EXHIBIT 4.4
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FORM OF WARRANT
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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
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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.
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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
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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
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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
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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
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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
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therewith (the "Registration Rights Agreement"), among the Company and the
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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:
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