Exhibit 99.3
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.
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"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
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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.
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"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
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"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
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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
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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
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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
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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;
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(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.
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(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.
11
(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
12
(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
13
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
14
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)
15
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
16
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.
17
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
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
Alan C. Mendelson
----------------------------------
(Name of Purchaser)
By: /s/ Alan C. Mendelson
-------------------------------
Name:
Title:
RGC International Investors LDC
----------------------------------
(Name of Purchaser)
By: Rose Glen Capital Management,
L.P.
By: RGC General Partners Corp.
By: /s/ Steve Katznelson
-------------------------------
Name: Steve Katznelson
Title: Managing Director
Capital Ventures International
----------------------------------
(Name of Purchaser)
By: Heights Capital Management, Inc.
its authorized agent
By: /s/ Andrew Frost
-------------------------------
Name: Andrew Frost
Title: President
JMG Triton Offshore Fund, Ltd.
----------------------------------
(Name of Purchaser)
By: /s/ Jonathan Glaser
-------------------------------
Name: Jonathan Glaser
Title:
JMG Capital Partners, L.P.
----------------------------------
(Name of Purchaser)
By: /s/ Jonathan Glaser
-------------------------------
Name: Jonathan Glaser
Title:
Gryphon Master Fund, L.P.
----------------------------------
(Name of Purchaser)
By: /s/ E B Lyon, IV
-------------------------------
Name: E B Lyon, IV
Title: Partner
Langley Partners, LP
----------------------------------
(Name of Purchaser)
By: /s/ Jeffrey Thorp
-------------------------------
Name: Jeffrey Thorp
Title: Managing Member of G.P.
Woodmont Investments Ltd.
----------------------------------
(Name of Purchaser)
By: /s/ Jay G. Goldman
-------------------------------
Name: Jay G. Goldman
Title: Portfolio Manager
Newberg Family Trust UTD 12/18/90
----------------------------------
(Name of Purchaser)
By: /s/ Bruce Newberg
-------------------------------
Name: Bruce Newberg
Title: Trustee
R/2/ CAPS, Ltd.
----------------------------------
(Name of Purchaser)
By: Amalgamated Gadget, L.P., as
Investment Manager
By: Scepter Holdings, Inc.,
General Partner
By: /s/ Robert McCormick
-------------------------------
Name: Robert McCormick
Title: Vice President
Castleberry Technology Partners LLC
----------------------------------
(Name of Purchaser)
By: /s/ Thomas A. Frei
-------------------------------
Name: Thomas A. Frei
Title: Managing Director of the
Investment Manager
Cohanzick Partners, L.P.
----------------------------------
(Name of Purchaser)
By: /s/ David K. Sherman
-------------------------------
Name: David K. Sherman
Title: Authorized Agent
Sheperd Trading Ltd.
----------------------------------
(Name of Purchaser)
By: /s/ Michael G. Roth
-------------------------------
Name: Michael G. Roth
Title:
Reliant Trading
----------------------------------
(Name of Purchaser)
By: /s/ Michael G. Roth
-------------------------------
Name: Michael G. Roth
Title:
Sagamore Hill Hub Fund Ltd
----------------------------------
(Name of Purchaser)
By: /s/ Stephen S. Roth
-------------------------------
Name: Stephen S. Roth
Title: Managing Director
Macke Asset Management
----------------------------------
(Name of Purchaser)
By: /s/ Jeffrey Macke
-------------------------------
Name: Jeffrey Macke
Title:
National Broadcasting Company, Inc.
-----------------------------------
(Name of Purchaser)
By: /s/ David Zaslav
-------------------------------
Name: David Zaslav
Title: Executive Vice President
British Sky Broadcasting Group PLC
----------------------------------
(Name of Purchaser)
By: /s/ Richard Freudenstein
-------------------------------
Name: Richard Freudenstein
Title: Chief Operating Officer
Discovery Communications, Inc.
----------------------------------
(Name of Purchaser)
By: /s/ Barbara Bennett
-------------------------------
Name: Barbara Bennett
Title: Senior Vice President and
Treasurer
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
SCHEDULE A
PURCHASERS
Sch. A-1
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:_________________________________
Ex. A-1
cc: Latham & Watkins
505 Montgomery Street
San Francisco, CA 94111
Attention: Laura L. Gabriel, Esq.
Ex. A-2