Exhibit 4.1
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FORM OF 7% CONVERTIBLE SENIOR NOTE
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TIVO INC.
[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
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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.
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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
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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
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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.
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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
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[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)
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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 not as tenants Uniform Gifts to Minors Act ___________
in common (State)
Additional abbreviations may also be used
though not in the above list.
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