________________________________________________ ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ FORM OF ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below: Social Security Number Number or Other Name of Assignees Address of Warrants Identifying Number and does hereby irrevocably constitute and appoint ________________________, the undersigned's attorney, to make such transfer on the books of TiVo Inc. maintained for the purpose, with full power of substitution in the premises. In connection with any transfer occurring within two years (or such longer or shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Warrant (unless such Warrant is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Warrant is being transferred: _ |_| *To TiVo Inc. or a subsidiary thereof; or _ |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or _ |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Note is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): _ |_| *The transferee is an Affiliate of the Company. Dated: ________________________________________ (Signature of Warrantholder) ________________________________________ (Street Address) ________________________________________ (City) (State) (Zip Code) Signature Guaranteed By: ________________________________________ EXHIBIT B FORM OF TRANSFER LETTER OF REPRESENTATIONS (To be delivered upon exercise of Warrants or upon certain transfers of Warrants WITHOUT EFFECTIVE REGISTRATION STATEMENT) We are delivering this letter in connection with (i) the exercise of Warrants (as defined in the Warrant Agreement, dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (the "Company") and The Bank of New York, a New York banking corporation (the "Warrant Agent")) by us for shares of common stock, par value $.001 per share, of the Company (the "Common Stock") or (ii) the sale or transfer to us of Warrants, other than pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended (the "Securities Act"). The Warrants and the Common Stock are sometimes referred to herein as the "Securities." We hereby confirm that: (i) we are an "accredited investor" within the meaning of Rule 501(a)(1),(2), (3), (5), (6) or (7) under the Securities Act; (ii) any purchase or receipt of the Securities by us will be for investment purposes and for our own account, not as a nominee or agent; (iii) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing or receiving the Securities ; (iii) we do not have need for liquidity in our investment in the Securities , we have the ability to bear the economic risks of our investment in the Securities for an indefinite period of time and we are able to afford the complete loss of our investment in the Securities; (iv) we are not acquiring the Securities with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction, and we have no present intention of selling, granting any participation in, or otherwise distributing the same; (v) we have had access to such information regarding the Company necessary in order for us to make an informed decision and any such information which we have requested have been made available for us or our attorney, accountant, or advisor; and (vi) we or our attorney, accountant, or advisor have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the business, management and financial affairs of the Company and the terms and conditions of the acquisition by us of the Securities and all such questions have been answered to our full satisfaction, and we have acquired sufficient information about the Company to make an informed and knowledgeable decision to acquire the Securities. We understand that the Securities have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Securities, that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction meeting the requirements of Rule 144 under the Securities Act, outside the United States in a transaction meeting the requirements of Rule 904 under the Securities Act, or in accordance with another exemption from the registration requirements of the Securities Act, (ii) to the Company or (iii) pursuant to an effective registration statement, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction. We agree that we will furnish the Company, the Warrant Agent and, if exercising Warrants, the Company's transfer agent an opinion of counsel, if the Company so requests, that the foregoing restrictions on transfer have been complied with. We understand that the Warrant Agent will not be required to accept for registration of transfer or exercise any Warrants, except upon presentation of evidence satisfactory to the Company, including an opinion of counsel if the Company so requests, that the foregoing restrictions on transfer or exercise have been complied with. We acknowledge that the Company and others will rely upon our confirmations, acknowledgements and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete. ------------------------------ (Name) By:____________________________ Name: Title: Address: EX-12 14 exhibit12.txt INDENTURE Exhibit 12 =============================================================================== TiVo Inc., Issuer The Bank of New York, as Trustee INDENTURE Dated as of August 28, 2001 7% Convertible Senior Notes due 2006 ================================================================================ CROSS-REFERENCE SHEET* Provisions of Trust Indenture Act of 1939 and Indenture, dated as of August 28, 2001, between TiVo Inc. and The Bank of New York, as Trustee, providing for the 7% Convertible Senior Notes due 2006: Section of the Act Section of Indenture - --------------------------------------------- ----------------------- 310(a)(1) and (2)............................ 8.9 310(a)(3) and (4)............................ N.A.** 310(b)....................................... 8.8 and 8.10(b) and (d) 310(c)....................................... N.A. 311(a)....................................... 8.13 311(b)....................................... 8.13 311(c)....................................... N.A. 312(a)....................................... 6.1 and 6.2(a) 312(b)....................................... 6.2(b) 312(c)....................................... 6.2(c) 313(a)....................................... 6.3(a) 313(b)(1).................................... N.A. 313(b)(2).................................... 6.3(a) 313(c)....................................... 6.3(a) 313(d)....................................... 6.3(b) 314(a)....................................... 6.4 314(b)....................................... N.A. 314(c)(1) and (2)............................ 17.5 314(c)(3).................................... N.A. 314(d)....................................... N.A. 314(e)....................................... 17.5 314(f)....................................... N.A. 315(a), (c) and (d).......................... 8.1 315(b)....................................... 7.8 315(e)....................................... 7.9 316(a)(1).................................... 7.7 316(a)(2).................................... Not required 316(a) (last sentence)....................... 9.4 316(b)....................................... 11.2 * This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture. ** N.A. means Not Applicable. TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS.................................................................................................1 Section 1.1 Definitions.....................................................................................1 ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES..........................................7 Section 2.1 Designation, Amount and Issue of Notes..........................................................7 Section 2.2 Form of Notes...................................................................................7 Section 2.3 Date and Denomination of Notes; Payments of Interest............................................8 Section 2.4 Execution of Notes..............................................................................9 Section 2.5 Exchange and Registration of Transfer of Notes; Restrictions on Transfer.......................10 Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.....................................................17 Section 2.7 Temporary Notes................................................................................18 Section 2.8 Cancellation of Notes Paid, Etc................................................................18 Section 2.9 CUSIP Numbers..................................................................................19 ARTICLE III PROVISIONAL REDEMPTION OF NOTES..........................................................................19 Section 3.1 Redemption Price...............................................................................19 Section 3.2 Notice of Redemption; Selection of Notes.......................................................20 Section 3.3 Payment of Notes Called for Redemption.........................................................21 Section 3.4 Conversion Arrangement on Call for Redemption..................................................22 ARTICLE IV [Intentionally Omitted.]..................................................................................23 ARTICLE V PARTICULAR COVENANTS OF THE COMPANY........................................................................23 Section 5.1 Payment of Principal, Premium and Interest.....................................................23 Section 5.2 Maintenance of Office or Agency................................................................23 Section 5.3 Appointments to Fill Vacancies in Trustee's Office.............................................24 Section 5.4 Provisions as to Paying Agent..................................................................24 Section 5.5 Existence......................................................................................25 Section 5.6 Information Requirement........................................................................25 Section 5.7 Stay, Extension and Usury Laws.................................................................25 Section 5.8 Compliance Certificate.........................................................................25 Section 5.9 Further Instruments and Acts...................................................................26 Section 5.10 Limitation on Dividends and Distributions......................................................26 Section 5.11 Limitation on Incurrence of Indebtedness of Subsidiaries.......................................26 ARTICLE VI NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.............................................27 Section 6.1 Noteholders' Lists.............................................................................27 Section 6.2 Preservation and Disclosure of Lists...........................................................27 Section 6.3 Reports by Trustee.............................................................................27 Section 6.4 Reports by Company.............................................................................28 ARTICLE VII DEFAULTS AND REMEDIES....................................................................................28 Section 7.1 Events of Default..............................................................................28 Section 7.2 Payments of Notes on Default; Suit Therefor....................................................31 Section 7.3 Application of Monies Collected by Trustee.....................................................33 Section 7.4 Proceedings by Noteholder......................................................................33 Section 7.5 Proceedings by Trustee.........................................................................34 Section 7.6 Remedies Cumulative and Continuing.............................................................34 Section 7.7 Direction of Proceedings and Waiver of Defaults by Majority of Noteholders.....................34 Section 7.8 Notice of Defaults.............................................................................35 Section 7.9 Undertaking to Pay Costs.......................................................................35 Section 7.10 Delay or Omission Not Waiver...................................................................36 ARTICLE VIII CONCERNING THE TRUSTEE..................................................................................36 Section 8.1 Duties and Responsibilities of Trustee.........................................................36 Section 8.2 Reliance on Documents, Opinions, Etc...........................................................37 Section 8.3 No Responsibility for Recitals, Etc............................................................39 Section 8.4 Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes...........................39 Section 8.5 Monies to be Held in Trust.....................................................................39 Section 8.6 Compensation and Expenses of Trustee...........................................................39 Section 8.7 Officer's Certificate as Evidence..............................................................40 Section 8.8 Conflicting Interests of Trustee...............................................................40 Section 8.9 Eligibility of Trustee.........................................................................40 Section 8.10 Resignation or Removal of Trustee..............................................................40 Section 8.11 Acceptance by Successor Trustee................................................................42 Section 8.12 Succession by Merger, Etc......................................................................42 Section 8.13 Limitation on Rights of Trustee as Creditor....................................................43 ARTICLE IX CONCERNING THE NOTEHOLDERS................................................................................43 Section 9.1 Action by Noteholders..........................................................................43 Section 9.2 Proof of Execution by Noteholders..............................................................43 Section 9.3 Who Are Deemed Absolute Owners.................................................................43 Section 9.4 Company-Owned Notes Disregarded................................................................44 Section 9.5 Revocation of Consents; Future Holders Bound...................................................44 ARTICLE X NOTEHOLDERS' MEETINGS......................................................................................45 Section 10.1 Purpose of Meetings............................................................................45 Section 10.2 Call of Meetings by Trustee....................................................................45 Section 10.3 Call of Meetings by Company or Noteholders.....................................................45 Section 10.4 Qualifications for Voting......................................................................46 Section 10.5 Regulations....................................................................................46 Section 10.6 Voting.........................................................................................46 Section 10.7 No Delay of Rights by Meeting..................................................................47 ARTICLE XI AMENDMENTS; SUPPLEMENTAL INDENTURES.......................................................................47 Section 11.1 Amendments; Supplemental Indentures without Consent of Noteholders.............................47 Section 11.2 Amendments; Supplemental Indentures with Consent of Noteholders................................48 Section 11.3 Effect of Amendments and Supplemental Indentures...............................................49 Section 11.4 Notation on Notes..............................................................................49 Section 11.5 Evidence of Compliance of Amendment or Supplemental Indenture to be Furnished to Trustee.......50 ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE........................................................50 Section 12.1 Company May Consolidate, Etc...................................................................50 Section 12.2 Successor Entity to be Substituted.............................................................51 Section 12.3 Opinion of Counsel to be Given Trustee.........................................................51 ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE.................................................................52 Section 13.1 Discharge of Indenture.........................................................................52 Section 13.2 Deposited Monies to be Held in Trust by Trustee................................................52 Section 13.3 Paying Agent to Repay Monies Held..............................................................52 Section 13.4 Return of Unclaimed Monies.....................................................................53 Section 13.5 Reinstatement..................................................................................53 ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..........................................53 Section 14.1 Indenture and Notes Solely Corporate Obligations...............................................53 ARTICLE XV CONVERSION OF NOTES.......................................................................................54 Section 15.1 Right to Convert...............................................................................54 Section 15.2 Exercise of Conversion Privilege; Issuance of Common Stock on Conversion.......................54 Section 15.3 Cash Payments in Lieu of Fractional Shares.....................................................56 Section 15.4 Conversion Price...............................................................................56 Section 15.5 Adjustment of Conversion Price.................................................................56 Section 15.6 Effect of Reclassification, Consolidation, Merger or Sale......................................66 Section 15.7 Taxes on Shares Issued.........................................................................67 Section 15.8 Reservation of Shares; Shares to be Fully Paid; Listing of Common Stock........................67 Section 15.9 Responsibility of Trustee......................................................................67 Section 15.10 Notice to Holders Prior to Certain Actions.....................................................68 Section 15.11 Additional Conversion Price Adjustments........................................................69 ARTICLE XVI REPURCHASE UPON A REPURCHASE EVENT.......................................................................72 Section 16.1 Repurchase Right...............................................................................72 Section 16.2 Notices; Method of Exercising Repurchase Right, Etc............................................73 Section 16.3 [Reserved......................................................................................75 Section 16.4 Certain Definitions............................................................................75 ARTICLE XVII MISCELLANEOUS PROVISIONS................................................................................77 Section 17.1 Provisions Binding on Company's Successors.....................................................77 Section 17.2 Official Acts by Successor Corporation.........................................................77 Section 17.3 Addresses for Notices, Etc.....................................................................77 Section 17.4 Governing Law..................................................................................78 Section 17.5 Evidence of Compliance with Conditions Precedent; Certificates to Trustee......................78 Section 17.6 Legal Holidays.................................................................................78 Section 17.7 No Security Interest Created...................................................................78 Section 17.8 Trust Indenture Act............................................................................78 Section 17.9 Benefits of Indenture..........................................................................79 Section 17.10 Table of Contents, Headings, Etc...............................................................79 Section 17.11 Authenticating Agent...........................................................................79 Section 17.12 Execution in Counterparts......................................................................80
INDENTURE dated as of August 28, 2001 between TiVo Inc., a Delaware corporation (hereinafter sometimes called the "Company", as more fully set forth in Section 1.1), and The Bank of New York, a New York banking corporation, as trustee (hereinafter sometimes called the "Trustee", as more fully set forth in Section 1.1). W I T N E S S E T H: WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its 7% Convertible Senior Notes due 2006 (hereinafter sometimes called the "Notes"), in an aggregate principal amount not to exceed $51,750,000 and to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, a form of assignment, a form of option to elect repayment upon a Repurchase Event, and a form of conversion notice and transfer to be borne by the Notes are to be substantially in the forms hereinafter provided for; and WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as provided in this Indenture, the valid, binding and legal obligations of the Company, and to constitute these presents a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized. NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time ARTICLE I DEFINITIONS Section 1.1 Definitions. The terms defined in this Section 1.1 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.1. All other terms used in this Indenture, which are defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Indenture. The words "herein," "hereof," "hereunder," and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other Subdivision. The terms defined in this Article include the plural as well as the singular. Affiliate: The term "Affiliate" of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder. Board Resolution: The term "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized committee thereof (to the extent permitted by applicable law), and to be in full force and effect on the date of such certification, and delivered to the Trustee. Business Day: The term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York or the city in which the Corporate Trust Office is located are authorized or obligated by law or executive order to close or be closed. Change in Control: The term "Change in Control" shall have the meaning specified in Section 16.4. close of business: The term "close of business" means 5 p.m. (New York City time). Commission: The term "Commission" shall mean the Securities and Exchange Commission. Common Stock: The term "Common Stock" shall mean any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. Subject to the provisions of Section 15.6, however, shares issuable on conversion of Notes shall include only shares of the class designated as common stock of the Company at the date of this Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption by the Company; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. Common Stock Equivalent: The term "Common Stock Equivalent" shall mean (a) any evidence of indebtedness of the Company convertible into, exchangeable for or exercisable for Common Stock; shares of capital stock (other than Common Stock) of the Company convertible into, exchangeable for or exercisable for Common Stock; or other securities of the Company convertible into, exchangeable for or exercisable for Common Stock and (b) any rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or any of the securities described in the preceding clause (a). Company: The term "Company" shall mean TiVo Inc., a Delaware corporation, and subject to the provisions of Article XII, shall include its successors and assigns. Conversion Price: The term "Conversion Price" shall have the meaning specified in Section 15.4. Corporate Trust Office: The term "Corporate Trust Office," or other similar term, shall mean the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office is, at the date as of which this Indenture is dated, located at 101 Barclay Street, Floor 21W, New York, New York 10286, Attention: Corporate Trust Administration. Current Market Price: The term "Current Market Price" shall have the meaning specified in Section 15.5(h). default: The term "default" shall mean any event that is, or after notice or passage of time, or both, would be, an Event of Default. Equity Interests: The term "Equity Interests" shall mean capital stock or warrants, options or other rights to acquire capital stock (but excluding any debt security which is convertible into, or exchangeable for, capital stock). Event of Default: The term "Event of Default" shall mean any event specified in Section 7.1, continued for the period of time, if any, and after the giving of notice, if any, therein designated. Exchange Act: The term "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Expiration Time: The term "Expiration Time" shall have the meaning specified in Section 15.5(f). Indebtedness: The term "Indebtedness" means the principal of, premium, if any, interest on (including any interest accruing after the filing of a petition by or against the Company under any bankruptcy law) and any other payment due pursuant to, any of the following, whether outstanding on the date of this Indenture or thereafter incurred or created: (a) All indebtedness of the Company for money borrowed that is evidenced by notes, debentures, bonds or other securities (including, but not limited to, those which are convertible or exchangeable for securities of the Company); (b) All reimbursement obligations of the Company under letters of credit, bank guarantees or bankers' acceptances; (c) All indebtedness of the Company under interest rate and currency swap agreements, cap, floor and collar agreements, currency spot and forward contracts and other similar agreements and arrangements; (d) All indebtedness consisting of commitment or standby fees under the Company's credit facilities or letters of credit available to the Company; (e) All obligations of the Company under leases required or permitted to be capitalized under generally accepted accounting principles; (f) All indebtedness or obligations of the kinds described in any of the preceding clauses (a), (b), (c), (d) or (e) that have been assumed by or guaranteed in any manner by the Company or in effect guaranteed (directly or indirectly) by the Company through an agreement to purchase, contingent or otherwise; and (g) All renewals, extensions, refundings, deferrals, amendments or modifications of any indebtedness or obligations of the kinds described in any of the preceding clauses (a), (b), (c), (d), (e) or (f); if and to the extent that any of the indebtedness or obligations described in the preceding clauses (a), (b), (c), (d), (e), (f), and (g) (other than the letters of credit described in the preceding clause (b) and the indebtedness described in the preceding clause (c)) would appear as a liability upon the Company's balance sheet as prepared in accordance with generally accepted accounting principles, but in the case of each of the items described in the preceding clauses (a), (b), (c), (d), (e), (f) and (g), excluding indebtedness for trade payables or the deferred purchase price of assets or services incurred by the Company in the ordinary course of business (or refinancings thereof). Indenture: The term "Indenture" shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented. Individual Accredited Investor: The term "Individual Accredited Investor" shall mean an individual "accredited investor" as defined in Rule 501(a)(5) or (6) of Regulation D under the Securities Act. Institutional Accredited Investor: The term "Institutional Accredited Investor" shall mean an institutional "accredited investor" as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act. Liquidated Damages: The term "Liquidated Damages" means all liquidated damages then owing pursuant to Section 3(e) of the Registration Rights Agreement. Note or Notes: The terms "Note" or "Notes" shall mean any Note or Notes, as the case may be, authenticated and delivered under this Indenture. Noteholder or holder: The terms "Noteholder" or "holder" as applied to any Note, or other similar terms (but excluding the term "beneficial holder"), shall mean any person in whose name at the time a particular Note is registered on the Note register. Note register: The term "Note register" shall have the meaning specified in Section 2.5(a). Officer's Certificate: The term "Officer's Certificate", when used with respect to the Company, shall mean a certificate signed by one of the President, the Chief Executive Officer, Chief Financial Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word added before or after the title "Vice President"), that is delivered to the Trustee. Each such certificate shall include the statements provided for in Section 17.5 if and to the extent required by the provisions of such Section. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, which is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 17.5 if and to the extent required by the provisions of such Section. outstanding: The term "outstanding," when used with reference to Notes, shall, subject to the provisions of Section 9.4, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except: (a) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (b) Notes, or portions thereof, for the payment, or redemption of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided that if such Notes are to be redeemed, as the case may be, prior to the maturity thereof, notice of such redemption shall have been given as provided in Section 3.2, or provision satisfactory to the Trustee shall have been made for giving such notice; (c) Notes paid pursuant to Section 2.6 and Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.6 unless proof satisfactory to the Trustee is presented that any such Notes are held by bona fide holders in due course; and (d) Notes converted into Common Stock pursuant to Article XV and Notes deemed not outstanding pursuant to Section 3.2. person: The term "person" shall mean an individual, a corporation, a limited liability company, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof. Predecessor Note: The term "Predecessor Note" of any particular Note shall mean every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.6 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed or stolen Note that it replaces. Registration Rights Agreement: The term "Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of August 28, 2001, between the Company and the initial purchasers of the Notes as such agreement may be amended from time to time. Repurchase Event: The term "Repurchase Event" shall have the meaning specified in Section 16.4. Repurchase Price: The term "Repurchase Price" has the meaning specified in Section 16.1. Responsible Officer: The term "Responsible Officer", when used with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office assigned and duly authorized by the Trustee to administer its obligations under this Indenture. Restricted Securities: The term "Restricted Securities" has the meaning specified in Section 2.5(d). Securities Act: The term "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Significant Subsidiary: The term "Significant Subsidiary" means, with respect to any person, a Subsidiary of such person that would constitute a "significant subsidiary" as such term is defined under Rule 1-02 of Regulation S-X of the Commission. Subsidiary: The term "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. Trading Day: The term "Trading Day" has the meaning specified in Section 15.5(h)(5). Trust Indenture Act: The term "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture, except as provided in Sections 11.3 and 15.6; provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term "Trust Indenture Act" shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939 as so amended. Trustee: The term "Trustee" shall mean The Bank of New York and its successors and any corporation resulting from or surviving any consolidation or merger to which it or its successors may be a party and any successor trustee at the time serving as successor trustee hereunder. The definitions of certain other terms are as specified in Article XV and Article XVI. ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES Section 2.1 Designation, Amount and Issue of Notes. The Notes shall be designated as "7% Convertible Senior Notes due 2006." Notes not to exceed the aggregate principal amount of $51,750,000 upon the execution of this Indenture, or (except pursuant to Sections 2.5, 2.6, 3.3, 15.2 and 16.2) from time to time thereafter, may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes upon the written order of the Company, signed by the Company's (a) President, Chief Executive Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title "Vice President") and (b) Chief Financial Officer, Treasurer or Assistant Treasurer or its Secretary or any Assistant Secretary, without any further action by the Company hereunder. Section 2.2 Form of Notes. The Notes and the Trustee's certificate of authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A, which is incorporated in and made a part of this Indenture. Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage. The terms and provisions contained in the form of Note attached as Exhibit A hereto shall constitute, and is hereby expressly made, a part of this Indenture and to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Section 2.3 Date and Denomination of Notes; Payments of Interest. The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Every Note shall be dated the date of its authentication, and shall bear interest from the applicable date and accrued interest shall be payable on each August 15 and February 15 of each year, commencing February 15, 2002, as specified on the face of the form of Note attached as Exhibit A hereto. Interest on the Notes shall be deemed to have commenced accruing on August 24, 2001. The person in whose name any Note (or its Predecessor Note) is registered at the close of business on any record date with respect to any interest payment date (including any Note that is converted after the record date and on or before the interest payment date) shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such Note upon any transfer, exchange or conversion subsequent to the record date and on or prior to such interest payment date; provided that, in the case of any Note, or portion thereof, called for redemption pursuant to Article III on a redemption date, or repurchased by the Company pursuant to Article XVI on a repurchase date, during the period from the close of business on the record date to the close of business on the Business Day next preceding the following interest payment date, interest shall not be paid to the person in whose name the Note, or portion thereof, is registered on the close of business on such record date, and the Company shall have no obligation to pay interest on such Note or portion thereof except to the extent required to be paid upon such redemption or repurchase in accordance with Article III or Article XVI. Interest may, at the option of the Company, be paid by check mailed to the address of such person on the Note registry; provided that, with respect to any holder of Notes with an aggregate principal amount equal to or in excess of $500,000, at the request of such holder in writing to the Company, interest on such holder's Notes shall be paid by wire transfer in immediately available funds to any bank located in the United States in accordance with the wire transfer instruction supplied by such holder from time to time to the Trustee and paying agent (if different from Trustee) at least two days prior to the applicable record date. The term "record date" with respect to any interest payment date shall mean the August 1 or February 1 preceding said August 15 or February 15, respectively. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any said August 15 or February 15 (herein called "Defaulted Interest") shall forthwith cease to be payable to the Noteholder on the relevant record date by virtue of his having been such Noteholder; and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest to be paid on each Note and the date of the payment (which shall be not less than twenty-five (25) days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be not more than fifteen (15) days and not less than ten (10) days prior to the date of the proposed payment and not less than ten (10) days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first-class postage prepaid, to each Noteholder as of such special record date at his address as it appears in the Note register, not less than ten (10) days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the persons in whose names the Notes (or their respective Predecessor Notes) were registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Section 2.4 Execution of Notes. The Notes shall be signed in the name and on behalf of the Company by the facsimile signature of its President, its Chief Executive Officer, any of its Executive or Senior Vice Presidents, or any of its Vice Presidents (whether or not designated by a number or numbers or word or words added before or after the title "Vice President") and attested by the facsimile signature of its Chief Financial Officer, Treasurer or its Assistant Treasurer, or Secretary or any of its Assistant Secretaries (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder thereof is entitled to the benefits of this Indenture. In case any officer of the Company who shall have signed any of the Notes shall cease to be such officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer. Section 2.5 Exchange and Registration of Transfer of Notes; Restrictions on Transfer. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company designated pursuant to Section 5.2 being herein sometimes collectively referred to as the "Note register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby appointed "Note registrar" for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-registrars in accordance with Section 5.2. Upon surrender for registration of transfer of any Note to the Note registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.5, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture. Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any office or agency maintained or designated pursuant to Section 5.2 for such purpose. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes which the Noteholder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding. All Notes presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Trustee, the Note registrar or any co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his attorney-in-fact duly authorized in writing. Prior and as a condition to any sale or transfer of a Note or the Common Stock issued upon conversion thereof that bears the restrictive legend set forth in Section 2.5(b) or Section 2.5(c), respectively (other than pursuant to a registration statement that has been declared effective under the Securities Act), such transferee shall, unless the Company otherwise agrees in writing and so notifies the Trustee, furnish to the Company and the Trustee a signed letter containing representations and agreements relating to restrictions on transfer substantially in the form set forth in Exhibit B to this Indenture and an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as the Company and/or the Trustee reasonably may require to confirm that any such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. If such sale or transfer of a Note or the Common Stock issued upon conversion thereof that bears the restrictive legend set forth in Section 2.5(b) or Section 2.5(c), respectively, is made pursuant to a registration statement that has been declared effective under the Securities Act, such transferor shall deliver a broker's letter or other evidence satisfactory to the Trustee and the Company as to compliance with the prospectus delivery requirements under the Securities Act. No service charge shall be charged to the Noteholder for any exchange or registration of transfer of Notes, but the Company may require payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection therewith. None of the Company, the Trustee, the Note registrar or any co-registrar shall be required to exchange or register a transfer of (a) any Notes for a period of fifteen (15) days next preceding the mailing of the notice of redemption or (b) any Notes called for redemption or, if a portion of any Note is selected or called for redemption, such portion thereof selected or called for redemption or (c) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion or (d) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in connection with a Repurchase Event. All Notes issued upon any transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange. (b) Every Note that bears or is required under this Section 2.5(b) to bear the legend set forth in this Section 2.5(b) (together with any Common Stock issued upon conversion of the Notes and required to bear the legend set forth in Section 2.5(c), collectively, the "Restricted Securities") shall be subject to the restrictions on transfer set forth in this Section 2.5(b) (including the legend set forth below), unless such restrictions on transfer shall be waived by written consent of the Company, and the holder of each such Restricted Security, by such holder's acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in Sections 2.5(b) and 2.5(c), the term "transfer" encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security. Until two (2) years after the original issuance date of any Note, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof which shall bear the legend set forth in Section 2.5(c), if applicable) shall bear a legend in substantially the following form (unless such Note has been transferred pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer), or the Note has been transferred pursuant to the exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE INDENTURE GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRUSTEE AND/OR THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRUSTEE AND/OR THE TRANSFER AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES THAT, PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to, instruct the Trustee to place the following legend on any Note held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act): THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Note for exchange to the Note registrar in accordance with the provisions of this Section 2.5, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.5(b). (c) Until two (2) years after the original issuance date of any Note, any stock certificate representing Common Stock issued upon conversion of such Note shall bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer), or the Notes from which such Common Stock was converted were transferred pursuant to a registration statement that has been declared effective under the Securities Act and which was effective at the time of such transfer, or the Common Stock has been transferred pursuant to an exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise agreed by the Company in writing with written notice thereof to the Trustee and any transfer agent for the Common Stock): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN THE EVENT THIS SECURITY BECOMES ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (`RULE 144A'), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRANSFER AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES THAT, PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRANSFER AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY THE HOLDER OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. The Company may, but is not obligated to, instruct the transfer agent for the Company's Common Stock to place the following legend on any certificate evidencing shares of Common Stock held by or transferred to an "affiliate" (as defined in Rule 501(b) of Regulation D under the Securities Act) of the Company: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.5(c). (d) Any Note or Common Stock issued upon the conversion or exchange of a Note that, prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor rule), is purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Notes or Common Stock, as the case may be, no longer being "restricted securities" (as defined under Rule 144). (e) Notwithstanding any provision of Section 2.5 to the contrary, in the event Rule 144(k) as promulgated under the Securities Act (or any successor rule) is amended to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), from and after receipt by the Trustee of the Officer's Certificate and Opinion of Counsel provided for in this Section 2.5(e), (i) each reference in Section 2.5(b) to "two (2) years" shall be deemed for all purposes hereof to be references to such changed period, (ii) each reference in Section 2.5(c) to "two (2) years" shall be deemed for all purposes hereof to be references to such changed period and (iii) all corresponding references in the Notes shall be deemed for all purposes hereof to be references to such changed period, provided that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws. As soon as practicable after the Company has knowledge of the effectiveness of any such amendment to change the two-year period under Rule 144(k) (or the corresponding period under any successor rule), unless such changes would otherwise be prohibited by, or would otherwise cause a violation of, the then-applicable securities law, the Company shall provide to the Trustee an Officer's Certificate and Opinion of Counsel informing the Trustee of the effectiveness of such amendment and the effectiveness of the foregoing changes to Sections 2.5(b) and 2.5(c) and the Notes. The provisions of this Section 2.5(e) will not be effective until such time as the Opinion of Counsel and Officer's Certificate have been received by the Trustee hereunder. This Section 2.5(e) shall apply to successive amendments to Rule 144(k) (or any successor rule) changing the holding period thereunder. (f) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof. The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. Upon the issuance of any substituted Note, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note which has matured or is about to mature or has been called for redemption or is about to be converted into Common Stock shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as will be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any paying agent or conversion agent of the destruction, loss or theft of such Note and of the ownership thereof. Every substitute Note issued pursuant to the provisions of this Section 2.6 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment or conversion of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment or conversion of negotiable instruments or other securities without their surrender. Section 2.7 Temporary Notes. Pending the preparation of definitive Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the definitive Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Notes. Without unreasonable delay the Company will execute and deliver to the Trustee or such authenticating agent definitive Notes and thereupon any or all temporary Notes may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 5.2 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of definitive Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as definitive Notes authenticated and delivered hereunder. Section 2.8 Cancellation of Notes Paid, Etc. All Notes surrendered for the purpose of payment, redemption, repurchase, conversion, exchange or registration of transfer, shall, if surrendered to the Company or any paying agent or any Note registrar or any conversion agent, be surrendered to the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. Upon written instructions of the Company, the Trustee shall dispose of canceled Notes in accordance with its customary procedures. If the Company shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation. Section 2.9 CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the "CUSIP" numbers. ARTICLE III PROVISIONAL REDEMPTION OF NOTES Section 3.1 Redemption Price. The Company may, at its option, redeem all or any part of the Notes on any date prior to maturity, upon notice as set forth in Section 3.2, and at a redemption price equal to $1,000 per $1,000 principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption, provided, however, that, prior to August 28, 2004, the Company shall only have such right of redemption if (1) the Closing Price (as defined in Section 15.5(h)) per share of the Common Stock has exceeded 200% of the Conversion Price then in effect (not including the effect of any adjustment to the Conversion Price made pursuant to Section 15.11) for at least twenty (20) Trading Days (as defined in Section 15.5(h)) within a period of thirty (30) consecutive Trading Days (the "Determination Period") and (2) within ten (10) days following the Determination Period, the Company mails to holders the notice required pursuant to Section 3.2 (the date of such notice, the "Notice Date"), and provided further that prior to the last date on which the shelf registration statement (the "Shelf Registration Statement") contemplated by the Registration Rights Agreement covering resales of the Notes and the Common Stock issuable upon conversion of the Notes is required to remain effective pursuant to the Registration Rights Agreement, such Shelf Registration Statement is effective and available for use at all times during the period beginning thirty (30) days prior to the Notice Date and ending on the earlier of the redemption date or the last date on which the Shelf Registration Statement is required to remain effective and available pursuant to the Registration Rights Agreement, and is expected to remain effective and available for use until the earlier of thirty (30) days following the redemption date or the last date on which the Shelf Registration Statement is required to remain effective pursuant to the Registration Rights Agreement. If the Company exercises such right of redemption prior to August 28, 2002, the Company shall make an additional payment in cash to holders of the redeemed Notes with respect to the Notes called for redemption, in an amount (the "Provisional Payment") equal to $70 per each $1,000 principal amount of the Note, less the amount of any interest actually paid on such Notes prior to the date of notice of redemption is mailed. The Company shall make this additional payment on all Notes called for redemption prior to August 28, 2002, including any Notes converted after the date the notice of redemption is mailed and before the provisional redemption date. Section 3.2 Notice of Redemption; Selection of Notes. In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of the Notes pursuant to Section 3.1, it shall fix a date for redemption, and it, or at its request (which must be received by the Trustee at least ten (10) Business Days prior to the date the Trustee is requested to give notice as described below unless a shorter period is agreed to by the Trustee), the Trustee in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such redemption at least sixty (60) and not more than ninety (90) days prior to the date fixed for redemption to the holders of Notes so to be redeemed as a whole or in part at their last addresses as the same appear on the Note register (provided that if the Company shall give such notice, it shall also give such notice, and notice of the Notes to be redeemed, to the Trustee). Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Each such notice of redemption shall specify the aggregate principal amount of Notes to be redeemed, the "CUSIP" number or numbers of such Notes, if any, the date fixed for redemption, the redemption price at which Notes are to be redeemed, the amount of the Provisional Payment, if any, the place or places of payment, that payment will be made upon presentation and surrender of such Notes, that interest accrued to, but excluding, the date fixed for redemption will be paid as specified in said notice, and that on and after said date interest thereon or on the portion thereof to be redeemed will cease to accrue. Such notice shall also state the current Conversion Price and the date on which the right to convert such Notes or portions thereof into Common Stock will expire. If fewer than all the Notes are to be redeemed, the notice of redemption shall identify the Notes to be redeemed. In case any Note is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be issued. On or prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 5.4) an amount of money sufficient to redeem on the redemption date all the Notes (or portions thereof) so called for redemption (other than those theretofore surrendered for conversion into Common Stock) at the appropriate redemption price, together with accrued interest to, but excluding, the date fixed for redemption; provided that if such payment is made on the redemption date it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m. New York City time, on such date. If any Note called for redemption is converted pursuant hereto, any money deposited with the Trustee or any paying agent or so segregated and held in trust for the redemption of such Note, including the Provisional Payment, if any, shall be paid to the Company upon its request, or, if then held by the Company shall be discharged from such trust. If fewer than all the Notes are to be redeemed, the Company will give the Trustee written notice in the form of an Officer's Certificate not fewer than twenty-five (25) days (or such shorter period of time as may be acceptable to the Trustee) prior to the redemption date as to the aggregate principal amount of Notes to be redeemed. If fewer than all the Notes are to be redeemed, the Trustee shall select the Notes or portions thereof to be redeemed (in principal amounts of $1,000 or integral multiples thereof), on a pro rata basis, or by a method the Trustee considers fair and appropriate (as long as such method is not prohibited by the rules of any United States national securities exchange or of an established automated over-the-counter trading market in the United States on which the Notes are then listed). If any Note selected for partial redemption is converted in part after such selection, the converted portion of such Note shall be deemed (so far as is possible) to be the portion to be selected for redemption. The Notes (or portions thereof) so selected shall be deemed duly selected for redemption for all purposes hereof, notwithstanding that any such Note is converted as a whole or in part before the mailing of the notice of redemption. Upon any redemption of less than all Notes, the Company and the Trustee may (but need not) treat as outstanding any Notes surrendered for conversion during the period of fifteen (15) days next preceding the mailing of a notice of redemption and may (but need not) treat as not outstanding any Note authenticated and delivered during such period in exchange for the unconverted portion of any Note converted in part during such period. Section 3.3 Payment of Notes Called for Redemption. If notice of redemption has been given as above provided, the Notes or portion of Notes with respect to which such notice has been given shall, unless converted into Common Stock pursuant to the terms hereof, become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with the Provisional Payment, if any, and interest accrued to, but excluding, the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Notes at the redemption price, together with the Provisional Payment, if any, and interest accrued to, but excluding, said date) interest on the Notes or portion of Notes so called for redemption shall cease to accrue and such Notes shall cease after the close of business on the Business Day next preceding the date fixed for redemption to be convertible into Common Stock and, except as provided in Sections 8.5 and 13.4, to be entitled to any benefit or security under this Indenture, and the holders thereof shall have no right in respect of such Notes except the right to receive the redemption price thereof and unpaid interest to, but excluding, the date fixed for redemption. On presentation and surrender of such Notes at a place of payment specified in said notice, the said Notes or the specified portions thereof to be redeemed shall be paid and redeemed by the Company at the applicable redemption price, together with the Provisional Payment, if any, and interest accrued thereon to, but excluding, the date fixed for redemption; provided that, if the applicable redemption date is an interest payment date, the semi-annual payment of interest becoming due on such date shall be payable to the holders of such Notes registered as such on the relevant record date subject to the terms and provisions of Section 2.3 hereof. Upon presentation of any Note redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in principal amount equal to the unredeemed portion of the Notes so presented. Notwithstanding the foregoing, the Trustee shall not redeem any Notes or mail any notice of optional redemption during the continuance of a default in payment of interest or premium on the Notes or of any Event of Default of which, in the case of any Event of Default other than under Section 7.1(a), (b) or (e), a Responsible Officer of the Trustee has actual knowledge. If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate borne by the Note and such Note shall remain convertible into Common Stock until the principal and premium, if any, shall have been paid or duly provided for. Section 3.4 Conversion Arrangement on Call for Redemption. In connection with any redemption of Notes, the Company may arrange for the purchase and conversion of any Notes not converted prior to the expiration of such conversion right by an agreement with one or more investment bankers or other purchasers to purchase such Notes by paying to the Trustee in trust for the Noteholders, on or before the date fixed for redemption, an amount not less than the applicable redemption price, together with the Provisional Payment, if any, and interest accrued to the date fixed for redemption, of such Notes. Notwithstanding anything to the contrary contained in this Article III, the obligation of the Company to pay the redemption price of such Notes, together with the Provisional Payment, if any, and interest accrued to, but excluding, the date fixed for redemption, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers. If such an agreement is entered into, a copy of which, certified as true and correct by the Secretary or Assistant Secretary of the Company will be filed with the Trustee prior to the date fixed for redemption, any Notes not duly surrendered for conversion by the holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such holders and (notwithstanding anything to the contrary contained in Article XV) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the date fixed for redemption (and the right to convert any such Notes shall be deemed to have been extended through such time), subject to payment of the above amount as aforesaid. At the direction of the Company, the Trustee shall hold and dispose of any such amount paid to it in the same manner as it would monies deposited with it by the Company for the redemption of Notes. Without the Trustee's prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Notes shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Company agrees to indemnify the Trustee from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Notes between the Company and such purchasers, including the costs and expenses incurred by the Trustee in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. ARTICLE IV [Intentionally Omitted.] ARTICLE V PARTICULAR COVENANTS OF THE COMPANY Section 5.1 Payment of Principal, Premium and Interest. The Company covenants and agrees that it will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest on each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes. Liquidated damages paid pursuant to Section 15.2 hereof, if any, shall be paid within ten (10) Business Days of the date from which such liquidated damages accrued pursuant to Section 15.2. Liquidated Damages on the Notes paid pursuant to Section 3(e) of the Registration Rights Agreement, if any, shall be paid at the times and in the manner provided therein. Each installment of interest on the Notes due on any semi-annual interest payment date may be paid by mailing checks for the interest payable to or upon the written order of the holders of Notes entitled thereto as they shall appear on the registry books of the Company, provided that, with respect to any holder of Notes with an aggregate principal amount equal to or in excess of $500,000, at the request of such holder in writing to the Company, interest on such holder's Notes shall be paid by wire transfer in immediately available funds in accordance with the wire transfer instructions supplied by such holder from time to time to the Trustee and paying agent (if different from Trustee) at least two days prior to the applicable record date. Section 5.2 Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where the Notes may be presented for registration of transfer or exchange or for presentation for payment or for conversion, redemption or repurchase and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency not designated or appointed by the Trustee. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan, The City of New York. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby initially designates the Trustee as paying agent, Note registrar and conversion agent and the Corporate Trust Office and the office or agency of the Trustee in the Borough of Manhattan, The City of New York (which initially shall be The Bank of New York, located at 101 Barclay Street, Floor 21W, New York, New York 10286, Attention: Corporate Trust Administration, as one such office or agency of the Company for each of the aforesaid purposes. So long as the Trustee is the Note registrar, the Trustee agrees to mail, or cause to be mailed, the notices set forth in Section 8.10(a) and the third paragraph of Section 8.11. Section 5.3 Appointments to Fill Vacancies in Trustee's Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder. Section 5.4 Provisions as to Paying Agent. (a) If the Company shall appoint a paying agent other than the Trustee or if the Trustee shall appoint such a paying agent, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 5.4: (1) that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or interest (including Liquidated Damages, if any) on the Notes (whether such sums have been paid to it by the Company or by any other obligor on the Notes) in trust for the benefit of the holders of the Notes; (2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Notes) to make any payment of the principal of and premium, if any, or interest (including Liquidated Damages, if any) on the Notes when the same shall be due and payable; and (3) that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust. The Company shall, on or before each due date of the principal of, premium, if any, or interest on the Notes, deposit with the paying agent a sum sufficient to pay such principal, premium, if any, or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action, provided that if such deposit is made on the due date, such deposit must be received by the paying agent by 10:00 a.m., New York City time, on such date. (b) If the Company shall act as its own paying agent, it will, on or before each due date of the principal of, premium, if any, or interest (including Liquidated Damages, if any) on the Notes, set aside, segregate and hold in trust for the benefit of the holders of the Notes a sum sufficient to pay such principal, premium, if any, or interest (including Liquidated Damages, if any) so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or any other obligor under the Notes) to make any payment of the principal of, premium, if any, or interest (including Liquidated Damages, if any) on the Notes when the same shall become due and payable. (c) Anything in this Section 5.4 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any paying agent hereunder as required by this Section 5.4, such sums to be held by the Trustee upon the trusts herein contained and upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further liability with respect to such sums. (d) Anything in this Section 5.4 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.4 is subject to Sections 13.3 and 13.4. Section 5.5 Existence. Subject to Article XII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. Section 5.6 Information Requirement. Within the period prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), the Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any holder or beneficial holder of Notes or any Common Stock issued upon conversion thereof, in each case which continue to be Restricted Securities, in connection with any sale thereof and any prospective purchaser of Notes or such Common Stock from such holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any holder or beneficial holder of the Notes or such Common Stock and it will take such further action as any holder or beneficial holder of such Notes or such Common Stock may reasonably request. Section 5.7 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted. Section 5.8 Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on January 31, 2002) an Officer's Certificate stating whether or not to the best of their knowledge the signers know of any default or Event of Default that occurred during such period. If they do, such Officer's Certificate shall describe the default or Event of Default and its status. The Company shall deliver to the Trustee, as soon as possible and in any event within five days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer's Certificate setting forth the details of such Event of Default or default and the action which the Company proposes to take with respect thereto. Section 5.9 Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture. Section 5.10 Limitation on Dividends and Distributions. So long as $12,937,500.00 or more in aggregate principal amount of the Notes remain outstanding, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly: (i) declare or pay any dividend on, or make any distribution with respect to, its Common Stock or the common stock of any of its Subsidiaries (other than such dividends or distributions by the Company made in Common Stock or of rights pursuant to any stockholders' rights plan adopted by the Company); or (ii) purchase, redeem or otherwise acquire for value any such Common Stock or any such Subsidiary's common stock; provided, however, that the foregoing provisions shall not prohibit (A) the Company's compliance with Section 1.4(b) of that certain Investment Agreement, dated as of June 9, 2000, by and between the Company and America Online, Inc., as amended as of September 11, 2000 and as of January 30, 2001, pursuant to which the Company may be required to repurchase shares of Common Stock held by America Online, Inc.; (B) the repurchase, redemption or other acquisition for value of any Common Stock in exchange for, or out of the net cash proceeds of the substantially concurrent sale of, other Equity Interests of the Company; (C) the repurchase, redemption or other acquisition for value of any Common Stock held by any employee, consultant or director of the Company or any of its Subsidiaries pursuant to any stock option plan or restricted stock plan, or any employee, consultant, director or management equity subscription agreement or stock option agreement, approved by the Board of Directors, (D) dividends or distributions by any such Subsidiary to the Company or to another such Subsidiary; or (E) dividends or distributions by any such Subsidiary to any other holder of its common stock made pro rata to all holders of such Subsidiary's common stock. Section 5.11 Limitation on Incurrence of Indebtedness of Subsidiaries. The Company shall not permit any of its Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable (including as a result of an acquisition of property or any person, any of the foregoing, an "Incurrence"), contingently or otherwise, with respect to any Indebtedness in an amount exceeding $5,000,000. The foregoing shall not prohibit (i) the Incurrence by a Subsidiary of the Company of any Indebtedness to the Company or any other Subsidiary of the Company or (ii) the Incurrence of Indebtedness by any Subsidiary of the Company to refund, refinance or repurchase outstanding Indebtedness of a Subsidiary, provided that there is not outstanding immediately thereafter Indebtedness of Subsidiaries in an aggregate amount exceeding $5,000,000. ARTICLE VI NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE Section 6.1 Noteholders' Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than fifteen (15) days after each August 15 and February 15 in each year beginning with February 15, 2002 and at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the holders of Notes as of a date not more than fifteen (15) days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note registrar. Section 6.2 Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Notes contained in the most recent list furnished to it as provided in Section 6.1 or maintained by the Trustee in its capacity as Note registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 6.1 upon receipt of a new list so furnished. (b) The rights of Noteholders to communicate with other holders of Notes with respect to their rights under this Indenture or under the Notes and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Noteholder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of holders of Notes made pursuant to the Trust Indenture Act. Section 6.3 Reports by Trustee. (a) After this Indenture has been qualified under the Trust Indenture Act, the Trustee shall transmit to holders of Notes such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each January 15 following the date of this Indenture deliver to holders a brief report, dated as of such January 15 which complies with the provisions of such Section 313(a). (b) A copy of such report shall, at the time of such transmission to holders of Notes, be filed by the Trustee with each stock exchange and automated quotation system upon which the Notes are listed and with the Company. The Company will notify the Trustee as soon as practicable when the Notes are listed on any stock exchange or automated quotation system and when any such listing is discontinued. Section 6.4 Reports by Company. (a) After this Indenture has been qualified under the Trust Indenture Act, the Company shall file with the Trustee and the Commission, and transmit to holders of Notes, such information, documents and other reports and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. (b) During any period in which the Company is not subject to Section 13 or 15(d) under the Exchange Act, the Company will deliver to the Trustee (a) as soon as available and in any event within ninety (90) days after the end of each fiscal year of the Company (i) a consolidated balance sheet of the Company and its subsidiaries as of the end of such fiscal year and the related consolidated statements of operations, stockholders' equity and cash flows for such fiscal year, all reported on by an independent public accountant of nationally recognized standing and (ii) a report containing a management's discussion and analysis of the financial condition and results of operations and a description of the business and properties of the Company and (b) as soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company (i) an unaudited consolidated management's discussion and analysis of the financial condition and results of operations of the Company for such quarter; provided that the foregoing statements and reports shall not be required for any fiscal year or quarter, as the case may be, with respect to which the Company files or expects to file with the Trustee an annual report or quarterly report, as the case may be, pursuant to the preceding paragraph of this Section 6.4. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates). ARTICLE VII DEFAULTS AND REMEDIES Section 7.1 Events of Default. In case one or more of the following Events of Default (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing: (a) default in the payment of the principal of and premium (including, without limitation, the Provisional Payment), if any, on any of the Notes as and when the same shall become due and payable either at maturity or in connection with any redemption, by declaration or otherwise; or (b) default for thirty (30) days in the payment of any installment of interest or Liquidated Damages, if any, upon any of the Notes as and when the same shall become due and payable; or (c) failure by the Company to deliver shares of Common Stock required to be delivered upon conversion of a Note in accordance with Article XV within thirty (30) calendar days of such Conversion Date; or (d) failure on the part of the Company duly to observe or perform any other of the covenants on the part of the Company in the Notes or in this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere in this Section specifically dealt with) and the continuance of such failure for a period of sixty (60) days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and a Responsible Officer of the Trustee by the holders of at least 25% in aggregate principal amount of the outstanding Notes at the time outstanding determined in accordance with Section 9.4; or (e) a default in the payment of the Repurchase Price in respect of any Note on the repurchase date therefor in accordance with the provisions of Article XVI; or (f) failure on the part of the Company to provide a written notice of a Repurchase Event in accordance with Section 16.2; or (g) failure on the part of the Company or any Significant Subsidiary to make any payment at maturity, including any applicable grace period, in respect of Indebtedness of, or guaranteed or assumed by, the Company or any Significant Subsidiary, in a principal amount then outstanding in excess of U.S. $5,000,000, and the continuance of such failure for a period of thirty (30) days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the holders of not less than 25% in aggregate principal amount of the Notes then outstanding, a written notice specifying such default and requiring the Company to cause such default to be cured or waived and stating that such notice is a "Notice of Default" hereunder; or (h) default on the part of the Company or any Significant Subsidiary with respect to any Indebtedness of, or guaranteed or assumed by, the Company or any Significant Subsidiary, which default results in the acceleration of Indebtedness in a principal amount then outstanding in excess of U.S. $5,000,000, and such Indebtedness shall not have been discharged or such acceleration shall not have been rescinded or annulled for a period of thirty (30) days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the holders of not less than 25% in aggregate principal amount of the Notes then outstanding, a written notice specifying such default and requiring the Company to cause such Indebtedness to be discharged or cause such default to be cured or waived or such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" hereunder; or (i) the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or (j) an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of ninety (90) consecutive days; then, and in each and every such case (other than an Event of Default specified in Section 7.1(i) or (j) with respect to the Company), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding hereunder determined in accordance with Section 9.4, by notice in writing to the Company (and to the Trustee if given by Noteholders), may declare the principal of and premium, if any, on all the Notes and the interest accrued thereon (including Liquidated Damages to the extent accrued and unpaid) to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Notes contained to the contrary notwithstanding. If an Event of Default specified in Section 7.1(i) or (j) occurs and is continuing with respect to the Company, the principal of all the Notes and the interest accrued thereon shall be immediately due and payable. Notwithstanding the foregoing if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all Notes and the principal of and premium, if any, on any and all Notes which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Notes, to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 8.6, and if any and all defaults under this Indenture, other than the nonpayment of principal of and premium, if any, and accrued interest on Notes which shall have become due by acceleration, shall have been cured or waived pursuant to Section 7.7, then and in every such case the holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon. The Company shall notify the Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any default or Event of Default and shall deliver to the Trustee a statement specifying such default or Event of Default and the action the Company has taken, is taking or proposes to take with respect thereto. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Notes, and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the holders of Notes, and the Trustee shall continue as though no such proceeding had been instituted. Section 7.2 Payments of Notes on Default; Suit Therefor. The Company covenants that (a) in case default shall be made in the payment by the Company of any installment of interest upon any of the Notes as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (b) in case default shall be made in the payment of the principal of or premium, if any, on any of the Notes as and when the same shall have become due and payable, whether at maturity of the Notes or in connection with any redemption or repurchase, by declaration under this Indenture or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Notes, the whole amount that then shall have become due and payable on all such Notes for principal and premium, if any, or interest, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest at the rate borne by the Notes; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder other than through its negligence or bad faith. Until such demand by the Trustee, the Company may pay the principal of and premium, if any, and interest on the Notes to the registered holders, whether or not the Notes are overdue. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on the Notes and collect in the manner provided by law out of the property of the Company or any other obligor on the Notes wherever situated the monies adjudged or decreed to be payable. In the case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the case of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 7.2, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if any, and interest (including Liquidated Damages, if any) owing and unpaid in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee and of the Noteholders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due the Trustee under Section 8.6; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Noteholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property which the holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise. All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the holders of the Notes. In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Notes, and it shall not be necessary to make any holders of the Notes parties to any such proceedings. Section 7.3 Application of Monies Collected by Trustee. Any monies collected by the Trustee pursuant to this Article VII shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid: First: To the payment of all amounts due the Trustee under Section 8.6; Second: In case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on the Notes in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by the Notes, such payments to be made ratably to the persons entitled thereto; Third: In case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid, to the payment of the whole amount then owing and unpaid upon the Notes for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Notes; and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest; and Fourth: To the payment of the remainder, if any, to the Company. Section 7.4 Proceedings by Noteholder. No holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the holders of not less than 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such indemnity as may be reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 7.7; it being understood and intended, and being expressly covenanted by the taker and holder of every Note with every other taker and holder and the Trustee, that no one or more holders of Notes shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of Notes, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Notes (except as otherwise provided herein). For the protection and enforcement of this Section 7.4, each and every Noteholder and the Trustee shall be entitled to such relief as can be given either at law or in equity. Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any holder of any Note to receive payment of the principal of and premium, if any, and interest (including Liquidated Damages to the extent accrued but unpaid) on such Note, on or after the respective due dates expressed in such Note, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company shall not be impaired or affected without the consent of such holder. Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any Note, without the consent of either the Trustee or the holder of any other Note, in his own behalf and for his own benefit, may enforce, and may institute and maintain any proceeding suitable to enforce, his rights of conversion as provided herein. Section 7.5 Proceedings by Trustee. In case of an Event of Default the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. Section 7.6 Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.6, all powers and remedies given by this Article VII to the Trustee or to the Noteholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the Notes to exercise any right or power accruing upon any default or Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or any acquiescence therein; and, subject to the provisions of Section 7.4, every power and remedy given by this Article VII or by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Noteholders. Section 7.7 Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 9.4 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; provided, however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. The holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 9.4 may on behalf of the holders of all of the Notes waive any past default or Event of Default hereunder and its consequences except (i) a default in the payment of interest or premium, if any, on, or the principal of, the Notes when due, (ii) a failure by the Company to convert any Notes into Common Stock or (iii) a default in respect of a covenant or provisions hereof which under Article XI cannot be modified or amended without the consent of all affected holders of Notes then outstanding. Upon any such waiver the Company, the Trustee and the holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 7.7, said default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Section 7.8 Notice of Defaults. The Trustee shall, within ninety (90) days after the occurrence of a default, mail to all Noteholders, as the names and addresses of such holders appear upon the Note register, notice of all defaults actually known to a Responsible Officer, unless such defaults shall have been cured or waived before the giving of such notice; and provided that, except in the case of default in the payment of the principal of, or premium, if any, or interest (including Liquidated Damages to the extent accrued but unpaid) on any of the Notes, including without limiting the generality of the foregoing any default in the payment of any Repurchase Price or in the payment of any amount due in connection with any redemption of Notes, then in any such event the Trustee shall be protected in withholding such notice if and so long as a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Noteholders. Section 7.9 Undertaking to Pay Costs. All parties to this Indenture agree, and each holder of any Note by his acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 7.9 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 9.4, or to any suit instituted by any Noteholder for the enforcement of the payment of the principal of or premium, if any, or interest (including Liquidated Damages to the extent accrued but unpaid) on any Note (including, but not limited to, the redemption price or repurchase price with respect to the Notes being redeemed or repurchased as provided in this Indenture) on or after the due date expressed in such Note or to any suit for the enforcement of the right to convert any Note in accordance with the provisions of Article XV. Section 7.10 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the holders of Notes, as the case may be. ARTICLE VIII CONCERNING THE TRUSTEE Section 8.1 Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (a) prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred: (1) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture and, after it has been qualified thereunder, the Trust Indenture Act, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture and the Trust Indenture Act against the Trustee; and (2) in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (c) the Trustee shall not be liable to any Noteholder with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the Notes at the time outstanding determined as provided in Section 9.4 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and (d) whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 8.2 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 8.1: (a) the Trustee may conclusively rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer's Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) the Trustee may consult with counsel of its selection, and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Noteholders pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; (e) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity reasonably satisfactory to the Trustee from the Noteholders against such expenses or liability as a condition to so proceeding; the reasonable expenses of every such examination shall be paid by the Company or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Company upon demand; (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder; (g) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (h) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture; and (i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder. In no event shall the Trustee be liable for any consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action other than through the Trustee's willful misconduct or gross negligence. Section 8.3 No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee's certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture. Section 8.4 Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. The Trustee, any paying agent, any conversion agent or Note registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not Trustee, paying agent, conversion agent or Note registrar. Section 8.5 Monies to be Held in Trust. Subject to the provisions of Section 13.4, all monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed in writing from time to time by the Company and the Trustee. Section 8.6 Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence, willful misconduct or bad faith. The Company also covenants to indemnify the Trustee or any predecessor Trustee in any capacity under this Indenture and its agents and any authenticating agent for, and to hold them harmless against, any and all loss, damages, claims, liability or expense incurred without negligence, willful misconduct or bad faith on the part of the Trustee or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this trust or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim (whether asserted by the Company, a Holder or any other Person) of liability in the premises. The obligations of the Company under this Section 8.6 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a lien upon all property and funds held or collected by the Trustee as such, except, subject to the effect of Sections 4.3 and 7.5, funds held in trust herewith for the benefit of the holders of particular Notes prior to the date of the accrual of such unpaid compensation or indemnifiable claim. The obligation of the Company under this Section shall survive the satisfaction and discharge of this Indenture. The indemnification provided in this Section 8.6 shall extend to the officers, directors, agents and employees of the Trustee. When the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 7.1(i) or (j) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws. Section 8.7 Officer's Certificate as Evidence. Except as otherwise provided in Section 8.1, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer's Certificate delivered to the Trustee, and such Officer's Certificate, in the absence of negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof. Section 8.8 Conflicting Interests of Trustee. After qualification under the Trust Indenture Act, if the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. Section 8.9 Eligibility of Trustee. There shall at all times be a Trustee hereunder that shall be a person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus (together with its corporate parent) of at least $50,000,000. If such person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 8.10 Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving written notice of such resignation to the Company and by mailing notice thereof to the holders of Notes at their addresses as they shall appear on the Note register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment sixty (60) days after the mailing of such notice of resignation to the Noteholders, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Noteholder who has been a bona fide holder of a Note or Notes for at least six months may, subject to the provisions of Section 7.9, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (1) the Trustee shall fail to comply with Section 8.8 within a reasonable time after written request therefor by the Company or by any Noteholder who has been a bona fide holder of a Note or Notes for at least six months, or (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.9 and shall fail to resign after written request therefor by the Company or by any such Noteholder, or (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company may by a Board resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 7.9, any Noteholder who has been a bona fide holder of a Note or Notes for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. (c) The holders of a majority in aggregate principal amount of the Notes at the time outstanding may at any time remove the Trustee and nominate a successor trustee which shall be deemed appointed as successor trustee unless within ten (10) days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Noteholder, upon the terms and conditions and otherwise as in Section 8.10(a) provided, may, at the expense of the Company, petition any court of competent jurisdiction for an appointment of a successor trustee. (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 8.11. Section 8.11 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 8.6, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property and funds held or collected by such trustee as such, except for funds held in trust for the benefit of holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 8.6. No successor trustee shall accept appointment as provided in this Section 8.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 8.8 and be eligible under the provisions of Section 8.9. Upon acceptance of appointment by a successor trustee as provided in this Section 8.11, each of the Company and the former trustee shall mail or cause to be mailed notice of the succession of such trustee hereunder to the holders of Notes at their addresses as they shall appear on the Note register. If the Company fails to mail such notice within ten (10) days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company. Section 8.12 Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the trust created by this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that in the case of any corporation succeeding to all or substantially all of the corporate trust business of the Trustee such corporation shall be qualified under the provisions of Section 8.8 and eligible under the provisions of Section 8.9. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. Section 8.13 Limitation on Rights of Trustee as Creditor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes), after qualification under the Trust Indenture Act, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of the claims against the Company (or any such other obligor). ARTICLE IX CONCERNING THE NOTEHOLDERS Section 9.1 Action by Noteholders. Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in writing, or (b) by the record of the holders of Notes voting in favor thereof at any meeting of Noteholders duly called and held in accordance with the provisions of Article X, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Noteholders. Whenever the Company or the Trustee solicits the taking of any action by the holders of the Notes, the Company or the Trustee may fix in advance of such solicitation, a date as the record date for determining holders entitled to take such action. The record date shall be not more than fifteen (15) days prior to the date of commencement of solicitation of such action. Section 9.2 Proof of Execution by Noteholders. Subject to the provisions of Sections 8.1, 8.2 and 10.5, proof of the execution of any instrument by a Noteholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note register or by a certificate of the Note registrar. The record of any Noteholders' meeting shall be proved in the manner provided in Section 10.6. Section 9.3 Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any paying agent, any conversion agent and any Note registrar may deem the person in whose name such Note shall be registered upon the Note register to be, and may treat him as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of, premium, if any, and interest (including Liquidated Damages to the extent accrued but unpaid) on such Note, for conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any authenticating agent nor any paying agent nor any conversion agent nor any Note registrar shall be affected by any notice to the contrary. All such payments so made to any holder for the time being, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Note. Section 9.4 Company-Owned Notes Disregarded. In determining whether the holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company or any other obligor on the Notes or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Notes shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes which a Responsible Officer actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 9.4 if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Notes and that the pledgee is not the Company, any other obligor on the Notes or a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer's Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described persons; and, subject to Section 8.1, the Trustee shall be entitled to accept such Officer's Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination. Section 9.5 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.1, of the taking of any action by the holders of the percentage in aggregate principal amount of the Notes specified in this Indenture in connection with such action, any holder of a Note which is shown by the evidence to be included in the Notes the holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 9.2, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the holder of any Note shall be conclusive and binding upon such holder and upon all future holders and owners of such Note and of any Notes issued in exchange or substitution therefor, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor. ARTICLE X NOTEHOLDERS' MEETINGS Section 10.1 Purpose of Meetings. A meeting of Noteholders may be called at any time and from time to time pursuant to the provisions of this Article X for any of the following purposes: (1) to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Noteholders pursuant to any of the provisions of Article VII; (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article VIII; (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 11.2; (4) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law; or (5) to take any other action authorized by this Indenture or under applicable law. Section 10.2 Call of Meetings by Trustee. The Trustee may at any time call a meeting of Noteholders to take any action specified in Section 10.1, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the Noteholders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 9.1, shall be mailed to holders of Notes at their addresses as they shall appear on the Note register. Such notice shall also be mailed to the Company. Such notices shall be mailed not less than twenty (20) nor more than ninety (90) days prior to the date fixed for the meeting. Any meeting of Noteholders shall be valid without notice if the holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice. Section 10.3 Call of Meetings by Company or Noteholders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the holders of at least 10% in aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Noteholders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within twenty (20) days after receipt of such request, then the Company or such Noteholders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 10.1, by mailing notice thereof as provided in Section 10.2. Section 10.4 Qualifications for Voting. To be entitled to vote at any meeting of Noteholders a person shall (a) be a holder of one or more Notes on the record date pertaining to such meeting or (b) be a person appointed by an instrument in writing as proxy by a holder of one or more Notes. The only persons who shall be entitled to be present or to speak at any meeting of Noteholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. Section 10.5 Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Noteholders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Noteholders as provided in Section 10.3, in which case the Company or the Noteholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the holders of a majority in principal amount of the Notes represented at the meeting and entitled to vote at the meeting. Subject to the provisions of Section 9.4, at any meeting each Noteholder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by him or instruments in writing as aforesaid duly designating him as the proxy to vote on behalf of other Noteholders. Any meeting of Noteholders duly called pursuant to the provisions of Section 10.2 or 10.3 may be adjourned from time to time by the holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice. Section 10.6 Voting. The vote upon any resolution submitted to any meeting of Noteholders shall be by written ballot on which shall be subscribed the signatures of the holders of Notes or of their representatives by proxy and the principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Noteholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 10.2. The record shall show the principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. Section 10.7 No Delay of Rights by Meeting. Nothing contained in this Article X shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Noteholders or any rights expressly or implicitly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Noteholders under any of the provisions of this Indenture or of the Notes. ARTICLE XI AMENDMENTS; SUPPLEMENTAL INDENTURES Section 11.1 Amendments; Supplemental Indentures without Consent of Noteholders. The Company, when authorized by the resolutions of the Board of Directors, and the Trustee may from time to time and at any time enter into amendments or indentures supplemental hereto for one or more of the following purposes: (a) to make provision with respect to the conversion rights of the holders of Notes pursuant to the requirements of Section 15.6; (b) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Notes, any property or assets; (c) to evidence the succession of another corporation, limited liability company, partnership or trust to the Company, or successive successions, and the assumption by the successor corporation, limited liability company, partnership or trust of the covenants, agreements and obligations of the Company pursuant to Article XII; (d) to add to the covenants of the Company such further covenants, restrictions or conditions as the Board of Directors and the Trustee shall consider to be for the benefit of the holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default; (e) to provide for the issuance under this Indenture of Notes in coupon form (including Notes registrable as to principal only) and to provide for exchangeability of such Notes with the Notes issued hereunder in fully registered form and to make all appropriate changes for such purpose; (f) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not materially adversely affect the interests of the holders of the Notes; (g) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes; or (h) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualifications of this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted. The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder; provided, however, the Trustee shall not be obligated to and may, in its discretion, enter into any supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any amendment or supplemental indenture authorized by the provisions of this Section 11.1 may be executed by the Company and the Trustee without the consent of the holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 11.2. Section 11.2 Amendments; Supplemental Indentures with Consent of Noteholders. With the consent (evidenced as provided in Article IX) of the holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding (determined in accordance with Section 9.4), the Company, when authorized by the resolutions of the Board of Directors, and the Trustee may from time to time and at any time enter into amendments or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the holders of the Notes; provided, however, that no such amendment or supplemental indenture shall (i) extend the fixed maturity of any Note, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any amount payable on redemption or repurchase thereof, impair, or change in any respect adverse to the holder of Notes, the obligation of the Company to repurchase any Note at the option of the holder upon the happening of a Repurchase Event, or impair or adversely affect the right of any Noteholder to institute suit for the payment thereof, or change the currency in which the Notes are payable, or impair or change in any respect adverse to the Noteholders the right to convert the Notes into Common Stock subject to the terms set forth herein, including Section 15.6, or subordinate in right of payment the Notes to any other Indebtedness, without the consent of the holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all Notes then outstanding. Upon the request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any such amendment or supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Noteholders as aforesaid, the Trustee shall join with the Company in the execution of such amendment or supplemental indenture unless such amendment or supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in is discretion, but shall not be obligated to, enter into such amendment or supplemental indenture. It shall not be necessary for the consent of the Noteholders under this Section 11.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Section 11.3 Effect of Amendments and Supplemental Indentures. Any amendment or supplemental indenture executed pursuant to the provisions of this Article XI shall comply with the Trust Indenture Act, as then in effect; provided that this Section 11.3 shall not require such amendment or supplemental indenture or the Trustee to be qualified under the Trust Indenture Act prior to the time such qualification is in fact required under the terms of the Trust Indenture Act or the Indenture has been qualified under the Trust Indenture Act, nor shall it constitute any admission or acknowledgement by any party to such amendment or supplemental indenture that any such qualification is required prior to the time such qualification is in fact required under the terms of the Trust Indenture Act or the Indenture has been qualified under the Trust Indenture Act. Upon the execution of any amendment or supplemental indenture pursuant to the provisions of this Article XI, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Notes shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. Section 11.4 Notation on Notes. Notes authenticated and delivered after the execution of any amendment or supplemental indenture pursuant to the provisions of this Article XI may bear a notation in form approved by the Trustee as to any matter provided for in such amendment or supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such amendment or supplemental indenture may, at the Company's expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.11) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding. Section 11.5 Evidence of Compliance of Amendment or Supplemental Indenture to be Furnished to Trustee. The Trustee, subject to the provisions of Sections 8.1 and 8.2, shall receive an Officer's Certificate and an Opinion of Counsel as conclusive evidence that any amendment or supplemental indenture executed pursuant hereto complies with the requirements of this Article XI. ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE Section 12.1 Company May Consolidate, Etc. on Certain Terms. The Company shall not, directly or indirectly, consolidate with or merge with or into any other Person or sell, lease, convey or transfer all or substantially all its assets, whether in a single transaction or a series of related transactions, to any person or group of affiliated persons unless: (a) either (i) in the case of a merger or consolidation that does not involve a transfer of all or substantially all of the Company's properties and assets, the Company is the surviving entity or (ii) in case the Company shall consolidate with or merge into another person or sell, lease, convey or transfer all or substantially all assets, whether in a single transaction or a series of related transactions, to any person, the person formed by such consolidation or into which the Company is merged, or the person which acquires by sale, conveyance or transfer, or which leases the properties and assets of the Company substantially as an entirety, shall be a corporation, limited liability company, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest (including Liquidated Damages, if any) on all of the Notes as applicable, and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed and shall have provided for the applicable conversion rights set forth in Section 15.6 and the repurchase rights set forth in Article XVI; (b) immediately after giving effect to such transaction, no Event of Default, and no event that after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (c) the Company has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with, together with any documents required under Article IX. Section 12.2 Successor Entity to be Substituted. In case of any such consolidation, merger, sale, conveyance or lease in accordance with Section 12.1, and, where required in accordance with Section 12.1(a) upon the assumption by the successor entity, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and premium, if any, and interest (including Liquidated Damages, if any) on all of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such successor entity shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of TiVo Inc. any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor entity instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Notes which such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or lease, the person named as the "Company" in the first paragraph of this Indenture or any successor which shall thereafter have become such in the manner prescribed in this Article XII may be dissolved, wound up and liquidated at any time thereafter and such person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture. In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate. Section 12.3 Opinion of Counsel to be Given Trustee. The Trustee, subject to Sections 8.1 and 8.2, shall receive an Officer's Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article XII. ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE Section 13.1 Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Notes theretofore authenticated (other than any Notes that have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon redemption of all of the Notes (other than any Notes which shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and premium, if any, and interest (including Liquidated Damages, if any) due or to become due to such date of maturity or redemption date, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i) remaining rights of registration of transfer, substitution and exchange and conversion of Notes, (ii) rights hereunder of Noteholders to receive payments of principal of and premium, if any, and interest on, the Notes and the other rights, duties and obligations of Noteholders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (iii) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, on demand of the Company accompanied by an Officer's Certificate and an Opinion of Counsel as required by Section 17.5 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agreeing to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Notes. Section 13.2 Deposited Monies to be Held in Trust by Trustee. Subject to Section 13.4, all monies deposited with the Trustee pursuant to Section 13.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company if acting as its own paying agent), to the holders of the particular Notes for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest and premium, if any. Section 13.3 Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this Indenture, all monies then held by any paying agent of the Notes (other than the Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such monies. Section 13.4 Return of Unclaimed Monies. Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of, premium, if any, or interest on Notes and not applied but remaining unclaimed by the holders of Notes for two years after the date upon which the principal of, premium, if any, or interest (including Liquidated Damages, if any) on such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on written demand and all liability of the Trustee shall thereupon cease with respect to such monies; and the holder of any of the Notes shall thereafter look only to the Company for any payment which such holder may be entitled to collect unless an applicable abandoned property law designates another person. Section 13.5 Reinstatement. If (i) the Trustee or the paying agent is unable to apply any money in accordance with Section 13.2 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application and (ii) the holders of at least a majority in principal amount of the then outstanding Notes so request by written notice to the Trustee, the Company's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.1 until such time as the Trustee or the paying agent is permitted to apply all such money in accordance with Section 13.2; provided, however, that if the Company makes any payment of interest on or principal of any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the holders of such Notes to receive such payment from the money held by the Trustee or paying agent. ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS Section 14.1 Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or premium, if any, or interest (including Liquidated Damages, if any) on any Note, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes. ARTICLE XV CONVERSION OF NOTES Section 15.1 Right to Convert. Subject to and upon compliance with the provisions of this Indenture, the holder of any Note shall have the right, at his option, at any time following the date of original issuance of the Notes and prior to the close of business on August 15, 2006 (except that, with respect to any Note or portion of a Note that shall be called for redemption, such right shall terminate, except as provided in the fifth paragraph of Section 15.2 and Section 3.4, at the close of business on the Business Day next preceding the date fixed for redemption of such Note or portion of a Note unless the Company shall default in payment due upon redemption thereof), to convert the principal amount of any such Note, or any portion of such principal amount which is $1,000 or an integral multiple thereof, into that number of fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) obtained by dividing the principal amount of the Note or portion thereof surrendered for conversion by the Conversion Price in effect at such time, by surrender of the Note so to be converted in whole or in part in the manner provided in Section 15.2. A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article XV. A Note with respect to which a holder has delivered a notice in accordance with Section 16.2 regarding such holder's election to require the Company to repurchase such holder's Notes following the occurrence of a Repurchase Event may be converted in accordance with this Article XV only if such holder withdraws such notice by delivering a written notice of withdrawal to the Company prior to the close of business on the last Business Day prior to the day fixed for repurchase. Section 15.2 Exercise of Conversion Privilege; Issuance of Common Stock on Conversion. In order to exercise the conversion privilege with respect to any Note in definitive form, the holder of any such Note to be converted in whole or in part shall surrender such Note, duly endorsed, at an office or agency maintained by the Company pursuant to Section 5.2, accompanied by the funds, if any, required by the penultimate paragraph of this Section 15.2, shall give written notice of conversion in the form provided on the Notes (or such other notice that is acceptable to the Company), shall provide copies of such notice via facsimile to the Company, attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600), and shall provide such additional documentation or certification as the Company and/or the Trustee may reasonably request to the office or agency specified in said notice that the holder elects to convert such Note or such portion thereof. Such notice shall also state the name or names (with address) in which the shares of Common Stock which shall be issuable on such conversion shall be issued, and shall be accompanied by transfer taxes, if required pursuant to Section 15.7. Each such Note surrendered for conversion shall, unless the shares issuable on conversion are to be issued in the same name as the registration of such Note, be duly endorsed by, or be accompanied by instruments of transfer (including a broker's letter regarding compliance with the prospectus delivery requirement, if applicable) in form satisfactory to the Company duly executed by, the holder or his duly authorized attorney. The Company shall use its reasonable best efforts to, within three (3) Business Days after the Conversion Date (as defined below) with respect to any Note, subject to compliance with any restrictions on transfer if shares issuable on conversion are to be issued in a name other than that of the Noteholder (as if such transfer were a transfer of the Note or Notes (or portion thereof) so converted), issue and deliver to such holder at the office or agency maintained by the Company for such purpose pursuant to Section 5.2, the number of full shares of Common Stock issuable upon the conversion of such Note or portion thereof in accordance with the provisions of this Article and a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such conversion, as provided in Section 15.3 (which payment, if any, shall be paid no later than ten (10) Business Days after the Conversion Date). In case any Note of a denomination greater than $1,000 shall be surrendered for partial conversion, and subject to Section 2.3, the Company shall execute and the Trustee shall authenticate and deliver to the holder of the Note so surrendered, without charge to him, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note. If the Company shall not have delivered the number of shares of Common Stock issued upon conversion of Notes by any holder within ten (10) Business Days after the Conversion Date with respect to such Notes, the Company shall pay liquidated damages to such holder in the amount of one percent (1%) of the outstanding principal amount of Notes so converted by such holder. The conversion shall be deemed to have been effected as to any such Note (or portion thereof) on the date on which the requirements set forth above in this Section 15.2 have been satisfied as to such Note (or portion thereof) (such date, the "Conversion Date"), and the person in whose name any shares of Common Stock shall be issuable upon such conversion shall be deemed to have become on the Conversion Date the holder of record of the shares represented thereby; provided, however, that any such surrender on any date when the stock transfer books of the Company shall be closed shall constitute the person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Price in effect on the date upon which such Note shall be surrendered. For purposes of determining satisfaction of the requirement set forth above with respect to the Conversion Date for any Note, any facsimile required to be sent shall be deemed to have been sent on a given day if such facsimile was sent before 11:00 a.m., New York City time, on such date, to the number listed above (unless a different number is specified in a notice filed with the Trustee and mailed by the Trustee, at the Company's expense, to each holder of the Notes at such holder's address appearing in the Note register, as provided for in Section 2.5 of this Indenture) and a confirmation of transmission of such facsimile is obtained. The Company shall pay in cash, on any Note or portion thereof surrendered for conversion during the period from the close of business on any interest payment date to which interest has been fully paid through the close of business on the Business Day preceding the record date for the next such interest payment date, accrued and unpaid interest, if any, to, but excluding, the date of conversion. Any such payment of interest shall be made with respect to such Note within ten (10) Business Days after the Conversion Date. Notwithstanding the foregoing, any Note or portion thereof surrendered for conversion during the period from the close of business on the record date for any interest payment date through the close of business on the Business Day next preceding such interest payment date shall (unless such Note or portion thereof being converted shall have been called for redemption pursuant to a redemption notice mailed to the Noteholders in accordance with Section 3.2 or shall have become due prior to such interest payment date as a result of a Repurchase Event) be accompanied by payment, in New York Clearing House funds or other funds acceptable to the Company, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided, however, that no such payment need be made if there shall exist at the time of conversion a default in the payment of interest on the Notes. Except as provided in this Section 15.2, no adjustment shall be made for interest accrued on any Note converted or for dividends on any shares issued upon the conversion of such Note as provided in this Article. Section 15.3 Cash Payments in Lieu of Fractional Shares. No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon conversion of Notes. If more than one Note shall be surrendered for conversion at one time by the same holder, the number of full shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered for conversion. If any fractional share of stock otherwise would be issuable upon the conversion of any Note or Notes, the Company shall calculate and pay a cash adjustment in lieu of such fractional share at the current market value thereof to the holder of Notes. The current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the day on which the Notes (or specified portions thereof) are deemed to have been converted and such Closing Price shall be determined as provided in Section 15.5(h). Section 15.4 Conversion Price. The conversion price shall be as specified in the form of Note (herein called the "Conversion Price") attached as Exhibit A hereto, subject to adjustment as provided in this Article XV. Section 15.5 Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows: (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 15.5(h)) fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 15.5(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared. (b) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (c) Subject to Section 15.11(b) hereof, in case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for the determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price (as defined in Section 15.5(h)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares that the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such Current Market Price, and of which the denominator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. (d) Subject to Section 15.11(b) hereof, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than any dividends or distributions to which Section 15.5(a) applies) or evidences of its indebtedness or other assets (including securities, but excluding (1) any rights or warrants referred to in Section 15.5(c) and (2) dividends and distributions paid exclusively in cash (except as set forth in Section 15.5(e) and (f), (the foregoing hereinafter in this Section 15.5(d) called the "Securities")), unless the Company elects to reserve such Securities for distribution to the Noteholders upon conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date (as defined in Section 15.5(h) for such distribution of the Securities) then, in each such case, the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Record Date (as defined in Section 15.5(h)) with respect to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in Section 15.5(h)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of Securities such holder would have received had such holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 15.5(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 15.5(h) to the extent possible, unless the Board of Directors in a board resolution determines that determining the fair market value during the Reference Period would not be in the best interest of the Noteholder. In the event that the Company implements a new stockholder rights plan, such rights plan shall provide that upon conversion of the Notes the holders will receive, in addition to the Common Stock issuable upon such conversion, the rights issued under such rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion). Any distribution of rights or warrants pursuant to a stockholder rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants for the purposes of this Section 15.5(d). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.5(d) (and no adjustment to the Conversion Price under this Section 15.5(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 15.5(d), (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 15.5(d) and Sections 15.5(a) and (c), any dividend or distribution to which this Section 15.5(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 15.5(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock or rights or warrants to which Section 15.5(c) applies (and any Conversion Price reduction required by this Section 15.5(e) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 15.5(a) and (c) with respect to such dividend or distribution shall then be made, except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "Record Date fixed for such determination" and "Record Date" within the meaning of Section 15.5(a) and as "the date fixed for the determination of stockholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 15.5(c) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 15.5(a). (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 15.6 applies or as part of a distribution referred to in Section 15.5(d)), in an aggregate amount that, combined together with (1) the aggregate amount of any other such distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 15.5(e) has been made, and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 15.5(f) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 15.5(h)) on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such Record Date by a fraction (i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the Record Date and (ii) the denominator of which shall be equal to the Current Market Price on such date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of cash such holder would have received had such holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. (f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (1) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its subsidiaries for all or any portion of the Common Stock expiring within the twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this Section 15.5(f) has been made and (2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within twelve (12) months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to Section 15.5(e) has been made, exceeds 10% of the product of the Current Market Price (determined as provided in Section 15.5(h)) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the date of the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction (if any) to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such tender offer had not been made. If the application of this Section 15.5(f) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 15.5(f). (g) In case of a tender or exchange offer made by a person other than the Company or any Subsidiary for an amount that increases the offeror's ownership of Common Stock to more than 25% of the Common Stock outstanding and shall involve the payment by such person of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors in good faith, whose determination shall be conclusive, and described in a resolution of the Board of Directors) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of the Expiration Time the Board of Directors is not recommending rejection of the offer, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that such person is obligated to purchase shares pursuant to any such tender or exchange offer, but such person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 15.5(g) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article XII. (h) For purposes of this Section 15.5 and Section 15.11, the following terms shall have the meaning indicated: (1) "Closing Price" with respect to any securities on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in each case on the Nasdaq National Market or New York Stock Exchange, as applicable, or, if such security is not listed or admitted to trading on such National Market or Exchange, on the principal national security exchange or quotation system on which such security is quoted or listed or admitted to trading, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of such security on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or if not so available, in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or a price determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution. (2) "Current Market Price" shall mean the average of the daily Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to the date in question; provided, however, that (1) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Price pursuant to Section 15.5(a), (b), (c), (d), (e), (f) or (g) occurs during such ten (10) consecutive Trading Days, the Closing Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the same fraction by which the Conversion Price is so required to be adjusted as a result of such other event, (2) if the "ex" date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Price pursuant to Section 15.5(a), (b), (c), (d), (e), (f) or (g) occurs on or after the "ex" date for the issuance or distribution requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event, and (3) if the "ex" date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (1) or (2) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 15.5(d), (f) or (g), whose determination shall be conclusive and described in a Board Resolution) of the evidences of indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the close of business on the day before such "ex" date. For purposes of any computation under Sections 15.5(f) or (g), the Current Market Price of the Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of Common Stock for such day and the next two succeeding Trading Days; provided, however, that if the "ex" date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Conversion Price pursuant to Section 15.5(a), (b), (c), (d), (e), (f) and (g) occurs on or after the Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (3) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such offer. Notwithstanding the foregoing, whenever successive adjustments to the Conversion Price are called for pursuant to this Section 15.5, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 15.5 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. (3) "fair market value" shall mean the amount which a willing buyer would pay a willing seller in an arm's length transaction. (4) "Record Date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). (5) "Trading Day" shall mean (x) if the applicable security is listed or admitted for trading on the New York Stock Exchange or another national security exchange, a day on which the New York Stock Exchange or such other national security exchange, as applicable, is open for business or (y) if the applicable security is quoted on the Nasdaq National Market, a day on which trades may be made thereon or (z) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (i) The Company may make such reductions in the Conversion Price, in addition to those required by Sections 15.5(a), (b), (c), (d), (e), (f) and (g) and Section 15.11, as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during the period and the Board of Directors shall have made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive and described in a Board Resolution. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Company shall mail to the holder of each Note at his last address appearing on the Note register provided for in Section 2.5 a notice of the reduction at least fifteen (15) days prior to the date the reduced Conversion Price takes effect, and such notice shall state the reduced Conversion Price and the period during which it will be in effect. (j) No adjustment in the Conversion Price shall be required under this Section 15.5 unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this Section 15.5(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XV shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of the Common Stock. (k) Whenever the Conversion Price is adjusted as provided in this Section 15.5, the Company shall promptly file with the Trustee and any conversion agent other than the Trustee an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Price setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Price to the holder of each Note at his last address appearing on the Note register provided for in Section 2.5, within twenty (20) days of the effective date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such adjustment. (l) In any case in which this Section 15.5 provides that an adjustment shall become effective immediately after a Record Date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Note converted after such Record Date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 15.3. (m) For purposes of this Section 15.5, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. Section 15.6 Effect of Reclassification, Consolidation, Merger or Sale. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), or (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) providing that such Note shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon conversion of such Notes (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available to convert all such Notes) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of this Section 15.6 the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a person other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental indenture shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the repurchase rights set forth in Article XVI herein. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each holder of Notes, at his address appearing on the Note register provided for in Section 2.5 of this Indenture, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. The above provisions of this Section shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 15.6 applies to any event or occurrence, Section 15.5 shall not apply. Section 15.7 Taxes on Shares Issued. The issue of stock certificates on conversions of Notes shall be made without charge to the converting Noteholder for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the holder of any Note converted, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Section 15.8 Reservation of Shares; Shares to be Fully Paid; Listing of Common Stock. The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares to provide for the conversion of the Notes from time to time as such Notes are presented for conversion. Before taking any action which would cause an adjustment reducing the Conversion Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Notes, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Price. The Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof. The Company further covenants that if at any time the Common Stock shall be listed on the New York Stock Exchange, Nasdaq National Market or any other national securities exchange or automated quotation system the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Notes. Section 15.9 Responsibility of Trustee. The Trustee and any other conversion agent shall not at any time be under any duty or responsibility to any holder of Notes to determine whether any facts exist which may require any adjustment of the Conversion Price, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other conversion agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other conversion agent make no representations with respect thereto. Subject to the provisions of Section 8.1, neither the Trustee nor any conversion agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the Trustee nor any conversion agent shall be under any responsibility to determine whether a supplemental indenture need be entered into under Section 15.6 or the correctness of any provisions contained in any supplemental indenture entered into pursuant to such section relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Noteholders upon the conversion of their Notes after any event referred to in such Section 15.6 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 8.1, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer's Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Section 15.10 Notice to Holders Prior to Certain Actions. In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock (that would require an adjustment in the Conversion Price pursuant to Section 15.5); or (b) the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants; or (c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company; the Company shall cause to be filed with the Trustee and to be mailed to each holder of Notes at his address appearing on the Note register, provided for in Section 2.5 of this Indenture, as promptly as possible but in any event at least fifteen days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Section 15.11 Additional Conversion Price Adjustments (a) In addition to any adjustments to the Conversion Price required to be made pursuant to Section 15.5, the Conversion Price (1) shall be adjusted on the date which is the earlier of (A) the date by which the Company is required to have had the Shelf Registration Statement declared effective by the Securities and Exchange Commission or be subject to Liquidated Damages under the Registration Rights Agreement or (B) two calendar days after the date on which the Commission declares effective the Shelf Registration Statement (the earlier of such date, the "Registration Date"), if the Current Market Price on the Registration Date is less than the Conversion Price otherwise in effect on the Registration Date, to the greater of such Current Market Price or 75% of the Benchmark Price (as defined below) and (2) shall be adjusted on August 23, 2002 (the "August 23, 2002 Date" and, together with the Registration Date, the "Adjustment Date"), if the Current Market Price on the August 23, 2002 Date is less than the Conversion Price otherwise in effect on the August 23, 2002 Date, to the greater of such Current Market Price or 75% of the Benchmark Price; provided, however, that in no event shall the Conversion Price be increased by any such adjustment. For purposes of this Section 15.11, the "Benchmark Price" shall mean $5.61, which price shall be subject to adjustment as provided in the following sentence. If, prior to the applicable Adjustment Date, any event occurs that would require an adjustment to the Conversion Price pursuant to Section 15.5 or Section 15.6 (without taking into account the effect of Section 15.5(i)), then, for each such event, the Benchmark Price shall be adjusted in substantially the same manner in accordance with the Conversion Price adjustment provisions set forth in Section 15.5 as determined in good faith by the Board of Directors and set forth in an Officer's Certificate in accordance with Section 15.11(c) hereof. The phrase "date in question" in Section 15.5(h)(2) used in determining the Current Market Price for this Section 15.11 shall be the applicable Adjustment Date, and the occurrence of any event of the type set forth in Section 15.5(h)(2) that would require an adjustment in the Closing Price for any Trading Day in such period of ten (10) consecutive Trading Days prior to the applicable Adjustment Date pursuant to Section 15.5(h)(2) will also result in an appropriate adjustment to the Current Market Price for the purposes of this 15.11 in substantially the same manner as Section 15.5(h)(2) requires with regard to an event for which such Section 15.5(h)(2) designates an "ex" date, all as reasonably determined in good faith by the Board of Directors. (b) In addition to any adjustments to the Conversion Price required to be made pursuant to Section 15.5, Section 15.6 or Section 15.11(a): (i) If, at any time prior to August 28, 2003, the Company issues, in a single transaction, Additional Stock (as defined below) consisting of (x) a Primary Security (as defined below) plus (y) warrants to purchase Common Stock (such warrants, together with the Primary Security, the "Combined Securities"), with an Effective Primary Security Issuance Price (as defined below) that is less than the Effective Conversion Price (as defined below) otherwise in effect immediately prior to such issuance, the Conversion Price shall thereupon be adjusted so that the Effective Conversion Price equals the Effective Primary Security Issuance Price. (ii) If, at any time prior to August 28, 2003, the Company issues Additional Stock with a New Issuance Price (as defined below) that is less than the Effective Conversion Price otherwise in effect immediately prior to such issuance, the Conversion Price shall thereupon be adjusted so that the Effective Conversion Price equals the New Issuance Price; provided, however, that in the event that any Common Stock Equivalent constituting such newly issued Additional Stock contains an adjustment provision pursuant to which the New Issuance Price may itself be adjusted in certain circumstances and such adjustment occurs, resulting in a reduction in the New Issuance Price (such reduced price, the "Adjusted New Issuance Price") to a price lower than the Conversion Price, regardless of whether such adjustment occurs after August 28, 2003, the Conversion Price shall thereupon be adjusted so that the Effective Conversion Price equals the Adjusted New Issuance Price; provided, however, that in no event shall the Conversion Price be increased by any such adjustment. In the event that an issuance by the Company of Additional Stock would be covered by this Section 15.11(b) as well as either Section 15.5(a) or Section 15.5(b), no adjustment pursuant to this Section 15.11(b) shall be made, and the only adjustment to the Conversion Price for such issuance of Additional Stock shall be made pursuant to Section 15.5(a) or Section 15.5(b), as applicable. In the event that an issuance by the Company of Additional Stock would be covered by this Section 15.11(b) as well as either Section 15.5(c) or Section 15.5(d), no adjustment pursuant to Section 15.5(c) or Section 15.5(d) shall be made, and the only adjustment to the Conversion Price for such issuance of Additional Stock shall be made pursuant to this Section 15.11(b). The term "Primary Security" shall mean the security (whether in the form of Common Stock or a Common Stock Equivalent) to which the largest percentage of the purchase price for the Combined Securities is allocated for income tax purposes by the Company. The term "Effective Conversion Price" shall mean the product of the Conversion Price otherwise in effect (not including the effect of any adjustments made pursuant to Section 15.11(a)) and the percentage of the aggregate purchase price for the securities purchased under that certain Note, Unit and Warrant Purchase Agreement, dated as of August 23, 2001, allocated to the Notes. The initial Effective Conversion Price hereunder shall be $5.45. The term "New Issuance Price" shall mean the per share price, the conversion price or the exercise price, as applicable, of the Additional Stock. The term "Effective Primary Security Issuance Price" shall mean the product of (i) the per share price, conversion price or exercise price, as applicable, of the Primary Security and (ii) the percentage of the purchase price for the Combined Securities allocated to the Primary Security for income tax purposes by the Company. The term "Additional Stock" shall mean any shares of Common Stock or Common Stock Equivalents issued by the Company other than: (A) shares of Common Stock or Common Stock Equivalents issued in a transaction covered by the Conversion Price adjustments described in Section 15.5; (B) shares of Common Stock or Common Stock Equivalents issued for noncash consideration in connection with any arm's length commercial agreement approved by the Board of Directors, so long as the market value of all such shares of Common Stock, together, with respect to Common Stock Equivalents, with the market value of all shares of Common Stock into or for which such Common Stock Equivalents are convertible, exchangeable or exercisable, which market value for each such issuance shall be measured at the time of such issuance, does not exceed a cumulative aggregate of $20,000,000, as determined by the Board of Directors in reasonable good faith; (C) shares of Common Stock and Common Stock Equivalents issued for cash consideration in connection with any arm's length commercial agreement approved by the Board of Directors, so long as the cumulative aggregate market value of all such shares of Common Stock (or with respect to Common Stock Equivalents, the cumulative aggregate market value of all shares of Common Stock into or for which such Common Stock Equivalents are convertible, exchangeable or exercisable), at the time of each such issuance, does not exceed $10,000,000; (D) shares of Common Stock or Common Stock Equivalents issued or issuable to the Company's employees, consultants or directors directly or pursuant to a stock option plan or restricted stock plan approved by the Board of Directors; (E) warrants with an exercise price that is equal to or greater than the Current Market Price on the date of issuance, issued to financial institutions or lessors in connection with commercial credit arrangements or equipment financings; (F) shares of Common Stock or Common Stock Equivalents issuable upon exercise of Common Stock Equivalents outstanding as of the date hereof; (G) shares of Common Stock or Common Stock Equivalents issued in connection with bona fide acquisitions, mergers or similar transactions, the terms of which are approved by the Board of Directors; and (H) shares of Common Stock issued or issuable upon conversion of the Notes or exercise of the warrants issued pursuant to those certain warrant agreements, dated as of the date hereof, by and between the Company and The Bank of New York, as warrant agent. (c) Whenever the Conversion Price or Benchmark Price is adjusted as provided in this Section 15.11, the Company shall promptly file with the Trustee and any conversion agent other than the Trustee an Officer's Certificate setting forth the Conversion Price or Benchmark Price, as the case may be, after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Price or Benchmark Price setting forth the adjusted Conversion Price or Benchmark Price, as the case may be, and the date on which such adjustment became effective and shall mail such notice of such adjustment of the Conversion Price or Benchmark Price, as the case may be, to the holder of each Note at his last address appearing on the Note register provided for in Section 2.5, within twenty (20) days of the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. ARTICLE XVI REPURCHASE UPON A REPURCHASE EVENT Section 16.1 Repurchase Right. If, at any time prior to August 15, 2006 there shall occur a Repurchase Event, then each Noteholder shall have the right, at such holder's option, to require the Company to repurchase all of such holder's Notes, or any portion thereof (in principal amounts of $1,000 or integral multiples thereof), on the date (the "repurchase date") that is forty (40) calendar days after the date of the Company Notice (as defined in Section 16.2 below) of such Repurchase Event (or, if such 40th day is not a Business Day, the next succeeding Business Day). Such repurchase shall be made in cash at a price equal to 110% of the principal amount of Notes such holder elects to require the Company to repurchase, together with accrued interest, if any, to the repurchase date (the "Repurchase Price"); provided, however, that if such repurchase date is August 15 or February 15 then the interest payable on such date shall be paid to the holder of record of the Note on the next preceding August 15 or February 15, respectively. Notwithstanding anything in this Article XVI to the contrary, if a redemption date pursuant to Article III shall occur prior to any repurchase date established pursuant to a Company Notice under Section 16.2 hereof, provided that the Company shall have deposited or set aside an amount of money sufficient to redeem such Notes as set forth in Section 3.2 on or before such repurchase date, all such Notes shall be redeemed pursuant to Article III and the repurchase rights hereunder shall have no effect. Section 16.2 Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar day after the occurrence of a Repurchase Event, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee and cause a copy of such notice of a repurchase right, or a summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York. The Company Notice shall contain the following information: (1) the repurchase date; (2) the date by which the repurchase right must be exercised; (3) the last date by which the election to require repurchase, if submitted, must be revoked; (4) the Repurchase Price; (5) a description of the procedure which a holder must follow to exercise a repurchase right; and (6) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern. (b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right, which notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date. (c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for. (d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered. (e) On or prior to the repurchase date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price in cash for payment to the holder on the repurchase date; provided that if payment is to be made in cash and such cash payment is to be made on the repurchase date, it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m., New York City time, on such date. (f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase. (g) [Reserved.] (h) [Reserved.] (i) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8. Section 16.3 [Reserved.] Section 16.4 Certain Definitions. For purposes of this Article XVI: (a) the term "beneficial owner" shall be determined in accordance with Rule 13d-3 and 13d-5, as in effect on the date of the original execution of this Indenture, promulgated by the Securities and Exchange Commission pursuant to the Exchange Act; (b) the term "person" or "group" shall include any syndicate or group which would be deemed to be a "person" under Section 13(d) and 14(d) of the Exchange Act as in effect on the date of the original execution of this Indenture; and (c) the term "Continuing Director" means at any date a member of the Company's Board of Directors (i) who was a member of such board on August 28, 2001 or (ii) who was nominated or elected by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Company's Board of Directors was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or such lesser number comprising a majority of a nominating committee if authority for such nominations or elections has been delegated to a nominating committee whose authority and composition have been approved by at least a majority of the directors who were continuing directors at the time such committee was formed. (Under this definition, if the Board of Directors of the Company as of the date of this Indenture were to approve a new director or directors and then resign, no Change in Control would occur even though all of the current members of the Board of Directors would thereafter cease to be in office). (d) the term "Repurchase Event" means a Change in Control or a Termination of Trading. (e) a "Change in Control" shall be deemed to have occurred when (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner of shares representing more than 50% of the combined voting power of the then outstanding securities entitled to vote generally in elections of directors of the Company (the "Voting Stock"); (ii) approval by the stockholders of the Company of any plan or proposal for the liquidation, dissolution or winding up of the Company; (iii) the Company (A) consolidates with or merges into any other corporation or any other corporation merges into the Company, and in the case of any such transaction, the outstanding Common Stock of the Company is changed or exchanged into other assets or securities as a result, unless the stockholders of the Company immediately before such transaction own, directly or indirectly immediately following such transaction, at least 51% of the combined voting power of the outstanding voting securities of the corporation resulting from such transaction in substantially the same proportion as their ownership of the Voting Stock immediately before such transaction, or (B) conveys, transfers or leases all or substantially all of its assets to any person; or (iv) any time Continuing Directors do not constitute a majority of the Board of Directors of the Company (or, if applicable, a successor corporation to the Company); provided that a Change in Control shall not be deemed to have occurred if either (x) the Closing Price (as defined in Section 15.5(h)(1) hereof) of the Common Stock for any five (5) Trading Days during the ten (10) Trading Days immediately preceding the Change in Control is at least equal to 105% of the Conversion Price in effect on the date on which the Change in Control occurs and, if such Change in Control occurs on a date which is prior to the last date on which the Shelf Registration Statement is required to remain effective pursuant to the Registration Rights Agreement, the Shelf Registration Statement is effective and available for use or (y) in the case of a merger or consolidation or conveyance, transfer or lease otherwise constituting a Change in Control, all of the consideration (excluding cash payments for fractional shares) in such merger or consolidation constituting the Change in Control consists of common stock listed for trading on a United States national securities exchange or approved for trading on the Nasdaq National Market or the Nasdaq SmallCap (or which will be so traded or approved for trading when issued or exchanged in connection with such Change in Control) and as a result of such transaction or transactions such Notes become convertible solely into such common stock; provided, however, that the exception contained in the preceding clause (y) shall only apply in the event that (aa) the issuer of such common stock has a total market capitalization of at least $150 million and (bb) the product of (i) the average daily trading volume of such common stock for the ten (10) Trading Days immediately preceding the date on which the Company either executes the definitive agreement with respect to the transaction otherwise constituting a Change in Control or, if no such definitive agreement is executed, the date on which the transaction otherwise constituting a Change in Control is deemed to have occurred, as determined by the Company in good faith (either of such dates, as applicable, the "Measurement Date") and (ii) the average of the daily volume-weighted average per share price of such common stock for the ten (10) Trading Days immediately preceding the Measurement Date exceeds $1.5 million. (f) the term "market capitalization" in the proviso following clause (y) of the preceding subsection 16.4(e) shall mean, with respect to such issuer, the number of shares of common stock outstanding as of the Measurement Date (which number shall include shares of common stock held by affiliates of such issuer) multiplied by the closing price per share for such common stock of such issuer on the Measurement Date. (g) the term "volume-weighted average per share price" shall mean the volume-weighted average price of a share of common stock of an issuer described in the proviso following clause (y) of the preceding subsection 16.4(e) on a given Trading Day as calculated by the AQR function by Bloomberg. (h) a "Termination of Trading" shall have occurred if the Common Stock (or other common stock into which the Notes are then convertible) is neither listed for trading on a United States national securities exchange nor approved for trading on the Nasdaq National Market or the Nasdaq SmallCap Market. ARTICLE XVII MISCELLANEOUS PROVISIONS Section 17.1 Provisions Binding on Company's Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not. Section 17.2 Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company. Section 17.3 Addresses for Notices, Etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Notes on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to TiVo Inc., 2160 Gold Street, P.O. Box 2160, Alviso, CA 95002, Attention: Chief Financial Officer. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office. The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications. Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail, postage prepaid, at his address as it appears on the Note register and shall be sufficiently given to him if so mailed within the time prescribed. Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. Section 17.4 Governing Law. This Indenture and each Note shall be deemed to be a contract made under the laws of New York, and for all purposes shall be governed by and construed in accordance with the laws of New York, including, without limitation, Section 5-1401 of the New York General Obligations Law. Section 17.5 Evidence of Compliance with Conditions Precedent; Certificates to Trustee. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that in the opinion of the person executing such Officer's Certificate all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been satisfied, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been satisfied (except that an Opinion of Counsel shall not be required for the initial issuance and authentication of the Notes). Each certificate or opinion provided for by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in such certificate or opinion is based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been satisfied. Section 17.6 Legal Holidays. In any case where the date of maturity of interest on or principal of the Notes or the date fixed for redemption of any Note will not be a Business Day, then payment of such interest on or principal of the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period from and after such date. Section 17.7 No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction. Section 17.8 Trust Indenture Act. This Indenture is hereby made subject to, and shall be governed by, the provisions of the Trust Indenture Act required to be part of and to govern indentures qualified under the Trust Indenture Act; provided, however, that, unless otherwise required by law, notwithstanding the foregoing, this Indenture and the Notes issued hereunder shall not be subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust Indenture Act as now in effect as hereafter amended or modified; provided further that this Section 17.8 shall not require that this Indenture or the Trustee be qualified under the Trust Indenture Act prior to the time such qualification is in fact required under the terms of the Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party hereto that any such qualification is required prior to the time such qualification is in fact required under the terms of the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in an indenture qualified under the Trust Indenture Act, such required provision shall control. Section 17.9 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any person, other than the parties hereto, any paying agent, any authenticating agent, any Note registrar and their successors hereunder, the holders of Notes and the holders of Senior Indebtedness, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 17.10 Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. Section 17.11 Authenticating Agent. The Trustee may appoint an authenticating agent which shall be authorized to act on its behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Sections 2.4, 2.5, 2.6, 2.7 and 3.3, as fully for all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes "by the Trustee" and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee's certificate of authentication. Such authenticating agent shall at all times be a person eligible to serve as trustee hereunder pursuant to Section 8.9. Any corporation into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation. Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee shall promptly appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company and shall mail notice of such appointment to all holders of Notes as the names and addresses of such holders appear on the Note register. The Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services. The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this Section 17.11 shall be applicable to any authenticating agent. Section 17.12 Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The Bank of New York hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly signed all as of the date first written above. TIVO INC. By: /s/ Michael Ramsay --------------------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney ---------------------------- Name : David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer THE BANK OF NEW YORK, as Trustee By: /s/ Michael Pitfick --------------------------------- Name: Michael Pitfick Title: Assistant Treasurer [SIGNATURE PAGE TO INDENTURE] EXHIBIT A --------- [FORM OF FACE OF NOTE] [THE FOLLOWING PARAGRAPH SHALL APPEAR ON THE FACE OF EACH RESTRICTED NOTE.] THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE INDENTURE GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRUSTEE AND/OR THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRUSTEE AND/OR THE TRANSFER AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES THAT, PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. [THE COMPANY MAY, BUT IS NOT OBLIGATED TO, INSTRUCT THE TRUSTEE TO PLACE THE FOLLOWING PARAGRAPH ON THE FACE OF EACH NOTE HELD BY OR TRANSFERRED TO AN "AFFILIATE" (AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT) OF THE COMPANY:] THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. TIVO INC. 7% Convertible Senior Notes due 2006 No. ___ $_______________ CUSIP No._____________ TiVo Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (herein called the "Company", which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to ____________________, or registered assigns, the principal sum of ___________ Dollars on August 15, 2006 and to pay interest on said principal sum semi-annually on August 15 and February 15 of each year, commencing February 15, 2002 at the rate per annum specified in the title of this Note, accrued from August 24, 2001. The interest so payable on any August 15 or February 15 will be paid to the person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the record date, which shall be the August 1 or February 1 (whether or not a Business Day) next preceding such August 15 or February 15, respectively; provided that any such interest not punctually paid or duly provided for shall be payable as provided in the Indenture. Payment of the principal of and interest accrued on this Note (including Liquidated Damages, if any) shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, or at any other office or agency permitted by the Indenture, in such lawful money of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts; provided further, however, that, with respect to any holder of Notes with an aggregate principal amount equal to or in excess of $500,000, at the request of such holder in writing to the Company, interest on such holder's Notes shall be paid by wire transfer in immediately available funds in accordance with the written wire transfer instruction supplied by such holder from time to time to the Trustee and paying agent (if different from the Trustee) at least two days prior to the applicable record date. Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the holder of this Note the right to convert this Note into Common Stock of the Company on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said State, including, without limitation, Section 5-1401 of the New York General Obligations Law. This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized authenticating agent under the Indenture. IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. TIVO INC. By: ----------------------------- Name: Title: Attest: By: ----------------------------- Name: Title: [FORM OF CERTIFICATE OF AUTHENTICATION] TRUSTEE'S CERTIFICATE OF AUTHENTICATION THE BANK OF NEW YORK, as Trustee, certifies that this is one of the Notes described in the within-named Indenture. Dated: By: ----------------------------- Authorized Signatory [FORM OF REVERSE OF NOTE] TIVO INC. 7% Convertible Senior Note Due 2006 This Note is one of a duly authorized issue of Notes of the Company, designated as its 7% Convertible Senior Notes due 2006 (herein called the "Notes"), limited to the aggregate principal amount of $__________ all issued or to be issued under and pursuant to an Indenture dated as of August 28, 2001 (herein called the "Indenture"), between the Company and The Bank of New York, (herein called the "Trustee"), to which the Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Notes. All capitalized terms used herein without definition shall have the meaning set forth in the Indenture. In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of, premium, if any, and accrued interest on all Notes may be declared, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. Liquidated damages paid pursuant to Section 15.2 of the Indenture, if any, shall be paid within ten (10) Business Days of the date from which such liquidated damages accrued pursuant to Section 15.2. Liquidated Damages on the Notes paid pursuant to Section 3(e) of the Registration Rights Agreement, if any, shall be paid at the times and in the manner provided therein. The Indenture contains provisions permitting the Company and the Trustee in certain limited circumstances, without the consent of the holders of the Notes, and in other circumstances, with the consent of the holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute amendments to the Indenture or supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Notes; provided, however, that no such amendment or supplemental indenture shall (i) extend the fixed maturity of any Note, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any amount payable on redemption or repurchase thereof, impair, or change in any respect adverse to the holder of Notes, the obligation of the Company to repurchase any Note at the option of the holder upon the happening of a Repurchase Event, or impair or adversely affect the right of any Noteholder to institute suit for the payment thereof, or change the currency in which the Notes are payable, or impair or change in any respect adverse to the Noteholders the right to convert the Notes into Common Stock subject to the terms set forth in the Indenture, including Section 15.6 thereof, or subordinate in right of payment the Notes to any other Indebtedness, without the consent of the holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all Notes then outstanding. It is also provided in the Indenture that the holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the holders of all of the Notes waive any past default or Event of Default under the Indenture and its consequences except (i) a default in the payment of interest or premium, if any, on, or the principal of, the Notes when due, (ii) a failure by the Company to convert any Notes into Common Stock or (iii) a default in respect of a covenant or provisions of the Indenture which under Article XI thereof cannot be modified or amended without the consent of the holders of all Notes then outstanding. Any such consent or waiver by the holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution hereof, irrespective of whether any notation thereof is made upon this Note or such other Notes. No reference herein to the Indenture and no provision of this Note or of the Indenture shall impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note as and when the same shall become due and payable in accordance with the terms herein. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. The Notes are issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but with payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection with any registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations. The Company may, at its option, redeem all or any part of the Notes on any date prior to maturity, upon mailing a notice of such redemption, and at a redemption price equal to $1,000 per $1,000 principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption, provided, however, that, prior to August 28, 2004, the Company shall only have such right of redemption if (1) the Closing Price per share of the Company's Common Stock has exceeded 200% of the Conversion Price then in effect (not including the effect of any adjustment to the Conversion Price made pursuant to Section 15.11 of the Indenture) for at least 20 Trading Days within a period of 30 consecutive Trading Days, and (2) within 10 days following the Determination Period, the Company mails to holders the notice required pursuant to Section 3.2 (the date of such notice, the "Notice Date"), and provided, further, that, prior to the last date on which the shelf registration statement covering resales of the Notes and the Common Stock issuable upon conversion of the Notes is required to remain effective pursuant to the Registration Rights Agreement, such shelf registration statement is effective and available for use at all times during the period beginning 30 days prior to the Notice Date and ending on the earlier of the redemption date or the last date on which the Shelf Registration Statement is required to remain effective and available pursuant to the Registration Rights Agreement, and is expected to remain effective and available for use until the earlier of 30 days following the redemption date or the last date on which the Shelf Registration Statement is required to remain effective pursuant to the Registration Rights Agreement. If the Company exercises such right of redemption prior to August 28, 2002, the Company shall make an additional payment in cash to holders of the redeemed Notes with respect to the Notes called for redemption, in an amount equal to $70 per each $1,000 principal amount of the Note, less the amount of any interest actually paid on such Notes prior to the date of notice of redemption is mailed. The Company shall make this additional payment on all Notes called for redemption prior to August 28, 2002, including any Notes converted after the date the notice of redemption is mailed and before the provisional redemption date. If such notice of redemption has been given as provided in the Indenture, the Notes or portion of Notes called for redemption shall, unless converted into Common Stock pursuant to the terms of the Indenture, become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with the Provisional Payment, if any, and interest accrued to, but excluding, the date fixed for redemption, and on and after such date (unless the Company shall default in the payment of such Notes at the redemption price, together with the Provisional Payment, if any, and interest accrued to, but excluding, said date) interest on the Notes or portion of Notes so called for redemption shall cease to accrue and such Notes shall cease after the close of business on the Business Day next preceding the date fixed for redemption to be convertible into Common Stock and, except as provided in Sections 8.5 and 13.4 of the Indenture, to be entitled to any benefit or security under the Indenture, and the holders of such Notes shall have no right in respect of such Notes except the right to receive the redemption price and unpaid interest to, but excluding, the date fixed for redemption. On presentation and surrender of such Notes at a place of payment specified in such notice, such Notes or the specified portions thereof to be redeemed shall be paid and redeemed by the Company at the applicable redemption price, together with the Provisional Payment, if any, and interest accrued thereon to, but excluding, the date fixed for redemption; provided that, if the applicable redemption date is an interest payment date, the semi-annual payment of interest becoming due on such date shall be payable to the holders of such Notes registered as such on the relevant record date subject to the terms and provisions of Section 2.3 of the Indenture. The Notes are not subject to redemption through the operation of any sinking fund. Upon the occurrence of a "Repurchase Event," the Noteholder has the right, at such holder's option, to require the Company to repurchase all or any portion of such holder's Notes on the 40th calendar day (or, if such 40th day is not a Business Day, the next succeeding Business Day) after notice of such Repurchase Event at a price equal to 110% of the principal amount of the Notes such holder elects to require the Company to repurchase, together, in each case, with accrued interest to the date fixed for repurchase; provided that if such repurchase date is August 15 or February 15, then the interest payable on such date shall be paid to the holder of record of the Note on the next preceding August 15 or February 15, respectively. The Company or, at the written request of the Company, the Trustee shall mail to all holders of record of the Notes a notice of the occurrence of a Repurchase Event and of the repurchase right arising as a result thereof on or before the tenth (10th) calendar day after the occurrence of such Repurchase Event. If a redemption date pursuant to Article III of the Indenture shall occur prior to any repurchase date established pursuant to a Company Notice under Section 16.2 of the Indenture, provided that the Company shall have deposited or set aside an amount of money sufficient to redeem such Notes as set forth in Section 3.2 of the Indenture on or before such repurchase date, all such Notes shall be redeemed pursuant to Article III of the Indenture and the repurchase rights under Article XVI of the Indenture shall have no effect. Subject to the provisions of the Indenture, the holder hereof has the right, at its option, at any time following the date of original issuance of the Notes and prior to the close of business on August 15, 2006, (except that, with respect to any Note or portion of a Note that shall be called for redemption, such right shall terminate, except as otherwise provided in the Indenture, at the close of business on the Business Day next preceding the date fixed for redemption unless the Company shall default in payment due upon redemption), to convert the principal hereof or any portion of such principal which is $1,000 or an integral multiple thereof, into that number of fully paid and non-assessable shares of the Company's Common Stock, as said shares shall be constituted at the date of conversion, obtained by dividing the principal amount of this Note or portion thereof to be converted by the conversion price of $6.73 or such conversion price as adjusted from time to time as provided in the Indenture, upon surrender of this Note, together with a conversion notice as provided in the Indenture and this Note, to the Company at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, or at any other office or agency permitted by the Indenture, and, unless the shares issuable on conversion are to be issued in the same name as this Note, duly endorsed by, or accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the holder or by his duly authorized attorney. Copies of such notice shall also be sent via facsimile to the Company, attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). The Company shall pay in cash, on this Note or portion thereof surrendered for conversion during the period from the close of business on any interest payment date to which interest has been fully paid through the close of business on the Business Day preceding the record date for the next such interest payment date, accrued and unpaid interest, if any, to, but excluding, the date of conversion. Any such payment of interest shall be made with ten (10) Business Days after the Conversion Date. Notwithstanding the foregoing, if this Note shall be surrendered for conversion during the period from the close of business on any record date for any interest payment date through the close of business on the Business Day next preceding such interest payment date, this Note (unless the Note or the portion thereof being converted shall have been called for redemption pursuant to a redemption notice mailed to the Noteholders in accordance with Section 3.2 of the Indenture or shall have become due prior to such interest payment date as a result of a Repurchase Event) must be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided, however, that no such payment need be made if there shall exist at the time of conversion a default in the payment of interest on the Notes. No fractional shares of Common Stock will be issued upon any conversion, but an adjustment in cash will be paid to the holder, as provided in the Indenture, in respect of any fraction of a share which would otherwise be issuable upon the surrender of any Note or Notes for conversion. In addition to any adjustments to the Conversion Price required to be made pursuant to Section 15.5 of the Indenture, the Conversion Price (1) shall be adjusted on the date which is the earlier of (A) the date by which the Company is required to have had the Shelf Registration Statement declared effective by the Securities and Exchange Commission or be subject to Liquidated Damages under the Registration Rights Agreement or (B) two calendar days after the date on which the Commission declares effective the Shelf Registration Statement (the earlier of such date, the "Registration Date"), if the Current Market Price on the Registration Date is less than the Conversion Price otherwise in effect on the Registration Date, to the greater of such Current Market Price or 75% of the Benchmark Price and (2) shall be adjusted on August 23, 2002 (the "August 23, 2002 Date" and, together with the Registration Date, the "Adjustment Date"), if the Current Market Price on the August 23, 2002 Date is less than the Conversion Price otherwise in effect on the August 23, 2002 Date, to the greater of such Current Market Price or 75% of the Benchmark Price, which Benchmark Price is subject to adjustment as provided in the Indenture. In addition to any adjustment to the Conversion Price required to be made pursuant to Section 15.5, Section 15.6 or Section 15.11(a) of the Indenture, the Conversion Price shall be adjusted in accordance with Section 15.11(b) of the Indenture. In connection with any redemption of Notes, the Company may arrange for the purchase and conversion of any Notes not converted prior to the expiration of such conversion right by an agreement with one or more investment bankers or other purchasers to purchase such Notes by paying to the Trustee in trust for the Noteholders, on or before the date fixed for redemption, an amount not less than the applicable redemption price, together with the Provisional Payment, if any, and interest accrued to the date fixed for redemption, of such Notes. Upon due presentment for registration of transfer of this Note and any other documents as may be required to be delivered by the Indenture at the office or agency of the Company in the Borough of Manhattan, The City of New York, or at any other office or agency permitted by the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange thereof, subject to the requirements and limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith. The Company, the Trustee, any authenticating agent, any paying agent, any conversion agent and any Note registrar may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment hereof (including Liquidated Damages to the extent accrued but unpaid), or on account hereof, for the conversion hereof and for all other purposes; and neither the Company nor the Trustee nor any other authenticating agent nor any paying agent nor any other conversion agent nor any Note registrar shall be affected by any notice to the contrary. All such payments so made to, or upon the order of, such registered holder for the time being shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable on this Note. No recourse for the payment of the principal of or any premium or interest on this Note (including Liquidated Damages, if any), or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. ABBREVIATIONS The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT - _____________________Custodian (Cust) TEN ENT - as tenants by the _____________________________ entireties (Minor) JT TEN - as joint tenants with Uniform Gifts to right of survivorship and Minors Act _________________ not as tenants in common (State) Additional abbreviations may also be used though not in the above list. [FORM OF CONVERSION NOTICE] To: TiVo Inc. The undersigned registered owner of this Note hereby irrevocably exercises the option to convert this Note, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Note, and directs that the shares issuable and deliverable upon such conversion, together with any check in payment for fractional shares and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of this Note not converted are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of interest accompanies this Note. Principal amount to be converted (if less than all): $______,000 Dated: __________________ -------------------------------- -------------------------------- Signature(s) - ------------------------------- Signature Guarantee Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes to be delivered, other than to and in the name of the registered holder. This form must be delivered to the Trustee at the Corporate Trust Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM (Common Stock or Notes: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER:_____________________________________________________________ ACCOUNT NAME:_______________________________________________________________ REMAINING UNCONVERTED PRINCIPAL AMOUNT OF NOTES TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ [FORM OF OPTION TO ELECT REPAYMENT UPON A REPURCHASE EVENT] To: TiVo Inc. The undersigned registered owner of this Note hereby acknowledges receipt of a notice from TiVo Inc. (the "Company") as to the occurrence of a Repurchase Event with respect to the Company and requests and instructs the Company to repay the entire principal amount of this Note, or the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Note, together with accrued interest (including Liquidated Damages, if any) to, but excluding, such date, to the registered holder hereof. Dated: ____________________ ______________________________________ ______________________________________ Signature(s) Social Security or Other Taxpayer Identification Number Principal amount to be repaid (if less than all): $______,000 NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. [FORM OF ASSIGNMENT AND TRANSFER] For value received ____________________________ hereby sell(s), assign(s) and transfer(s) unto _________________ (Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints ________ _____________ attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises. In connection with any transfer of the within Note occurring within two years (or such shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Note (unless such Note is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Note is being transferred: _ |_| *To TiVo Inc. or a subsidiary thereof; or _ |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or _ |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Note is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): _ |_| *The transferee is an Affiliate of the Company. Dated: ________________________ _______________________________ _______________________________ Signature(s) _______________________________ Signature Guarantee Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes to be delivered, other than to and in the name of the registered holder. NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Repurchase Event or the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. EXHIBIT B FORM OF TRANSFER LETTER OF REPRESENTATIONS (TO BE DELIVERED BY HOLDER UPON CERTAIN TRANSFERS OF NOTES WITHOUT EFFECTIVE REGISTRATION STATEMENT) We are delivering this letter in connection with the sale or transfer to us of Notes (as defined in the Indenture, dated as of August 28, 2001, between TiVo Inc., a Delaware corporation (the "Company") and The Bank of New York, a New York banking corporation (the "Trustee")) other than pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended (the "Securities Act"). We hereby confirm that: (i) we are an "accredited investor" within the meaning of Rule 501(a)(1),(2), (3), (5), (6) or (7) under the Securities Act; (ii) any purchase or receipt of the Notes by us will be for investment purposes and for our own account, not as a nominee or agent; (iii) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing or receiving the Notes; (iv) we do not have need for liquidity in our investment in the Notes, we have the ability to bear the economic risks of our investment in the Notes for an indefinite period of time and we are able to afford the complete loss of our investment in the Notes; (v) we are not acquiring the Notes with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction, and we have no present intention of selling, granting any participation in, or otherwise distributing the same; (vi) we have had access to such information regarding the Company necessary in order for us to make an informed decision and any such information which we have requested have been made available for us or our attorney, accountant, or advisor; and (vii) we or our attorney, accountant, or advisor have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the business, management and financial affairs of the Company and the terms and conditions of the acquisition by us of the Notes and all such questions have been answered to our full satisfaction, and we have acquired sufficient information about the Company to make an informed and knowledgeable decision to acquire the Notes. We understand that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that such Notes may be offered, resold, pledged or otherwise transferred only (i) in accordance with an exemption from the registration requirements of the Securities Act, (ii) to the Company or (iii) pursuant to an effective registration statement, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction. We agree that we will furnish the Company and the Trustee an opinion of counsel, if the Company so requests, that the foregoing restrictions on transfer have been complied with. We understand that the Trustee will not be required to accept for registration of transfer any Notes, except upon presentation of evidence satisfactory to the Company, including an opinion of counsel if the Company so requests, that the foregoing restrictions on transfer have been complied with. We acknowledge that the Company and others will rely upon our confirmations, acknowledgements and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete. _________________________________ (Name) By:______________________________ Name: Title: Address: EX-13 15 exh13.txt NOTE Exhibit 13 THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE INDENTURE GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE TRUSTEE AND/OR THE TRANSFER AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE TRUSTEE AND/OR THE TRANSFER AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES THAT, PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. TIVO INC. 7% Convertible Senior Notes due 2006 No. CSN-17 $10,000,000.00 CUSIP No. 888706 AB 4 TiVo Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (herein called the "Company", which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to National broadcasting company, inc., or registered assigns, the principal sum of ten million Dollars ($10,000,000.00) on August 15, 2006 and to pay interest on said principal sum semi-annually on August 15 and February 15 of each year, commencing February 15, 2002 at the rate per annum specified in the title of this Note, accrued from August 24, 2001. The interest so payable on any August 15 or February 15 will be paid to the person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the record date, which shall be the August 1 or February 1 (whether or not a Business Day) next preceding such August 15 or February 15, respectively; provided that any such interest not punctually paid or duly provided for shall be payable as provided in the Indenture. Payment of the principal of and interest accrued on this Note (including Liquidated Damages, if any) shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, or at any other office or agency permitted by the Indenture, in such lawful money of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts; provided further, however, that, with respect to any holder of Notes with an aggregate principal amount equal to or in excess of $500,000, at the request of such holder in writing to the Company, interest on such holder's Notes shall be paid by wire transfer in immediately available funds in accordance with the written wire transfer instruction supplied by such holder from time to time to the Trustee and paying agent (if different from the Trustee) at least two days prior to the applicable record date. Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the holder of this Note the right to convert this Note into Common Stock of the Company on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said State, including, without limitation, Section 5-1401 of the New York General Obligations Law. This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized authenticating agent under the Indenture. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. TIVO INC. By: /s/ Michael Ramsay --------------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney -------------------------- Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer TRUSTEE'S CERTIFICATE OF AUTHENTICATION THE BANK OF NEW YORK, as Trustee, certifies that this is one of the Notes described in the within-named Indenture. Dated: August 28, 2001 By: /s/ Michael Pitfick -------------------------- Authorized Signatory [REVERSE OF NOTE] TIVO INC. 7% Convertible Senior Note Due 2006 This Note is one of a duly authorized issue of Notes of the Company, designated as its 7% Convertible Senior Notes due 2006 (herein called the "Notes"), limited to the aggregate principal amount of $51,750,000 all issued or to be issued under and pursuant to an Indenture dated as of August 28, 2001 (herein called the "Indenture"), between the Company and The Bank of New York, (herein called the "Trustee"), to which the Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Notes. All capitalized terms used herein without definition shall have the meaning set forth in the Indenture. In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of, premium, if any, and accrued interest on all Notes may be declared, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. Liquidated damages paid pursuant to Section 15.2 of the Indenture, if any, shall be paid within ten (10) Business Days of the date from which such liquidated damages accrued pursuant to Section 15.2. Liquidated Damages on the Notes paid pursuant to Section 3(e) of the Registration Rights Agreement, if any, shall be paid at the times and in the manner provided therein. The Indenture contains provisions permitting the Company and the Trustee in certain limited circumstances, without the consent of the holders of the Notes, and in other circumstances, with the consent of the holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute amendments to the Indenture or supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Notes; provided, however, that no such amendment or supplemental indenture shall (i) extend the fixed maturity of any Note, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any amount payable on redemption or repurchase thereof, impair, or change in any respect adverse to the holder of Notes, the obligation of the Company to repurchase any Note at the option of the holder upon the happening of a Repurchase Event, or impair or adversely affect the right of any Noteholder to institute suit for the payment thereof, or change the currency in which the Notes are payable, or impair or change in any respect adverse to the Noteholders the right to convert the Notes into Common Stock subject to the terms set forth in the Indenture, including Section 15.6 thereof, or subordinate in right of payment the Notes to any other Indebtedness, without the consent of the holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all Notes then outstanding. It is also provided in the Indenture that the holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the holders of all of the Notes waive any past default or Event of Default under the Indenture and its consequences except (i) a default in the payment of interest or premium, if any, on, or the principal of, the Notes when due, (ii) a failure by the Company to convert any Notes into Common Stock or (iii) a default in respect of a covenant or provisions of the Indenture which under Article XI thereof cannot be modified or amended without the consent of the holders of all Notes then outstanding. Any such consent or waiver by the holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution hereof, irrespective of whether any notation thereof is made upon this Note or such other Notes. No reference herein to the Indenture and no provision of this Note or of the Indenture shall impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note as and when the same shall become due and payable in accordance with the terms herein. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. The Notes are issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but with payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection with any registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations. The Company may, at its option, redeem all or any part of the Notes on any date prior to maturity, upon mailing a notice of such redemption, and at a redemption price equal to $1,000 per $1,000 principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption, provided, however, that, prior to August 28, 2004, the Company shall only have such right of redemption if (1) the Closing Price per share of the Company's Common Stock has exceeded 200% of the Conversion Price then in effect (not including the effect of any adjustment to the Conversion Price made pursuant to Section 15.11 of the Indenture) for at least 20 Trading Days within a period of 30 consecutive Trading Days, and (2) within 10 days following the Determination Period, the Company mails to holders the notice required pursuant to Section 3.2 (the date of such notice, the "Notice Date"), and provided, further, that, prior to the last date on which the shelf registration statement covering resales of the Notes and the Common Stock issuable upon conversion of the Notes is required to remain effective pursuant to the Registration Rights Agreement, such shelf registration statement is effective and available for use at all times during the period beginning 30 days prior to the Notice Date and ending on the earlier of the redemption date or the last date on which the Shelf Registration Statement is required to remain effective and available pursuant to the Registration Rights Agreement, and is expected to remain effective and available for use until the earlier of 30 days following the redemption date or the last date on which the Shelf Registration Statement is required to remain effective pursuant to the Registration Rights Agreement. If the Company exercises such right of redemption prior to August 28, 2002, the Company shall make an additional payment in cash to holders of the redeemed Notes with respect to the Notes called for redemption, in an amount equal to $70 per each $1,000 principal amount of the Note, less the amount of any interest actually paid on such Notes prior to the date of notice of redemption is mailed. The Company shall make this additional payment on all Notes called for redemption prior to August 28, 2002, including any Notes converted after the date the notice of redemption is mailed and before the provisional redemption date. If such notice of redemption has been given as provided in the Indenture, the Notes or portion of Notes called for redemption shall, unless converted into Common Stock pursuant to the terms of the Indenture, become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with the Provisional Payment, if any, and interest accrued to, but excluding, the date fixed for redemption, and on and after such date (unless the Company shall default in the payment of such Notes at the redemption price, together with the Provisional Payment, if any, and interest accrued to, but excluding, said date) interest on the Notes or portion of Notes so called for redemption shall cease to accrue and such Notes shall cease after the close of business on the Business Day next preceding the date fixed for redemption to be convertible into Common Stock and, except as provided in Sections 8.5 and 13.4 of the Indenture, to be entitled to any benefit or security under the Indenture, and the holders of such Notes shall have no right in respect of such Notes except the right to receive the redemption price and unpaid interest to, but excluding, the date fixed for redemption. On presentation and surrender of such Notes at a place of payment specified in such notice, such Notes or the specified portions thereof to be redeemed shall be paid and redeemed by the Company at the applicable redemption price, together with the Provisional Payment, if any, and interest accrued thereon to, but excluding, the date fixed for redemption; provided that, if the applicable redemption date is an interest payment date, the semi-annual payment of interest becoming due on such date shall be payable to the holders of such Notes registered as such on the relevant record date subject to the terms and provisions of Section 2.3 of the Indenture. The Notes are not subject to redemption through the operation of any sinking fund. Upon the occurrence of a "Repurchase Event," the Noteholder has the right, at such holder's option, to require the Company to repurchase all or any portion of such holder's Notes on the 40th calendar day (or, if such 40th day is not a Business Day, the next succeeding Business Day) after notice of such Repurchase Event at a price equal to 110% of the principal amount of the Notes such holder elects to require the Company to repurchase, together, in each case, with accrued interest to the date fixed for repurchase; provided that if such repurchase date is August 15 or February 15, then the interest payable on such date shall be paid to the holder of record of the Note on the next preceding August 15 or February 15, respectively. The Company or, at the written request of the Company, the Trustee shall mail to all holders of record of the Notes a notice of the occurrence of a Repurchase Event and of the repurchase right arising as a result thereof on or before the tenth (10th) calendar day after the occurrence of such Repurchase Event. If a redemption date pursuant to Article III of the Indenture shall occur prior to any repurchase date established pursuant to a Company Notice under Section 16.2 of the Indenture, provided that the Company shall have deposited or set aside an amount of money sufficient to redeem such Notes as set forth in Section 3.2 of the Indenture on or before such repurchase date, all such Notes shall be redeemed pursuant to Article III of the Indenture and the repurchase rights under Article XVI of the Indenture shall have no effect. Subject to the provisions of the Indenture, the holder hereof has the right, at its option, at any time following the date of original issuance of the Notes and prior to the close of business on August 15, 2006, (except that, with respect to any Note or portion of a Note that shall be called for redemption, such right shall terminate, except as otherwise provided in the Indenture, at the close of business on the Business Day next preceding the date fixed for redemption unless the Company shall default in payment due upon redemption), to convert the principal hereof or any portion of such principal which is $1,000 or an integral multiple thereof, into that number of fully paid and non-assessable shares of the Company's Common Stock, as said shares shall be constituted at the date of conversion, obtained by dividing the principal amount of this Note or portion thereof to be converted by the conversion price of $6.73 or such conversion price as adjusted from time to time as provided in the Indenture, upon surrender of this Note, together with a conversion notice as provided in the Indenture and this Note, to the Company at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, or at any other office or agency permitted by the Indenture, and, unless the shares issuable on conversion are to be issued in the same name as this Note, duly endorsed by, or accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the holder or by his duly authorized attorney. Copies of such notice shall also be sent via facsimile to the Company, attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). The Company shall pay in cash, on this Note or portion thereof surrendered for conversion during the period from the close of business on any interest payment date to which interest has been fully paid through the close of business on the Business Day preceding the record date for the next such interest payment date, accrued and unpaid interest, if any, to, but excluding, the date of conversion. Any such payment of interest shall be made with ten (10) Business Days after the Conversion Date. Notwithstanding the foregoing, if this Note shall be surrendered for conversion during the period from the close of business on any record date for any interest payment date through the close of business on the Business Day next preceding such interest payment date, this Note (unless the Note or the portion thereof being converted shall have been called for redemption pursuant to a redemption notice mailed to the Noteholders in accordance with Section 3.2 of the Indenture or shall have become due prior to such interest payment date as a result of a Repurchase Event) must be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided, however, that no such payment need be made if there shall exist at the time of conversion a default in the payment of interest on the Notes. No fractional shares of Common Stock will be issued upon any conversion, but an adjustment in cash will be paid to the holder, as provided in the Indenture, in respect of any fraction of a share which would otherwise be issuable upon the surrender of any Note or Notes for conversion. In addition to any adjustments to the Conversion Price required to be made pursuant to Section 15.5 of the Indenture, the Conversion Price (1) shall be adjusted on the date which is the earlier of (A) the date by which the Company is required to have had the Shelf Registration Statement declared effective by the Securities and Exchange Commission or be subject to Liquidated Damages under the Registration Rights Agreement or (B) two calendar days after the date on which the Commission declares effective the Shelf Registration Statement (the earlier of such date, the "Registration Date"), if the Current Market Price on the Registration Date is less than the Conversion Price otherwise in effect on the Registration Date, to the greater of such Current Market Price or 75% of the Benchmark Price and (2) shall be adjusted on August 23, 2002 (the "August 23, 2002 Date" and, together with the Registration Date, the "Adjustment Date"), if the Current Market Price on the August 23, 2002 Date is less than the Conversion Price otherwise in effect on the August 23, 2002 Date, to the greater of such Current Market Price or 75% of the Benchmark Price, which Benchmark Price is subject to adjustment as provided in the Indenture. In addition to any adjustment to the Conversion Price required to be made pursuant to Section 15.5, Section 15.6 or Section 15.11(a) of the Indenture, the Conversion Price shall be adjusted in accordance with Section 15.11(b) of the Indenture. In connection with any redemption of Notes, the Company may arrange for the purchase and conversion of any Notes not converted prior to the expiration of such conversion right by an agreement with one or more investment bankers or other purchasers to purchase such Notes by paying to the Trustee in trust for the Noteholders, on or before the date fixed for redemption, an amount not less than the applicable redemption price, together with the Provisional Payment, if any, and interest accrued to the date fixed for redemption, of such Notes. Upon due presentment for registration of transfer of this Note and any other documents as may be required to be delivered by the Indenture at the office or agency of the Company in the Borough of Manhattan, The City of New York, or at any other office or agency permitted by the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange thereof, subject to the requirements and limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith. The Company, the Trustee, any authenticating agent, any paying agent, any conversion agent and any Note registrar may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment hereof (including Liquidated Damages to the extent accrued but unpaid), or on account hereof, for the conversion hereof and for all other purposes; and neither the Company nor the Trustee nor any other authenticating agent nor any paying agent nor any other conversion agent nor any Note registrar shall be affected by any notice to the contrary. All such payments so made to, or upon the order of, such registered holder for the time being shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable on this Note. No recourse for the payment of the principal of or any premium or interest on this Note (including Liquidated Damages, if any), or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. ABBREVIATIONS The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian ------------------------ (Cust) TEN ENT - as tenants by the entireties ------------------------- (Minor) JT TEN - as joint tenants with right of survivorship and Uniform Gifts to Minors Act___________ not as tenants in common (State) Additional abbreviations may also be used though not in the above list. [FORM OF CONVERSION NOTICE] To: TiVo Inc. The undersigned registered owner of this Note hereby irrevocably exercises the option to convert this Note, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Note, and directs that the shares issuable and deliverable upon such conversion, together with any check in payment for fractional shares and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of this Note not converted are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of interest accompanies this Note. Principal amount to be converted (if less than all): $______,000 Dated: ________________________ -------------------------------- -------------------------------- Signature(s) - ------------------------------- Signature Guarantee Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes to be delivered, other than to and in the name of the registered holder. This form must be delivered to the Trustee at the Corporate Trust Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM (Common Stock or Notes: Social Security Number or identifying number:______________________ Name: ----------------------------------------------------------- Street Address: ------------------------------------------------- City, State and Zip Code: --------------------------------------- IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER: ------------------------------------------------- ACCOUNT NAME: --------------------------------------------------- REMAINING UNCONVERTED PRINCIPAL AMOUNT OF NOTES TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number:_____________________ Name: ----------------------------------------------------------- Street Address: ------------------------------------------------- City, State and Zip Code: --------------------------------------- [FORM OF OPTION TO ELECT REPAYMENT UPON A REPURCHASE EVENT] To: TiVo Inc. The undersigned registered owner of this Note hereby acknowledges receipt of a notice from TiVo Inc. (the "Company") as to the occurrence of a Repurchase Event with respect to the Company and requests and instructs the Company to repay the entire principal amount of this Note, or the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Note, together with accrued interest (including Liquidated Damages, if any) to, but excluding, such date, to the registered holder hereof. Dated: ________________________ ----------------------------------- ----------------------------------- Signature(s) ----------------------------------- Social Security or Other Taxpayer Identification Number Principal amount to be repaid (if less than all): $______,000 NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. [FORM OF ASSIGNMENT AND TRANSFER] For value received ____________________________ hereby sell(s), assign(s) and transfer(s) unto _________________ (Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints ________ _____________ attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises. In connection with any transfer of the within Note occurring within two years (or such shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Note (unless such Note is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Note is being transferred: |_| *To TiVo Inc. or a subsidiary thereof; or |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Note is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): |_| *The transferee is an Affiliate of the Company. Dated: ________________________ - ------------------------------- - ------------------------------- Signature(s) - ------------------------------- Signature Guarantee Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes to be delivered, other than to and in the name of the registered holder. NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Repurchase Event or the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. EX-14 16 exh14.txt EX-14 - FIVE YEAR WARRANT Exhibit 14 TIVO INC. No. FYW-17 CUSIP No. 888706 12 4 THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE WARRANT AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (5) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. WARRANT CERTIFICATE REPRESENTING 490,196 WARRANTS TO PURCHASE COMMON STOCK This certifies that National broadcasting company, inc., or its registered assigns, is the registered owner of four hundred ninety thousand one hundred nintey-six (490,196) Warrants, each expiring August 28, 2006, and each of which entitles the registered owner thereof (the "Warrantholder") to purchase at any time prior to the expiration hereof from TIVO INC., a Delaware corporation (the "Company"), one share of Common Stock (the "Common Stock"), $0.001 par value per share, of the Company at the purchase price of $7.85 per share of Common Stock (the "Exercise Price"), subject to adjustment as provided in the Warrant Agreement hereinafter referred to. The Warrants evidenced by this Warrant are issued under and in accordance with the Warrant Agreement, dated as of August 28, 2001 (the "Warrant Agreement"), between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"), and the Registration Rights Agreement, dated of even date therewith (the "Registration Rights Agreement"), among the Company and the initial purchasers of the Warrants, and are subject to the terms and provisions contained therein, to all of which terms and provisions the holder of this Warrant consents by acceptance of this Warrant and which Warrant Agreement and Registration Rights Agreement are hereby incorporated by reference in and made a part of this Warrant. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Reference is hereby made to the Warrant Agreement and the Registration Rights Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Warrantholders. The summary of the terms of the Warrant Agreement and the Registration Rights Agreement contained in this Warrant is qualified in its entirety by express reference to such agreements. All capitalized terms used but not defined in this Warrant shall have the meanings assigned to them in the Warrant Agreement. As provided in the Warrant Agreement, and subject to the terms and conditions set forth therein, the Warrants shall be exercisable at any time during the period commencing on the day after the date of the Warrant Agreement and ending at 5:00 p.m., New York time, on August 28, 2006 (the "Expiration Date"). This Warrant may be exercised on any Business Day on or prior to close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. The Exercise Price and the number of shares of Common Stock purchasable upon exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of Section 13 of the Warrant Agreement the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12 of the Warrant Agreement. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this calculation, the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. The Company covenants that it will at all times through 5:00 p.m., New York time, on the Expiration Date (or, if the Expiration Date shall not be a Business Day, then on the next-succeeding Business Day) reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury or a combination thereof of Common Stock, solely for the purpose of issue upon exercise of Warrants as herein provided, sufficient shares of Common Stock, for issuance upon exercise of, the Warrants from time to time as such Warrants are presented for exercise. The Company covenants that all shares of Common Stock issued upon exercise of Warrants shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof. The initial issuance of certificates of Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrantholders for any tax in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised, subject to the restrictions on transfer set forth herein and in the Warrant Agreement; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Subject to the terms and provisions of the Registration Rights Agreement, the Company shall file under the Securities Act a registration statement providing for the registration of all of the Warrants and the shares of Common Stock issuable upon exercise thereof. As provided in the Warrant Agreement and the Registration Rights Agreement, the Warrantholders have additional rights and duties with respect to the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants. A Warrantholder may be required to indemnify and hold the Company and certain other persons harmless in connection with written information furnished to the Company by or on behalf of such Warrantholder specifically for use in any registration statement, or any preliminary or final or summary Prospectus contained therein or any amendment or supplement thereto. By its acceptance of any Warrant represented by a Warrant Certificate bearing a restrictive legend, each holder and beneficial owner of such a Warrant acknowledges the restrictions on transfer of such a Warrant set forth in such legend and agrees that it will transfer such a Warrant only in accordance with such legend. Subject to the restrictions on transfer set forth herein and in the Warrant Agreement, this Warrant and all rights hereunder are transferable by the registered Warrantholder hereof, in whole or in part, on the Warrant register, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached "Form of Assignment," by the registered Warrantholder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, the Company will issue and the Warrant Agent will countersign and deliver to such Warrantholder a new Warrant Certificate or Warrant Certificates with respect to any portion not so transferred. Each taker and holder of this Warrant, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, the Company and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the holder of this Warrant shall not be entitled, as such, to any rights of a stockholder of the Company, including, without limitation, the right to vote or to consent to any action of the stockholders of the Company, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders of the Company, and shall not be entitled to receive any notice of any proceedings of the Company except as provided in the Warrant Agreement. Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] This Warrant shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. TIVO INC. By: /s/ Michael Ramsay ----------------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney ------------------------- Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer Countersigned: THE BANK OF NEW YORK as Warrant Agent By: /s/ Michael Pitfick ------------------------- Authorized Signatory Dated: August 28, 2001 EXERCISE FORM (To be executed only upon exercise of Warrant) The undersigned registered holder of a Warrant Certificate representing __________ Warrants irrevocably elects to exercise __________ of the Warrants represented by the Warrant Certificate for the purchase of one share (subject to adjustment as set forth in the Warrant Agreement) of Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and herewith |_| makes payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), |_| tenders $_______ principal amount of the Company's 7% Convertible Senior Notes due 2006, plus payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), |_| elects to make a "Cashless Exercise" of such Warrants as provided in Section 10(b) of the Warrant Agreement, all at the exercise price and on the terms and conditions specified in the Warrant and the Warrant Agreement therein referred to, and surrenders all of its right, title and interest in the number of Warrants exercised herein to TiVo Inc., and directs that the shares of Common Stock or other securities or property deliverable upon the exercise of such Warrants, and any Warrant Certificate or interests in the Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. Dated: --------------------------------- (Signature of Warrantholder) --------------------------------- (Street Address) --------------------------------- (City) (State) (Zip Code) Signature Guaranteed By: --------------------------------- This form must be delivered to the Warrant Agent at the Corporate Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM: Social Security Number or identifying number: Name: ------------------------------------------------------------- Street Address: --------------------------------------------------- City, State and Zip Code: ----------------------------------------- IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER: --------------------------------------------------- ACCOUNT NAME: ----------------------------------------------------- ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number: Name: ------------------------------------------------------------- Street Address: --------------------------------------------------- City, State and Zip Code: ----------------------------------------- FORM OF ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below:
Social Security Number Number or Other Name of Assignees Address of Warrants Identifying Number
and does hereby irrevocably constitute and appoint ____________________, the undersigned's attorney, to make such transfer on the books of TiVo Inc. maintained for the purpose, with full power of substitution in the premises. In connection with any transfer occurring within two years (or such longer or shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Warrant (unless such Warrant is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Warrant is being transferred: |_| *To TiVo Inc. or a subsidiary thereof; or |_| *Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Warrant is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): |_| *The transferee is an Affiliate of the Company. Dated: ----------------------------------- (Signature of Warrantholder) ----------------------------------- (Street Address) ----------------------------------- (City) (State) (Zip Code) Signature Guaranteed By: ----------------------------------- EX-15 17 ex151yr.txt ONE YEAR WARRANT Exhibit 15 ---------- TIVO INC. No. OYW-17 Unit CUSIP No. 888706 40 5 Warrant CUSIP No. 888706 15 7 THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPENDED TO THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE FIVE-YEAR TERMINABLE WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE FIVE-YEAR TERMINABLE WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. WARRANT CERTIFICATE REPRESENTING 742,721 WARRANTS TO PURCHASE COMMON STOCK This certifies that National broadcasting company, inc., or its registered assigns, is the registered owner of seven hundred forty-two thousand seven hundred twenty-one (742,721) Warrants, each expiring August 28, 2002, and each of which entitles the registered owner thereof (the "Warrantholder") to purchase at any time prior to the expiration hereof from TIVO INC., a Delaware corporation (the "Company"), one share of Common Stock (the "Common Stock"), $0.001 par value per share, of the Company at the purchase price of $6.73 per share of Common Stock (the "Exercise Price"), subject to adjustment as provided in the Warrant Agreement hereinafter referred to. The Warrants evidenced by this Warrant are issued under and in accordance with the Warrant Agreement, dated as of August 28, 2001 (the "Warrant Agreement"), between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"), and the Registration Rights Agreement, dated of even date therewith (the "Registration Rights Agreement"), among the Company and the initial purchasers of the Warrants, and are subject to the terms and provisions contained therein, to all of which terms and provisions the holder of this Warrant consents by acceptance of this Warrant and which Warrant Agreement and Registration Rights Agreement are hereby incorporated by reference in and made a part of this Warrant. Any Warrants represented by this Certificate shall be transferable or exchangeable only as a Unit with a like number of Five-Year Terminable Warrants (as defined in the Warrant Agreement). [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Reference is hereby made to the Warrant Agreement and the Registration Rights Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Warrantholders. The summary of the terms of the Warrant Agreement and the Registration Rights Agreement contained in this Warrant is qualified in its entirety by express reference to such agreements. All capitalized terms used but not defined in this Warrant shall have the meanings assigned to them in the Warrant Agreement. As provided in the Warrant Agreement, and subject to the terms and conditions set forth therein including early termination at the Company's option, the Warrants shall be exercisable, unless earlier terminated at the Company's option as described below, if applicable, at any time during the period commencing on the day after the date of the Warrant Agreement and ending at 5:00 p.m., New York time, on August 28, 2002 (the "Expiration Date"). This Warrant may be exercised on any Business Day on or prior to close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. If at any time prior to the Expiration Date, (1) the Closing Price (as defined in Section 12 of the Warrant Agreement) per share of the Common Stock has exceeded 150% of the Exercise Price then in effect for at least 20 Trading Days (as defined in Section 12(h) of the Warrant Agreement) within a period of 30 consecutive Trading Days (the "Determination Period") and (2) a shelf registration statement covering resales of the Common Stock issuable upon exercise of the Warrants is effective and available for use at all times during the period beginning 60 days prior to the Notice Date and ending on the Termination Date, and is expected to remain effective and available for use for at least 30 days following the Termination Date, then the Company may, at its option, terminate the Warrants. By following the procedures set forth below, the Company may exercise this right of termination only if, within 30 days following the Determination Period, the Company or, at its request, the Warrant Agent, in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such termination (the "Termination Notice," and the date such Termination Notice is mailed, the "Notice Date") to the holders of the Warrants at their last addresses as the same appear on the Warrant register (provided that if the Company shall give such notice, it shall also give such notice to the Warrant Agent). Such mailing shall be by first class mail and the Company shall contemporaneously issue a press release through PRNewswire or Bloomberg containing substantially the same information as the notice of termination described below. Each such notice of termination shall specify the CUSIP number or numbers of such Warrants, the Termination Date, that the Warrants may not be exercised after 5:00 p.m., New York City time, on the Termination Date, the current Exercise Price, that the Five-Year Terminable Warrants with which such Warrants comprise Units shall also terminate, and the CUSIP number or numbers of such Five-Year Warrants. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any Warrant shall not affect the validity of the proceedings for the termination of any other Warrant. If the conditions described in the preceding paragraph have been met, any Warrant not exercised before the close of business on the 60th day after the mailing date of the notice of termination (such 60th day, the "Termination Date") shall become void and all of the rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. The Exercise Price and the number of shares of Common Stock purchasable upon exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of Section 13 of the Warrant Agreement the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12 of the Warrant Agreement. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this calculation, the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. The Company covenants that it will at all times through 5:00 p.m., New York time, on the Expiration Date (or, if the Expiration Date shall not be a Business Day, then on the next-succeeding Business Day) reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury or a combination thereof of Common Stock, solely for the purpose of issue upon exercise of Warrants as herein provided, sufficient shares of Common Stock, for issuance upon exercise of, the Warrants from time to time as such Warrants are presented for exercise. The Company covenants that all shares of Common Stock issued upon exercise of Warrants shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof. The initial issuance of certificates of Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrantholders for any tax in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised, subject to the restrictions on transfer set forth herein and in the Warrant Agreement; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Subject to the terms and provisions of the Registration Rights Agreement, the Company shall file under the Securities Act a registration statement providing for the registration of all of the Warrants and the shares of Common Stock issuable upon exercise thereof. As provided in the Warrant Agreement and the Registration Rights Agreement, the Warrantholders have additional rights and duties with respect to the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants. A Warrantholder may be required to indemnify and hold the Company and certain other persons harmless in connection with written information furnished to the Company by or on behalf of such Warrantholder specifically for use in any registration statement, or any preliminary or final or summary Prospectus contained therein or any amendment or supplement thereto. By its acceptance of any Warrant represented by a Warrant Certificate bearing a restrictive legend, each holder and beneficial owner of such a Warrant acknowledges the restrictions on transfer of such a Warrant set forth in such legend and agrees that it will transfer such a Warrant only in accordance with such legend. Subject to the restrictions on transfer set forth herein and in the Warrant Agreement, this Warrant and all rights hereunder are transferable by the registered Warrantholder hereof, in whole or in part, on the Warrant register, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached "Form of Assignment," by the registered Warrantholder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, the Company will issue and the Warrant Agent will countersign and deliver to such Warrantholder a new Warrant Certificate or Warrant Certificates with respect to any portion not so transferred. Each taker and holder of this Warrant, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, the Company and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the holder of this Warrant shall not be entitled, as such, to any rights of a stockholder of the Company, including, without limitation, the right to vote or to consent to any action of the stockholders of the Company, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders of the Company, and shall not be entitled to receive any notice of any proceedings of the Company except as provided in the Warrant Agreement. Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. This Warrant shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. TIVO INC. By: /s/ Michael Ramsay -------------------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney -------------------------------- Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer Countersigned: THE BANK OF NEW YORK as Warrant Agent By: /s/ Michael Pitfick -------------------------------- Authorized Signatory Dated: August 28, 2001 EXERCISE FORM (To be executed only upon exercise of Warrant) The undersigned registered holder of a Warrant Certificate representing __________ Warrants irrevocably elects to exercise ________ of the Warrants represented by the Warrant Certificate for the purchase of one share (subject to adjustment as set forth in the Warrant Agreement) of Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and herewith makes payment of $______ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), all at the exercise price and on the terms and conditions specified in the Warrant and the Warrant Agreement therein referred to, and surrenders all of its right, title and interest in the number of Warrants exercised herein to TiVo Inc., and directs that the shares of Common Stock or other securities or property deliverable upon the exercise of such Warrants, and any Warrant Certificate or interests in the Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. Dated: ________________________________________ (Signature of Warrantholder) ________________________________________ (Street Address) ________________________________________ (City) (State) (Zip Code) Signature Guaranteed By: ________________________________________ This form must be delivered to the Warrant Agent at the Corporate Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM (Common Stock or Notes: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER:_____________________________________________________________ ACCOUNT NAME:_______________________________________________________________ ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ FORM OF ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below:
Social Security Number Number or Other Name of Assignees Address of Warrants Identifying Number ----------------- ------- ----------- ------------------
and does hereby irrevocably constitute and appoint ________________________, the undersigned's attorney, to make such transfer on the books of TiVo Inc. maintained for the purpose, with full power of substitution in the premises. In connection with any transfer occurring within two years (or such longer or shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Warrant (unless such Warrant is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Warrant is being transferred: _ |_| *To TiVo Inc. or a subsidiary thereof; or _ |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or _ |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Note is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): _ |_| *The transferee is an Affiliate of the Company. Dated: ________________________________________ (Signature of Warrantholder) ________________________________________ (Street Address) ________________________________________ (City) (State) (Zip Code) Signature Guaranteed By: ________________________________________ EX-16 18 exhibit16.txt 5 YEAR TERMINABLE WARRANT Exhibit 16 ---------- TIVO INC. No. FYTW-17 Unit CUSIP No. 888706 40 5 Warrant CUSIP No. 888706 14 0 THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER APPEARING ON THIS SECURITY) AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE WARRANT AGENT) IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE WARRANT AGENT, (4) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES, THAT PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE WARRANT AGENT AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. EXCEPT AS DESCRIBED IN THE NEXT SENTENCE, EACH WARRANT REPRESENTED BY THIS CERTIFICATE MUST TRADE AS A UNIT WITH ONE ONE-YEAR WARRANT (AS DEFINED IN THE WARRANT AGREEMENT GOVERNING THIS SECURITY) AND MAY NOT BE TRANSFERRED OR EXCHANGED WITHOUT THE SIMULTANEOUS TRANSFER OR EXCHANGE OF CERTIFICATES REPRESENTING ONE ONE-YEAR WARRANT FOR EACH WARRANT BEING TRANSFERRED OR EXCHANGED. UPON THE EXERCISE OF THE ONE-YEAR WARRANTS TO WHICH ALL OR A PORTION OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE RELATE, SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS EXERCISED) MAY BE TRANSFERRED SEPARATELY AND THIS LEGEND SHALL BE REMOVED WITH RESPECT TO SUCH WARRANTS (OR THE PORTION OF SUCH WARRANTS EQUAL TO THE NUMBER OF ONE-YEAR WARRANTS EXERCISED). THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT. WARRANT CERTIFICATE REPRESENTING 742,721 WARRANTS TO PURCHASE COMMON STOCK This certifies that National broadcasting company, inc., or its registered assigns, is the registered owner of seven hundred forty-two thousand seven hundred twenty-one (742,721) Warrants, each expiring August 28, 2006, and each of which entitles the registered owner thereof (the "Warrantholder") to purchase at any time prior to the expiration hereof from TIVO INC., a Delaware corporation (the "Company"), 0.33 of one share of Common Stock (the "Common Stock"), $0.001 par value per share, of the Company at the purchase price of $7.85 per share of Common Stock (the "Exercise Price"), subject to adjustment as provided in the Warrant Agreement hereinafter referred to. The Warrants evidenced by this Warrant are issued under and in accordance with the Warrant Agreement, dated as of August 28, 2001 (the "Warrant Agreement"), between the Company and The Bank of New York, as warrant agent (the "Warrant Agent"), and the Registration Rights Agreement, dated of even date therewith (the "Registration Rights Agreement"), among the Company and the initial purchasers of the Warrants, and are subject to the terms and provisions contained therein, to all of which terms and provisions the holder of this Warrant consents by acceptance of this Warrant and which Warrant Agreement and Registration Rights Agreement are hereby incorporated by reference in and made a part of this Warrant. Until the Separation Date, any Warrants represented by this Certificate shall be transferable or exchangeable only as a Unit with a like number of One-Year Warrants (as defined in the Warrant Agreement). The Separation Date, with respect to any Warrant shall be the date upon which such One-Year Warrant with which such Warrant comprises a Unit shall have been exercised in accordance with its terms and the terms of the One-Year Warrant Agreement (as defined in the Warrant Agreement). [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Reference is hereby made to the Warrant Agreement and the Registration Rights Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Warrantholders. The summary of the terms of the Warrant Agreement and the Registration Rights Agreement contained in this Warrant is qualified in its entirety by express reference to such agreements. All capitalized terms used but not defined in this Warrant shall have the meanings assigned to them in the Warrant Agreement. As provided in the Warrant Agreement, and subject to the terms and conditions set forth therein including early termination of the Warrants, the Warrants shall be exercisable, unless earlier terminated as described below, at any time during the period commencing on the Separation Date and ending at 5:00 p.m., New York time, on August 28, 2006 (the "Expiration Date"). This Warrant may be exercised on any Business Day on or prior to close of business on the Expiration Date. Any Warrant not exercised before the close of business on the Expiration Date, or the Termination Date, as the case may be, shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. With respect to any Warrant, if at any time prior to the Expiration Date, the One-Year Warrant with which such Warrant comprises a Unit expires or terminates pursuant to the terms of the One-Year Warrant Agreement without having been exercised pursuant to the terms thereof (the date of such expiration or termination, the "Termination Date") then such Warrant shall terminate if not exercised before 5:00 p.m., New York City time, on the Termination Date. The Exercise Price and the number of shares of Common Stock purchasable upon exercise of each Warrant are subject to adjustment as provided in the Warrant Agreement. If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or combination of the Company with another person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, (iii) any statutory exchange, as a result of which holders of Common Stock generally shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock (such transaction, a "Statutory Exchange"), (iv) any sale or conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other person as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing person, as the case may be, shall execute with the Warrant Agent a supplemental warrant agreement providing that such Warrant shall be exercisable for the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance by a holder of a number of shares of Common Stock issuable upon exercise of such Warrants (assuming, for such purposes, a sufficient number of authorized shares of Common Stock available for issuance upon exercise of all such Warrants) immediately prior to such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, that holders of Common Stock who were entitled to vote or consent to such transaction had as to the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purposes of Section 13 of the Warrant Agreement the kind and amount of securities, cash or other property receivable upon such consolidation, merger, combination, Statutory Exchange, sale or conveyance for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in Section 12 of the Warrant Agreement. If, in the case of any such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of shares of Common Stock include shares of stock or other securities and assets of a corporation other than the successor or purchasing person, as the case may be, in such reclassification, change, consolidation, merger, combination, Statutory Exchange, sale or conveyance, then such supplemental warrant agreement shall also be executed by such other person and shall contain such additional provisions to protect the interests of the holders of the Warrants as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The Exercise Price for the stock and other securities, property and assets (including cash) so receivable upon such event shall be an amount equal to the Exercise Price immediately prior to such event. The Company shall not be required to issue fractions of shares of Common Sock upon exercise of the Warrants or to distribute certificates which evidence such fractional shares. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full shares of Common Stock which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of shares of Common Stock purchasable on exercise of all Warrants so presented. In lieu any of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this calculation, the current market value of a share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading Day immediately prior to the date of such exercise. The Company covenants that it will at all times through 5:00 p.m., New York time, on the Expiration Date (or, if the Expiration Date shall not be a Business Day, then on the next-succeeding Business Day) reserve, free from preemptive rights, and keep available out of its authorized but unissued shares or shares held in treasury or a combination thereof of Common Stock, solely for the purpose of issue upon exercise of Warrants as herein provided, sufficient shares of Common Stock, for issuance upon exercise of, the Warrants from time to time as such Warrants are presented for exercise. The Company covenants that all shares of Common Stock issued upon exercise of Warrants shall be duly and validly issued and fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof. The initial issuance of certificates of Common Stock upon the exercise of Warrants shall be made without charge to the exercising Warrantholders for any tax in respect of the issuance of such stock certificates, and such stock certificates shall be issued in the respective names of, or in such names as may be directed by, the registered holders of the Warrants exercised, subject to the restrictions on transfer set forth herein and in the Warrant Agreement; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such stock certificate, any Warrant Certificates or other securities in a name other than that of the registered holder of the Warrant Certificate surrendered upon exercise of the Warrant, and the Company shall not be required to issue or deliver such certificates or other securities unless and until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Subject to the terms and provisions of the Registration Rights Agreement, the Company shall file under the Securities Act a registration statement providing for the registration of all of the Warrants and the shares of Common Stock issuable upon exercise thereof. As provided in the Warrant Agreement and the Registration Rights Agreement, the Warrantholders have additional rights and duties with respect to the registration of the Warrants and the Common Stock issuable upon exercise of the Warrants. A Warrantholder may be required to indemnify and hold the Company and certain other persons harmless in connection with written information furnished to the Company by or on behalf of such Warrantholder specifically for use in any registration statement, or any preliminary or final or summary Prospectus contained therein or any amendment or supplement thereto. By its acceptance of any Warrant represented by a Warrant Certificate bearing a restrictive legend, each holder and beneficial owner of such a Warrant acknowledges the restrictions on transfer of such a Warrant set forth in such legend and agrees that it will transfer such a Warrant only in accordance with such legend. Subject to the restrictions on transfer set forth herein and in the Warrant Agreement, this Warrant and all rights hereunder are transferable by the registered Warrantholder hereof, in whole or in part, on the Warrant register, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached "Form of Assignment," by the registered Warrantholder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, the Company will issue and the Warrant Agent will countersign and deliver to such Warrantholder a new Warrant Certificate or Warrant Certificates with respect to any portion not so transferred. Each taker and holder of this Warrant, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, the Company and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the holder of this Warrant shall not be entitled, as such, to any rights of a stockholder of the Company, including, without limitation, the right to vote or to consent to any action of the stockholders of the Company, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders of the Company, and shall not be entitled to receive any notice of any proceedings of the Company except as provided in the Warrant Agreement. Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: The Bank of New York 101 Barclay Street, Floor 21W New York, NY 10286 Attention: Corporate Trust Administration THE WARRANT AGREEMENT AND THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. This Warrant shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. TIVO INC. By: /s/ Michael Ramsay ------------------------------- Name: Michael Ramsay Title: President and Chief Executive Officer Attest: By: /s/ David H. Courtney -------------------------------- Name: David H. Courtney Title: Senior Vice President, Finance and Administration and Chief Financial Officer Countersigned: THE BANK OF NEW YORK as Warrant Agent By: /s/ Michael Pitfick --------------------------- Authorized Signatory Dated: August 28, 2001 EXERCISE FORM (To be executed only upon exercise of Warrant) The undersigned registered holder of a Warrant Certificate representing __________ Warrants irrevocably elects to exercise __________ of the Warrants represented by the Warrant Certificate for the purchase of 0.33 of one share (subject to adjustment as set forth in the Warrant Agreement) of Common Stock, $0.001 par value, of TiVo Inc., for each Warrant so exercised, and herewith makes payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), tenders $_______ principal amount of the Company's 7% Convertible Senior Notes due 2006, plus payment of $__________ (such payment being in cash or by certified or official bank check payable to the order or at the direction of TiVo Inc.), elects to make a "Cashless Exercise" of such Warrants as provided in Section 10(b) of the Warrant Agreement, all at the exercise price and on the terms and conditions specified in the Warrant and the Warrant Agreement therein referred to, and surrenders all of its right, title and interest in the number of Warrants exercised herein to TiVo Inc., and directs that the shares of Common Stock or other securities or property deliverable upon the exercise of such Warrants, and any Warrant Certificate or interests in the Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. Dated: ________________________________________ (Signature of Warrantholder) ________________________________________ (Street Address) ________________________________________ (City) (State) (Zip Code) Signature Guaranteed By: ________________________________________ This form must be delivered to the Warrant Agent at the Corporate Office, which initially shall be 101 Barclay Street, Floor 21W, New York, N.Y. 10286, Attention: Corporate Trust Administration. Copies of this form must be sent by facsimile to TiVo Inc., attention General Counsel ((650) 519-5333) and Latham & Watkins, attention John Donohue ((650) 463-2600). 1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO: IF IN CERTIFICATED FORM (Common Stock or Notes: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ IF IN BOOK-ENTRY FORM THROUGH DTC: ACCOUNT NUMBER:_____________________________________________________________ ACCOUNT NAME:_______________________________________________________________ ANY UNEXERCISED WARRANTS REPRESENTED BY THE EXERCISING HOLDER'S INTEREST IN THE WARRANT TO BE ISSUED IN CERTIFICATED FORM TO: Social Security Number or identifying number: ______________________________ Name: ______________________________________________________________________ Street Address:_____________________________________________________________ City, State and Zip Code:___________________________________________________ FORM OF ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below:
Social Security Number Number or Other Name of Assignees Address of Warrants Identifying Number ----------------- ------- ----------- ------------------
and does hereby irrevocably constitute and appoint ________________________, the undersigned's attorney, to make such transfer on the books of TiVo Inc. maintained for the purpose, with full power of substitution in the premises. In connection with any transfer occurring within two years (or such longer or shorter holding period required under Rule 144(k) of the Securities Act) of the original issuance of such Warrant (unless such Warrant is being transferred pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Warrant is being transferred: _ |_| *To TiVo Inc. or a subsidiary thereof; or _ |_| *To an Institutional Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *To an Individual Accredited Investor pursuant to and in compliance with the Securities Act of 1933, as amended; or _ |_| *In an offshore transaction pursuant to and in compliance with Regulation S under the Securities Act of 1933, as amended; or _ |_| *Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; and unless the box below is checked, the undersigned confirms that such Note is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"): _ |_| *The transferee is an Affiliate of the Company. Dated: ________________________________________ (Signature of Warrantholder) ________________________________________ (Street Address) ________________________________________ (City) (State) (Zip Code) Signature Guaranteed By: ________________________________________ EX-17 19 exhibit17.txt NOMINEE AGREEMENT Exhibit 17 ---------- NOMINEE AGREEMENT THIS NOMINEE AGREEMENT is entered into as of September 20, 2000, by and between NATIONAL BROADCASTING COMPANY, INC. ("NBC") and DAVID M. ZASLAV ("Zaslav"). RECITALS WHEREAS, Zaslav has received an option to purchase 20,000 shares of the Common Stock of TIVO INC. ("TiVo") pursuant to the TiVo 1999 Non-Employee Directors' Stock Option Plan (the "Plan"), and Zaslav will automatically receive annual options under the Plan as long as he is serving as a non-employee director of TiVo (collectively the "Options"); WHEREAS, TiVo has granted, and will grant, the Options to Zaslav in connection with his service to TiVo as a non-employee director; WHEREAS, Zaslav has provided, and will provide, such services to TiVo solely in his capacity as an employee of, and at the request of, NBC and, accordingly, the Options are the property of NBC; WHEREAS, solely for convenience, Zaslav has acquired, and will acquire, legal title to the Options; WHEREAS, NBC desires that Zaslav hold the Options merely as nominee for NBC; and WHEREAS, Zaslav agrees to hold the Options solely as nominee for NBC. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged hereby, the parties hereto agree as follows: AGREEMENT 1. Zaslav agrees that he will hold the Options merely as nominee for NBC. Zaslav agrees that he has no discretionary duties with respect to the Options but must act only on explicit instructions of NBC. Zaslav agrees to act upon such instructions. 2. Zaslav agrees to hold the Options for convenience only and acknowledges that he will not have and agrees that he will not assert ownership of the Options (except in his capacity as an equity holder of General Electric Company). 3. Zaslav agrees to fully account to NBC as to the Options. 4. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, that all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. NATIONAL BROADCASTING COMPANY, INC. By: /s/ Elizabeth A. Newell ------------------------------------- Name: Elizabeth A. Newell Title: Assistant Secretary /s/ David M. Zaslav -------------------------------- DAVID M. ZASLAV The undersigned hereby acknowledges and consents to the duties and obligations of ZASLAV to NBC as a nominee thereof under this Agreement. TiVO INC. By:/s/ Matthew Zinn ---------------------------- Name: Matthew Zinn Title: Vice President and General Counsel -----END PRIVACY-ENHANCED MESSAGE-----