As filed with the Securities and Exchange Commission on February 25, 2002
Registration No. 333-53152
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT #3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TIVO INC.
(Exact name of Registrant as specified in its charter)
Delaware 2160 Gold Street, PO Box 2160 77-0463167
State or other jurisdiction of Alviso, CA 95002 (I.R.S. Employer
incorporation or organization) (408) 519-9100 Number) Identification
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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Michael Ramsay
Chief Executive Officer
TiVo Inc.
2160 Gold Street, PO Box 2160
Alviso, CA 95002
(408) 519-9100
(Name, address, including ZIP code, and telephone number, including area code,
of agent for service)
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Copies to:
Alan C. Mendelson, Esq.
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
(415) 328-4600
and
Laura L. Gabriel, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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The information contained in this prospectus is not complete and may be
changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 25, 2002
PROSPECTUS
$75,000,000
TIVO INC.
Debt Securities
Preferred Stock
Common Stock
Equity Warrants
Debt Warrants
We may, from time to time, sell up to $75,000,000 in the aggregate of:
. our secured or unsecured debt securities, in one or more series, which may
be either senior, senior subordinated or subordinated debt securities;
. shares of our preferred stock, par value $0.001 per share, in one or more
series;
. shares of our common stock, par value $0.001 per share;
. warrants to purchase our preferred stock or our common stock;
. warrants to purchase our debt securities; or
. any combination of the foregoing.
We will provide the specific terms of these securities in supplements to
this prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
See "Risk Factors" beginning on page 3 for a discussion of material risks
that you should consider before you invest in our securities being sold with
this prospectus.
Our common stock is traded on the Nasdaq National Market under the symbol
"TIVO." On February 22, 2002, the last reported sale price for our common stock
on the Nasdaq National Market was $4.82 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
We have not authorized any dealer, salesperson or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor does this prospectus and the accompanying
prospectus supplement constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. You should
not assume that the information contained in this prospectus and the
accompanying prospectus supplement is correct on any date after their
respective dates, even though this prospectus or a prospectus supplement is
delivered or securities are sold on a later date.
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TABLE OF CONTENTS
Special Note Regarding Forward-Looking Statements....................................... 1
Available Information................................................................... 1
Incorporation by Reference.............................................................. 2
Risk Factors............................................................................ 3
The Company............................................................................. 3
Liquidity and Capital Resources......................................................... 3
Use of Proceeds......................................................................... 3
Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred
Stock Dividends....................................................................... 4
General Description of Securities....................................................... 5
Description of Debt Securities.......................................................... 5
Description of Preferred Stock.......................................................... 14
Description of Common Stock............................................................. 17
Description of Warrants................................................................. 17
Plan of Distribution.................................................................... 19
Legal Matters........................................................................... 23
Experts................................................................................. 23
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the accompanying prospectus supplement includes or
incorporates by reference forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. These statements relate to future events or our future
product development or financial performance. In some cases, you can identify
forward-looking statements by terminology such as "may," "will," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"potential" or "continue" or the negative of those terms and other comparable
terminology.
These statements reflect only management's current expectations. Important
factors that could cause actual results to differ materially from the
forward-looking statements we make or incorporate by reference in this
prospectus are set forth under the heading "Factors that May Affect Future
Operating Results" in the section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in our most recent
Annual Report on Form 10-K and Quarterly Report on Form 10-Q, as may be updated
from time to time by our future filings under the Securities Exchange Act, and
elsewhere in the documents incorporated by reference in this prospectus and the
accompanying prospectus supplement. If one or more of these risks or
uncertainties materialize, or if any underlying assumptions prove incorrect,
our actual results, performance or achievements may vary materially from any
future results, performance or achievements expressed or implied by these
forward-looking statements. We undertake no obligation to publicly update any
forward-looking statements, whether as a result of new information, future
events or otherwise.
AVAILABLE INFORMATION
We are subject to the information requirements of the Securities Exchange
Act and we therefore file periodic reports, proxy statements and other
information with the Securities and Exchange Commission relating to our
business, financial statements and other matters. The reports, proxy statements
and other information we file may be inspected and copied at prescribed rates
at the Securities and Exchange Commission's Public Reference Room at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operation of the Securities and Exchange Commission's Public Reference Room
by calling the Securities and Exchange Commission at 1-800-SEC-0330. The
Securities and Exchange Commission also maintains an Internet site that
contains reports, proxy statements and other information regarding issuers like
us that file electronically with the Securities and Exchange Commission. The
address of the Securities and Exchange Commission's Internet site is
http://www.sec.gov.
This prospectus constitutes part of a registration statement on Form S-3
filed under the Securities Act with respect to the securities. As permitted by
the Securities and Exchange Commission's rules, this prospectus omits some of
the information, exhibits and undertakings included in the registration
statement. You may read and copy the information omitted from this prospectus
but contained in the registration statement, as well as the periodic reports
and other information we file with the Securities and Exchange Commission, at
the public reference facilities maintained by the Securities and Exchange
Commission in Washington, D.C.
Statements contained in this prospectus as to the contents of any contract
or other document are not necessarily complete, and in each instance we refer
you to the copy of the contract or document filed as an exhibit to the
registration statement, each such statement being qualified in all respects by
such reference.
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INCORPORATION BY REFERENCE
We have elected to "incorporate by reference" certain information into this
prospectus. By incorporating by reference, we can disclose important
information to you by referring you to another document we have filed
separately with the Securities and Exchange Commission. The information
incorporated by reference is deemed to be part of this prospectus, except for
information incorporated by reference that is superseded by information
contained in this prospectus. This prospectus incorporates by reference the
documents set forth below that we have previously filed with the Securities and
Exchange Commission:
. Transition Report on Form 10-K for the one-month transition period ended
January 31, 2001, including information specifically incorporated by
reference into our Form 10-K from our definitive proxy statement for our
2001 Annual Meeting of Stockholders, filed with the Securities and
Exchange Commission on April 30, 2001;
. Amended and Restated Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, including information specifically incorporated by
reference into our Form 10-K from our definitive proxy statement for our
2001 Annual Meeting of Stockholders, filed with the Securities and
Exchange Commission on April 30, 2001;
. Quarterly Report on Form 10-Q for the quarterly period ended April 30,
2001;
. Quarterly Report on Form 10-Q for the quarterly period ended July 31, 2001;
. Quarterly Report on Form 10-Q for the quarterly period ended October 31,
2001;
. Current Reports on Form 8-K filed on January 17, 2001, February 1, 2001,
February 14, 2001, February 28, 2001, March 15, 2001, March 19, 2001, July
24, 2001, August 20, 2001, August 30, 2001, August 31, 2001, October 31,
2001, November 13, 2001, November 26, 2001, December 21, 2001, January 9,
2002, January 10, 2002, February 13, 2002 and February 21, 2002 and an
amendment to Current Report on Form 8-K/A filed on January 19, 2001; and
. the description of our common stock contained in our Registration
Statement on Form 8-A, filed with the Securities and Exchange Commission
on August 25, 1999.
We are also incorporating by reference all other reports that we file with
the Securities and Exchange Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act between the date of this prospectus and
the termination of the offering.
This prospectus may not be used to consummate sales of offered securities
unless accompanied by a prospectus supplement. The delivery of this prospectus
together with a prospectus supplement relating to particular offered securities
in any jurisdiction shall not constitute an offer in the jurisdiction of any
other securities covered by this prospectus.
We will provide to each person, including any beneficial owner, to whom this
prospectus is delivered a copy of any or all of the information that we have
incorporated by reference into this prospectus but not delivered with this
prospectus. To receive a free copy of any of the documents incorporated by
reference in this prospectus, other than exhibits, unless they are specifically
incorporated by reference in those documents, call or write to TiVo Inc.,
Attention: Investor Relations, 2160 Gold Street, PO Box 2160, Alviso, CA 95002
(telephone (408) 519-9345). The information relating to us contained in this
prospectus does not purport to be comprehensive and should be read together
with the information contained in the documents incorporated or deemed to be
incorporated by reference in this prospectus.
2
RISK FACTORS
Before you decide whether to purchase any of our securities, in addition to
the other information in this prospectus, you should carefully consider the
risk factors set forth under the heading "Factors that May Affect Future
Operating Results" in the section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in our most recent
Transition Report on Form 10-K, Annual Report on Form 10-K and Quarterly
Reports on Form 10-Q, which are incorporated by reference into this prospectus,
as the same may be updated from time to time by our future filings under the
Securities Exchange Act. For more information, see the section entitled
"Incorporation by Reference."
If shares of common stock are purchased in a transaction under the February
2002 purchase agreement described below under the heading "Plan of
Distribution--December 2001 and February 2002 Common Stock Purchase
Agreements," existing common stockholders will experience immediate dilution
and, as a result, our stock price may go down.
We have entered into a common stock purchase agreement with Acqua Wellington
North American Equities Fund, Ltd. pursuant to which Acqua Wellington may
purchase shares of our common stock at a discount between 3.0% and 5.4%, unless
otherwise agreed to by us and Acqua Wellington, to be determined as described
in "Plan of Distribution." As a result, our existing common stockholders will
experience immediate dilution upon the purchase of any shares of our common
stock by Acqua Wellington. The purchase agreement with Acqua Wellington
provides that, at our request, Acqua Wellington will purchase a certain dollar
amount of shares, with the exact number of shares to be determined based on the
daily volume weighted average price of our common stock over the draw down
period for such purchase. As a result, if the per share market price of our
common stock declines over the draw down period, Acqua Wellington will receive
a greater number of shares for its purchase price, thereby resulting in further
dilution to our stockholders and potential downward pressure on the price of
our stock.
THE COMPANY
TiVo Inc. was incorporated in August 1997 as a Delaware corporation. We have
developed a subscription-based personal television service which we refer to as
the TiVo Service. The TiVo Service provides viewers with the ability to pause,
rewind and play back live or recorded television broadcasts, as well as to
search for, watch and record programs. The TiVo Service also provides
television listings, daily suggestions and special viewing packages. The TiVo
Service relies on three key components: the personal video recorder, the TiVo
remote control and the TiVo Broadcast Center.
Our executive offices are located at 2160 Gold Street, PO Box 2160, Alviso,
CA 95002, and our telephone number is (408) 519-9100. TiVo Inc. and the TiVo
logo are our service marks. All other service marks and all brand names or
trademarks appearing in this prospectus are the property of their respective
holders.
LIQUIDITY AND CAPITAL RESOURCES
We continually evaluate our business model and strategy, as well as our
capital requirements necessary to fund our operations. We may need to raise
additional capital in order to fund future opportunities. We currently
anticipate that we will seek to raise additional capital through equity or debt
financings in the near term. However, we cannot assure you that we will be able
to raise this additional capital.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities for general
corporate purposes, which may include funding research, development, sales and
marketing, increasing our working capital, reducing indebtedness, and capital
expenditures. Pending the application of the net proceeds, we expect to invest
the proceeds in investment-grade, interest-bearing securities.
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RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
Ratio of Earnings to Fixed Charges
Ratios of earnings to fixed charges are computed by dividing earnings by
fixed charges. Earnings consist of income before income taxes and amortization
of warrant expense in lieu of financing expenses. Fixed charges consist of
interest on all indebtedness and amortization of warrant expense in lieu of
financing expenses.
The following table sets forth our ratios of earnings to fixed charges for
the periods indicated:
Period from
August 4,
1997 Nine Months
(Inception) to Fiscal Year Ended December 31, Month Ended Ended
December 31, ------------------------------ January 31, October 31,
1997 1998 1999 2000 2001 2001
- -------------- ---- ---- ---- ----------- -----------
-- -- -- -- -- --
Earnings for the years ended December 31, 1997, 1998, 1999, 2000, the one
month transition period ended January 31, 2001 and the nine months ended
October 31, 2001 were insufficient to cover fixed charges by the amount of the
net loss of $595,000, $9,721,000, $66,565,000, $206,354,000 $19,013,000 and
$119,141,000 respectively.
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends
Ratios of earnings to combined fixed charges and preferred stock dividends
are computed by dividing earnings by the sum of fixed charges and preferred
stock dividends. Earnings consist of income before income taxes, amortization
of warrant expense in lieu of financing expenses and preferred dividends. Fixed
charges consist of interest on all indebtedness, amortization of warrant
expense in lieu of financing expenses and the preferred dividends.
The following table sets forth our ratios of earnings to combined fixed
charges and preferred stock dividends for the periods indicated:
Period from
August 4,
1997 Nine Months
(Inception) to Fiscal Year Ended December 31, Month Ended Ended
December 31, ------------------------------ January 31, October 31,
1997 1998 1999 2000 2001 2001
-------------- ---- ---- ---- ----------- -----------
-- -- -- -- -- --
Earnings for the years ended December 31, 1997, 1998, 1999, 2000, the one
month transition period ended January 31, 2001 and the nine months ended
October 31, 2001 were insufficient to cover fixed charges by the amount of the
net loss of $595,000, $9,721,000, $66,565,000, $206,354,000 $19,013,000 and
$119,141,000 respectively.
4
GENERAL DESCRIPTION OF SECURITIES
We, directly or through agents, dealers or underwriters designated from time
to time, may offer, issue and sell, together or separately, up to $75,000,000
in the aggregate of:
. secured or unsecured debt securities, in one or more series, which may be
either senior debt securities, senior subordinated debt securities or
subordinated debt securities;
. shares of our preferred stock, par value $0.001 per share, in one or more
series;
. shares of our common stock, par value $0.001 per share;
. warrants to purchase our common stock or our preferred stock;
. warrants to purchase our debt securities; or
. any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing, each on terms to be determined
at the time of sale.
As described under "Plan of Distribution--December 2001 and February 2002
Common Stock Purchase Agreements," on January 10, 2002, we issued $14,000,000
of our common stock under the registration statement of which this prospectus
is a part, leaving us with $61,000,000 of securities that we may issue under
this prospectus as of the date of this prospectus.
We may issue the debt securities as exchangeable for or convertible into
shares of common stock, preferred stock or other securities. The preferred
stock may also be exchangeable for and/or convertible into shares of common
stock, another series of preferred stock or other securities. The debt
securities, the preferred stock, the common stock and the warrants are
collectively referred to herein as the securities. When a particular series of
securities is offered, a supplement to this prospectus will be delivered with
this prospectus, which will set forth the terms of the offering and sale of the
offered securities.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of the debt
securities we may offer pursuant to this prospectus. When we offer to sell a
particular series of debt securities, we will describe the specific terms of
the series in a supplement to this prospectus. The following description of
debt securities will apply to the debt securities offered by this prospectus
unless we provide otherwise in the applicable prospectus supplement and in a
supplement to the indenture, a board resolution, or an officers' certificate
delivered pursuant to the indenture. The applicable prospectus supplement for a
particular series of debt securities may specify different or additional terms.
We may offer under this prospectus up to $75,000,000 aggregate principal
amount of secured or unsecured debt securities, or if debt securities are
issued at a discount, or in a foreign currency or composite currency, such
principal amount as may be sold for an initial public offering price of up to
$75,000,000. The debt securities may be either senior debt securities, senior
subordinated debt securities or subordinated debt securities.
The debt securities offered hereby will be issued under an indenture between
us and a trustee, as trustee. We have filed a copy of the form indenture as an
exhibit to the registration statement and you should read the indenture for
provisions that may be important to you. We have summarized select portions of
the indenture below. The summary is not complete. In the summary below, we have
included references to the section numbers of the indenture so that you can
easily locate these provisions. Capitalized terms used in the summary below
have the meanings specified in the indenture.
General
The terms of each series of debt securities will be established by or
pursuant to a resolution of our Board of Directors and detailed or determined
in the manner provided in a Board of Directors resolution, an officers'
certificate or by a supplemental indenture. (Section 2.2) The particular terms
of each series of debt securities will be described in a prospectus supplement
relating to the series, including any pricing supplement.
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We can issue an unlimited amount of debt securities under the indenture that
may be in one or more series with the same or various maturities, at par, at a
premium, or at a discount. We will set forth in a prospectus supplement
(including any pricing supplement) relating to any series of debt securities
being offered, the initial offering price, the aggregate principal amount and
the following terms of the debt securities:
. the title of the debt securities;
. the price or prices (expressed as a percentage of the aggregate principal
amount) at which we will sell the debt securities;
. any limit on the aggregate principal amount of the debt securities;
. the date or dates on which we will pay the principal on the debt
securities;
. the rate or rates (which may be fixed or variable) per annum or the method
used to determine the rate or rates (including any commodity, commodity
index, stock exchange index or financial index) at which the debt
securities will bear interest, the date or dates from which interest will
accrue, the date or dates on which interest will commence and be payable
and any regular record date for the interest payable on any interest
payment date;
. the place or places where the principal of, premium, and interest on the
debt securities will be payable;
. the terms and conditions upon which we may redeem the debt securities;
. any obligation we have to redeem or purchase the debt securities pursuant
to any sinking fund or analogous provisions or at the option of a holder
of debt securities;
. the dates on which and the price or prices at which we will repurchase the
debt securities at the option of the holders of debt securities and other
detailed terms and provisions of these repurchase obligations;
. the denominations in which the debt securities will be issued, if other
than denominations of $1,000 and any integral multiple thereof;
. whether the debt securities will be issued in the form of certificated
debt securities or global debt securities;
. the portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount;
. the currency of denomination of the debt securities;
. the designation of the currency, currencies or currency units in which
payment of principal of, premium and interest on the debt securities will
be made;
. if payments of principal of, premium or interest on the debt securities
will be made in one or more currencies or currency units other than that
or those in which the debt securities are denominated, the manner in which
the exchange rate with respect to these payments will be determined;
. the manner in which the amounts of payment of principal of, premium or
interest on the debt securities will be determined, if these amounts may
be determined by reference to an index based on a currency or currencies
other than that in which the debt securities are denominated or designated
to be payable or by reference to a commodity, commodity index, stock
exchange index or financial index;
. any provisions relating to any security provided for the debt securities;
. any addition to or change in the Events of Default described in this
prospectus or in the indenture with respect to the debt securities and any
change in the acceleration provisions described in this prospectus or in
the indenture with respect to the debt securities;
. any addition to or change in the covenants described in this prospectus or
in the indenture with respect to the debt securities;
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. any other terms of the debt securities, which may modify or delete any
provision of the indenture as it applies to that series; and
. any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt securities.
(Section 2.2)
We may issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of acceleration
of their maturity pursuant to the terms of the indenture. We will provide you
with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable
prospectus supplement.
If we denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest on any series of debt securities is
payable in a foreign currency or currencies or a foreign currency unit or
units, we will provide you with information on the restrictions, elections,
general tax considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or currencies or
foreign currency unit or units in the applicable prospectus supplement.
Payment of Interest and Exchange
Each debt security will be represented by either one or more global
securities registered in the name of The Depository Trust Company, as
Depositary, or a nominee of the Depositary (we will refer to any debt security
represented by a global debt security as a book-entry debt security), or a
certificate issued in definitive registered form (we will refer to any debt
security represented by a certificated security as a certificated debt
security), as described in the applicable prospectus supplement. Except as
described under "Global Debt Securities and Book-Entry System" below,
book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated
debt securities at the trustee's office or paying agencies in accordance with
the terms of the indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the
principal of, premium and interest on certificated debt securities only by
surrendering the old certificate representing those certificated debt
securities and either we or the trustee will reissue the old certificate to the
new holder or we or the trustee will issue a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security
representing book-entry debt securities will be deposited with, or on behalf
of, the Depositary, and registered in the name of the Depositary or a nominee
of the Depositary.
The Depositary has indicated it intends to follow the following procedures
with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will be
limited to persons that have accounts with the Depositary for the related
global debt security (we shall refer to these persons as participants) or
persons that may hold interests through participants. Upon the issuance of a
global debt security, the Depositary will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the book-entry debt securities represented by
the global debt security beneficially owned by such participants. The accounts
to be credited will be designated by any dealers, underwriters or agents
participating in the distribution of the book-entry debt securities. Ownership
of book-entry debt securities will be shown on, and the transfer of the
ownership interests will be effected only through, records maintained by the
Depositary for the related global debt security (with respect to interests of
participants) and on the records of participants (with
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respect to interests of persons holding through participants). The laws of some
states may require that certain purchasers of securities take physical delivery
of such securities in definitive form. These laws may impair the ability to
own, transfer or pledge beneficial interests in book-entry debt securities.
So long as the Depositary for a global debt security, or its nominee, is the
registered owner of that global debt security, the Depositary or its nominee,
as the case may be, will be considered the sole owner or holder of the
book-entry debt securities represented by such global debt security for all
purposes under the indenture. Except as described herein, beneficial owners of
book-entry debt securities will not be entitled to have securities registered
in their names, will not receive or be entitled to receive physical delivery of
a certificate in definitive form representing securities and will not be
considered the owners or holders of those securities under the indenture.
Accordingly, to exercise any rights of a holder under the indenture, each
person beneficially owning book-entry debt securities must rely on the
procedures of the Depositary for the related global debt security and, if that
person is not a participant, on the procedures of the participant through which
that person owns its interest.
We understand, however, that under existing industry practice, the
Depositary will authorize the persons on whose behalf it holds a global debt
security to exercise certain rights of holders of debt securities, and the
indenture provides that we, the trustee and our respective agents will treat as
the holder of a debt security the persons specified in a written statement of
the Depositary with respect to that global debt security for purposes of
obtaining any consents or directions required to be given by holders of the
debt securities pursuant to the indenture. (Section 2.14.6)
We will make payments of principal of, and premium and interest on
book-entry debt securities to the Depositary or its nominee, as the case may
be, as the registered holder of the related global debt security. (Section
2.14.5) We, the trustee and any other agent of ours or agent of the trustee
will not have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a
global debt security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
We expect that the Depositary, upon receipt of any payment of principal of,
premium or interest on a global debt security, will immediately credit
participants' accounts with payments in amounts proportionate to the respective
amounts of book-entry debt securities held by each participant as shown on the
records of the Depositary. We also expect that payments by participants to
owners of beneficial interests in book-entry debt securities held through those
participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of those participants.
We will issue certificated debt securities in exchange for each global debt
security if the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Securities
Exchange Act, and a successor Depositary registered as a clearing agency under
the Securities Exchange Act is not appointed by us within 90 days. In addition,
we may at any time and in our sole discretion determine not to have any of the
book-entry debt securities of any series represented by one or more global debt
securities and, in that event, we will issue certificated debt securities in
exchange for the global debt securities of that series. Global debt securities
will also be exchangeable by the holders for certificated debt securities if an
event of default with respect to the book-entry debt securities represented by
those global debt securities has occurred and is continuing. Any certificated
debt securities issued in exchange for a global debt security will be
registered in such name or names as the Depositary shall instruct the trustee.
We expect that such instructions will be based upon directions received by the
Depositary from participants with respect to ownership of book-entry debt
securities relating to such global debt security.
We have obtained the foregoing information in this section concerning the
Depositary and the Depositary's book-entry system from sources we believe to be
reliable, but we take no responsibility for the accuracy of this information.
8
No Protection in the Event of a Change of Control
Unless we provide otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions which may afford holders of the
debt securities protection in the event we have a change in control or in the
event of a highly leveraged transaction (whether or not such transaction
results in a change in control).
Covenants
Unless we provide otherwise in the applicable prospectus supplement, the
debt securities will not contain any restrictive covenants, including covenants
restricting us or any of our subsidiaries from incurring, issuing, assuming or
guarantying any indebtedness secured by a lien on any of our or our
subsidiaries' property or capital stock, or restricting us or any of our
subsidiaries from entering into any sale and leaseback transactions.
Consolidation, Merger and Sale of Assets
Unless we provide otherwise in the applicable prospectus supplement, we may
not consolidate with or merge into, or convey, transfer or lease all or
substantially all of our properties and assets to, any person (a "successor
person"), and we may not permit any person to merge into, or convey, transfer
or lease its properties and assets substantially as an entirety to us, unless:
. the successor person is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic
jurisdiction and expressly assumes our obligations on the debt securities
and under the indenture;
. immediately after giving effect to the transaction, no event of default,
and no event which, after notice or lapse of time, or both, would become
an event of default, shall have occurred and be continuing under the
indenture; and
. certain other conditions are met. (Section 5.1)
Events of Default
Unless we provide otherwise in the applicable prospectus supplement, "event
of default" means with respect to any series of debt securities, any of the
following:
. default in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of that default
for a period of 90 days (unless the entire amount of such payment is
deposited by us with the trustee or with a paying agent prior to the
expiration of the 90-day period);
. default in the payment of principal of or premium on any debt security of
that series when due and payable;
. default in the deposit of any sinking fund payment, when and as due in
respect of any debt security of that series;
. default in the performance or breach of any other covenant or warranty by
us in the indenture (other than a covenant or warranty that has been
included in the indenture solely for the benefit of a series of debt
securities other than that series), which default continues uncured for a
period of 60 days after we receive written notice from the trustee or we
and the trustee receive written notice from the holders of at least 51% in
principal amount of the outstanding debt securities of that series as
provided in the indenture;
. certain events of our bankruptcy, insolvency or reorganization; and
. any other event of default provided with respect to debt securities of
that series that is described in the applicable prospectus supplement
accompanying this prospectus.
9
No event of default with respect to a particular series of debt securities
(except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of
debt securities. (Section 6.1) An event of default may also be an event of
default under our bank credit agreements or other debt securities in existence
from time to time and under certain guaranties by us of any subsidiary
indebtedness. In addition, certain Events of Default or an acceleration under
the indenture may also be an event of default under some of our other
indebtedness outstanding from time to time.
Unless we provide otherwise in the applicable prospectus supplement, if an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing (other than certain events of our
bankruptcy, insolvency or reorganization), then the trustee or the holders of
not less than 51% in principal amount of the outstanding debt securities of
that series may, by written notice to us (and to the trustee if given by the
holders), declare to be due and payable immediately the principal (or, if the
debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) and premium
of all debt securities of that series. In the case of an event of default
resulting from certain events of bankruptcy, insolvency or reorganization, the
principal (or such specified amount) and premium of all outstanding debt
securities will become and be immediately due and payable without any
declaration or other act by the trustee or any holder of outstanding debt
securities. At any time after a declaration of acceleration with respect to
debt securities of any series has been made, but before the trustee has
obtained a judgment or decree for payment of the money due, the holders of a
majority in principal amount of the outstanding debt securities of that series
may, subject to our having paid or deposited with the trustee a sum sufficient
to pay overdue interest and principal which has become due other than by
acceleration and certain other conditions, rescind and annul such acceleration
if all Events of Default, other than the non-payment of accelerated principal
and premium with respect to debt securities of that series, have been cured or
waived as provided in the indenture. (Section 6.2) For information as to waiver
of defaults see the discussion under "Modification and Waiver" below. We refer
you to the prospectus supplement relating to any series of debt securities that
are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of the discount securities upon the
occurrence of an event of default and the continuation of an event of default.
The indenture provides that the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
holder of outstanding debt securities, unless the trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Section 7.1(e))
Subject to certain rights of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series. (Section
6.12)
Unless we provide otherwise in the applicable prospectus supplement, no
holder of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
. that holder has previously given to the trustee written notice of a
continuing event of default with respect to debt securities of that
series; and
. the holders of at least 51% in principal amount of the outstanding debt
securities of that series have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as
trustee, and the trustee shall not have received from the holders of a
majority in principal amount of the outstanding debt securities of that
series a direction inconsistent with that request and has failed to
institute the proceeding within 60 days. (Section 6.7)
Notwithstanding the foregoing, the holder of any debt security will have an
absolute and unconditional right to receive payment of the principal of,
premium and any interest on that debt security on or after the due dates
expressed in that debt security and to institute suit for the enforcement of
payment. (Section 6.8)
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The indenture requires us, within 90 days after the end of our fiscal year,
to furnish to the trustee a statement as to compliance with the indenture.
(Section 4.3) The indenture provides that the trustee may withhold notice to
the holders of debt securities of any series of any default or event of default
(except in payment on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that withholding
notice is in the interest of the holders of those debt securities. (Section 7.5)
Modification and Waiver
Unless we provide otherwise in the applicable prospectus supplement, we and
the trustee may modify and amend the indenture with the consent of the holders
of at least a majority in principal amount of the outstanding debt securities
of each series affected by the modifications or amendments. We and the trustee
may not make any modification or amendment without the consent of the holder of
each affected debt security then outstanding if that amendment will:
. change the amount of debt securities whose holders must consent to an
amendment or waiver;
. reduce the rate of or extend the time for payment of interest (including
default interest) on any debt security;
. reduce the principal of or premium on or change the fixed maturity of any
debt security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation with respect to any
series of debt securities;
. reduce the principal amount of discount securities payable upon
acceleration of maturity;
. waive a default in the payment of the principal of, premium or interest on
any debt security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities of that
series and a waiver of the payment default that resulted from that
acceleration);
. make the principal of or premium or interest on any debt security payable
in currency other than that stated in the debt security; make any change
to certain provisions of the indenture relating to, among other things,
the right of holders of debt securities to receive payment of the
principal of, premium and interest on those debt securities, the right of
the holders to institute suit for the enforcement of the payment, the
right of holders to waive past defaults or amendments to the limitations
described in this bullet point; or
. waive a redemption payment with respect to any debt security or change any
of the provisions with respect to the redemption of any debt securities.
(Section 9.3)
Except for certain specified provisions, the holders of at least a majority
in principal amount of the outstanding debt securities of any series may, on
behalf of the holders of all debt securities of that series, waive our
compliance with provisions of the indenture. (Section 9.2) The holders of a
majority in principal amount of the outstanding debt securities of any series
may, on behalf of the holders of all the debt securities of that series, waive
any past default under the indenture with respect to that series and its
consequences, except a default in the payment of the principal of, premium or
any interest on any debt security of that series; provided, however, that the
holders of a majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration and its consequences, including any
related payment default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless the terms of the
applicable series of debt securities provide otherwise, we may be discharged
from any and all obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or exchange of debt
securities of the series, to replace stolen, lost or mutilated debt securities
of the series, and to maintain paying agencies and certain provisions
11
relating to the treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money and/or U.S.
government obligations or, in the case of debt securities denominated in a
single currency other than U.S. dollars, foreign government obligations (as
described at the end of this section), that, through the payment of interest
and principal in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal, premium and
interest on and any mandatory sinking fund payments in respect of the debt
securities of that series on the stated maturity of such payments in accordance
with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to
the trustee an officers' certificate and an opinion of counsel stating that we
have received from, or there has been published by, the United States Internal
Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable United States federal income tax law,
in either case to the effect that holders of the debt securities of such series
will not recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants. The indenture provides that, unless the
terms of the applicable series of debt securities provide otherwise, upon
compliance with certain conditions, we may omit to comply with the restrictive
covenants contained in Sections 4.2 (SEC Reports), 4.3 through 4.6 (Compliance
Certificate; Stay, Extension and Usury Laws; Corporate Existence; Taxes) and
Section 5.1 (When We May Merge, Etc.) of the indenture, as well as any
additional covenants contained in a supplement to the indenture, a board
resolution or an officers' certificate delivered pursuant to the indenture.
The conditions include:
. depositing with the trustee money and/or U.S. government obligations or,
in the case of debt securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through the payment of
interest and principal in accordance with their terms, will provide money
in an amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay principal, premium and interest on
and any mandatory sinking fund payments in respect of the debt securities
of that series on the stated maturity of those payments in accordance with
the terms of the indenture and those debt securities; and
. delivering to the trustee an opinion of counsel to the effect that the
holders of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a result of
the deposit and related covenant defeasance and will be subject to United
States federal income tax in the same amount and in the same manner and at
the same times as would have been the case if the deposit and related
covenant defeasance had not occurred. (Section 8.4)
Covenant Defeasance and Events of Default. In the event we exercise our
option not to comply with certain covenants of the indenture with respect to
any series of debt securities and the debt securities of that series are
declared due and payable because of the occurrence of any event of default, the
amount of money and/or U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to pay amounts due
on the debt securities of that series at the time of their stated maturity but
may not be sufficient to pay amounts due on the debt securities of that series
at the time of the acceleration resulting from the event of default. However,
we will remain liable for those payments.
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"Foreign government obligations" means, with respect to debt securities of
any series that are denominated in a currency other than U.S. dollars:
. direct obligations of the government that issued or caused to be issued
such currency for the payment of which obligations its full faith and
credit is pledged, which are not callable or redeemable at the option of
the issuer thereof; or
. obligations of a person controlled or supervised by or acting as an agency
or instrumentality of that government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by that
government, which are not callable or redeemable at the option of the
issuer thereof.
Conversion and Exchange Rights
The debt securities may be exchanged for or converted into shares of common
stock, shares of preferred stock or other securities. The terms, if any, on
which the debt securities may be exchanged for or converted will be set forth
in the applicable prospectus supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder or at our option, in
which case the number of shares of common stock, preferred stock or other
securities to be received by the holders of the debt securities would be
calculated as of a time and in the manner stated in the prospectus supplement.
Governing Law
The indenture and the debt securities will be governed by, and construed in
accordance with, the internal laws of the State of New York. (Section 10.10)
13
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the preferred stock sets forth
certain general terms and provisions of the preferred stock to which any
prospectus supplement may relate and will apply to the preferred stock offered
by this prospectus unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a particular series of
preferred stock may specify different or additional terms. The description of
certain provisions of the preferred stock set forth below and in any prospectus
supplement does not purport to be complete and is subject to and qualified in
its entirety by reference to our certificate of incorporation and the
certificate of designations relating to each series of the preferred stock,
which will be filed with the Securities and Exchange Commission and
incorporated by reference in the registration statement of which this
prospectus is a part at or prior to the time of the issuance of such series of
the preferred stock.
General
We have authority to issue 10,000,000 shares of preferred stock, 5,000,000
shares of which are designated Series A Convertible Preferred Stock and
1,500,000 shares of which are designated Series B Junior Participating
Preferred Stock and reserved for issuance pursuant to our Rights Agreement
dated as of January 16, 2001 between Wells Fargo Shareowner Services, as Rights
Agent, and us. As of the date of this prospectus, 2,711,861 shares of our
Series A Convertible Preferred Stock and none of our Series B Junior
Participating Preferred Stock were issued and outstanding.
Under our certificate of incorporation, our board of directors is authorized
without further stockholder action to provide for the issuance of up to the
remaining authorized but unissued shares of our preferred stock, in one or more
series, with such voting powers, full or limited, and with such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issue of a series of such stock
adopted, at any time or from time to time, by our board of directors. As used
herein, the term "board of directors" includes any duly authorized committee
thereof. The issuance of the preferred stock could adversely affect the voting
power of holders of our common stock and the likelihood that such holders will
receive dividend payments and payments upon liquidation and could have the
effect of delaying, deferring or preventing a change in control.
The preferred stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless we provide otherwise in a prospectus
supplement relating to a particular series of the preferred stock. Reference is
made to the prospectus supplement relating to the particular series of the
preferred stock offered thereby for specific terms, including:
. the designation and stated value per share of such preferred stock and the
number of shares offered;
. the amount of liquidation preference per share;
. the initial public offering price at which such preferred stock will be
issued;
. the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to
cumulate, if any;
. any redemption or sinking fund provisions;
. any conversion or exchange rights; and
. any additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions.
The preferred stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. The rights of the holders of each series of the
preferred stock will be subordinate to those of our general creditors.
14
Dividend Rights
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by our board of directors, out of our funds legally
available therefor, cash dividends on such dates and at such rates as set forth
in, or as are determined by the method described in, the prospectus supplement
relating to such series of the preferred stock. Such rate may be fixed or
variable or both. Each such dividend will be payable to the holders of record
as they appear on our stock books on such record dates, fixed by our board of
directors, as specified in the prospectus supplement relating to such series of
preferred stock.
Such dividends may be cumulative or noncumulative, as provided in the
prospectus supplement relating to such series of preferred stock. If our board
of directors fails to declare a dividend payable on a dividend payment date on
any series of preferred stock for which dividends are noncumulative, then the
right to receive a dividend in respect of the dividend period ending on such
dividend payment date will be lost, and we will have no obligation to pay any
dividend for such period, whether or not dividends on such series are declared
payable on any future dividend payment dates. Dividends on the shares of each
series of preferred stock for which dividends are cumulative will accrue from
the date on which we initially issue shares of such series.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our capital stock.
Unless otherwise specified in the applicable prospectus supplement, so long
as the shares of any series of the preferred stock are outstanding, unless:
. full dividends (including if such preferred stock is cumulative, dividends
for prior dividend periods) have been declared and paid in full or
declared and consideration sufficient for payment set apart for payment on
all outstanding shares of the preferred stock of such series and all other
classes and series of our preferred stock, other than junior stock, as
defined below, and
. we are not in default or in arrears with respect to the mandatory or
optional redemption or mandatory repurchase or other mandatory retirement
of, or with respect to any sinking or other analogous funds for, any
shares of preferred stock of such series or any shares of any of our other
preferred stock of any class or series, other than junior stock, as
defined below,
we may not declare any dividends on any shares of our common stock or any of
our other stock ranking as to dividends or distributions of assets junior to
such series of preferred stock (we refer to this common stock and any such
other stock as junior stock), or make any payment on account of, or set apart
money for, the purchase, redemption or other retirement of, or for a sinking or
other analogous fund for, any shares of junior stock or make any distribution
in respect of any shares of junior stock, whether in cash or property or in
obligations of our stock, other than in junior stock which is neither
convertible into, nor exchangeable or exercisable for, any of our securities
other than junior stock.
Liquidation Preferences
Unless otherwise specified in the applicable prospectus supplement, in the
event of our liquidation, dissolution or winding up, whether voluntary or
involuntary, the holders of each series of the preferred stock will be entitled
to receive out of our assets available for distribution to stockholders, before
any distribution of assets is made to the holders of common stock or any other
shares of our stock ranking junior as to such distribution to such series of
the preferred stock, but after any required distributions to holders of any
shares of our stock ranking senior as to such distribution to such series of
preferred stock, the amount set forth in the prospectus supplement relating to
such series of the preferred stock. If, upon our voluntary or involuntary
liquidation, dissolution or winding up and after required distribution of our
assets to holders of any shares of our stock ranking senior as to such
distribution to the preferred stock of a particular series, the amounts payable
with respect to the preferred stock of such series and any other shares of our
preferred stock, including any other series of the preferred stock, ranking as
to any such distribution on a parity with such series of the preferred stock are
15
not paid in full, the holders of the preferred stock of such series and of such
other shares of our preferred stock will share ratably in any such distribution
of our assets in proportion to the full respective preferential amounts to
which they are entitled. After payment to the holders of the preferred stock of
each series of the full preferential amounts of the liquidating distribution to
which they are entitled, unless we provide otherwise in the applicable
prospectus supplement, the holders of each such series of the preferred stock
will be entitled to no further participation in any distribution of our assets.
Redemption
A series of the preferred stock may be redeemable, in whole or from time to
time in part, at our option, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case upon terms, at the times
and at the redemption prices set forth in the prospectus supplement relating to
such series. Shares of the preferred stock redeemed by us will be restored to
the status of authorized but unissued shares of our preferred stock.
In the event that fewer than all of the outstanding shares of a series of
the preferred stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or
pro rata, subject to rounding to avoid fractional shares, as may be determined
by us or by any other method as may be determined by us in our sole discretion
to be equitable. From and after the redemption date, unless default is made by
us in providing for the payment of the redemption price plus accumulated and
unpaid dividends, if any, dividends will cease to accumulate on the shares of
the preferred stock called for redemption and all rights of the holders
thereof, except the right to receive the redemption price plus accumulated and
unpaid dividends, if any, will cease.
Unless otherwise specified in the applicable prospectus supplement, so long
as any dividends on shares of any series of the preferred stock or any other
series of our preferred stock ranking on a parity as to dividends and
distribution of assets with such series of the preferred stock are in arrears,
no shares of any such series of the preferred stock or such other series of our
preferred stock will be redeemed, whether by mandatory or optional redemption,
unless all such shares are simultaneously redeemed, and we will not purchase or
otherwise acquire any such shares; provided, however, that the foregoing will
not prevent the purchase or acquisition of such shares pursuant to a purchase
or exchange offer made on the same terms to holders of all such shares
outstanding.
Conversion and Exchange Rights
The terms, if any, on which shares of the preferred stock of any series may
be exchanged for or converted into shares of common stock, another series of
the preferred stock or any other security will be set forth in the applicable
prospectus supplement. Such terms may include provisions for conversion, either
mandatory, at the option of the holder or at our option, in which case the
number of shares of common stock, the shares of another series of the preferred
stock or the amount of any other securities to be received by the holders of
the preferred stock would be calculated as of a time and in the manner stated
in the prospectus supplement.
Voting Rights
Except as indicated in a prospectus supplement relating to a particular
series of the preferred stock, or except as required by applicable law, the
holders of the preferred stock will not be entitled to vote for any purpose.
16
DESCRIPTION OF COMMON STOCK
We have authority to issue 150,000,000 shares of common stock. As of January
31, 2002, 47,411,355 shares of our common stock were outstanding.
The holders of common stock are entitled to one vote per share on all
matters to be voted on by stockholders, including the election of directors.
Stockholders are not entitled to cumulative voting rights, and, accordingly,
the holders of a majority of the shares voting for the election of directors
can elect our entire board of directors if they choose to do so and, in that
event, the holders of the remaining shares will not be able to elect any person
to our board of directors.
The holders of common stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by our board of directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock which may be outstanding.
Bank credit agreements that we may enter into from time to time and debt
securities that we may issue from time to time may restrict our ability to
declare or pay dividends on our common stock. Upon our liquidation, dissolution
or winding up, subject to prior liquidation rights of the holders of preferred
stock, the holders of common stock are entitled to receive on a pro rata basis
our remaining assets available for distribution. Holders of common stock have
no preemptive or other subscription rights, and there are no conversion rights
or redemption or sinking fund provisions with respect to such shares. All
outstanding shares of common stock are, and all shares being offered by this
prospectus will be, fully paid and not liable to further calls or assessment by
us.
DESCRIPTION OF WARRANTS
We may issue debt warrants to purchase debt securities, as well as equity
warrants to purchase preferred stock or common stock. The warrants may be
issued independently or together with any securities and may be attached to or
separate from the securities. If the warrants are issued pursuant to warrant
agreements, we will so specify in the prospectus supplement relating to the
warrants being offered pursuant to the prospectus supplement. The following
description of warrants will apply to the warrants offered by this prospectus
unless we provide otherwise in the applicable prospectus supplement. The
applicable prospectus supplement for a particular series of warrants may
specify different or additional terms.
Debt Warrants
The applicable prospectus supplement will describe the terms of debt
warrants offered, the warrant agreement relating to the debt warrants and the
debt warrant certificates representing the debt warrants, including the
following:
. the title of the debt warrants;
. the aggregate number of the debt warrants;
. the price or prices at which the debt warrants will be issued;
. the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants, and the
procedures and conditions relating to the exercise of the debt warrants;
. the designation and terms of any related debt securities with which the
debt warrants are issued, and the number of the debt warrants issued with
each debt security;
. the principal amount of debt securities purchasable upon exercise of each
debt warrant;
. the date on which the right to exercise the debt warrants will commence,
and the date on which this right will expire;
17
. the maximum or minimum number of debt warrants which may be exercised at
any time;
. a discussion of any material federal income tax considerations; and
. any other terms of the debt warrants and terms, procedures and limitations
relating to the exercise of debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations, and debt warrants may be exercised at
the corporate trust office of the warrant agent or any other office indicated
in the prospectus supplement. Prior to the exercise of their debt warrants,
holders of debt warrants will not have any of the rights of holders of the debt
securities purchasable upon exercise and will not be entitled to payment of
principal of or any premium, if any, or interest on the debt securities
purchasable upon exercise.
Equity Warrants
The applicable prospectus supplement will describe the following terms of
equity warrants offered:
. the title of the equity warrants;
. the securities (i.e., preferred stock or common stock) for which the
equity warrants are exercisable;
. the price or prices at which the equity warrants will be issued;
. if applicable, the designation and terms of the preferred stock or common
stock with which the equity warrants are issued, and the number of equity
warrants issued with each share of preferred stock or common stock; and
. any other terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of equity warrants.
Holders of equity warrants will not be entitled, by virtue of being such
holders, to vote, consent, receive dividends, receive notice as stockholders
with respect to any meeting of stockholders for the election of our directors
or any other matter, or to exercise any rights whatsoever as our stockholders.
The exercise price payable and the number of shares of common stock or
preferred stock purchasable upon the exercise of each equity warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of common stock or preferred stock or a stock split,
reverse stock split, combination, subdivision or reclassification of common
stock or preferred stock. In lieu of adjusting the number of shares of common
stock or preferred stock purchasable upon exercise of each equity warrant, we
may elect to adjust the number of equity warrants. No adjustments in the number
of shares purchasable upon exercise of the equity warrants will be required
until cumulative adjustments require an adjustment of at least 1% thereof. We
may, at our option, reduce the exercise price at any time. No fractional shares
will be issued upon exercise of equity warrants, but we will pay the cash value
of any fractional shares otherwise issuable. Notwithstanding the foregoing, in
case of any consolidation, merger, or sale or conveyance of our property as an
entirety or substantially as an entirety, the holder of each outstanding equity
warrant shall have the right to the kind and amount of shares of stock and
other securities and property, including cash, receivable by a holder of the
number of shares of common stock or preferred stock into which the equity
warrant was exercisable immediately prior to the transaction.
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash such principal
amount of securities or shares of stock at such exercise price as shall in each
case be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the warrants offered thereby. Warrants may be exercised
at any time up to the close of business on the expiration date set forth in the
prospectus supplement relating to the warrants offered thereby. After the close
of business on the expiration date, unexercised warrants will become void.
18
The warrants may be exercised as set forth in the prospectus supplement
relating to the warrants offered. Upon receipt of payment and the taking of
other action specified in the applicable prospectus supplement, we will, as
soon as practicable, forward the securities purchasable upon exercise. If less
than all of the warrants represented by such warrant certificate are exercised,
a new warrant certificate will be issued for the remaining warrants.
PLAN OF DISTRIBUTION
General
We may sell the securities from time to time pursuant to underwritten public
offerings, negotiated transactions, block trades or a combination of these
methods. The securities also may be sold pursuant to the purchase agreement
described below under the heading "--December 2001 and February 2002 Common
Stock Purchase Agreements." We may sell the securities (1) through underwriters
or dealers, (2) through agents, and/or (3) directly to one or more purchasers.
We may distribute the securities from time to time in one or more transactions
at:
. a fixed price or prices, which may be changed;
. market prices prevailing at the time of sale;
. prices related to the prevailing market prices; or
. negotiated prices.
We may solicit directly offers to purchase the securities being offered by
this prospectus. We may also designate agents to solicit offers to purchase the
securities from time to time. We will name in a prospectus supplement any agent
involved in the offer or sale of our securities.
If we utilize a dealer in the sale of the securities being offered by this
prospectus, we will sell the securities to the dealer, as principal. The dealer
may then resell the securities to the public at varying prices to be determined
by the dealer at the time of resale.
If we utilize an underwriter in the sale of the securities being offered by
this prospectus, we will execute an underwriting agreement with the underwriter
at the time of sale and we will provide the name of any underwriter in the
prospectus supplement which the underwriter will use to make resales of the
securities to the public. In connection with the sale of the securities, we, or
the purchasers of securities for whom the underwriter may act as agent, may
compensate the underwriter in the form of underwriting discounts or
commissions. The underwriter may sell the securities to or through dealers, and
the underwriter may compensate those dealers in the form of discounts,
concessions or commissions.
With respect to underwritten public offerings, negotiated transactions and
block trades, we will provide in the applicable prospectus supplement any
compensation we pay to underwriters, dealers or agents in connection with the
offering of the securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers. Underwriters, dealers and
agents participating in the distribution of the securities may be deemed to be
underwriters within the meaning of the Securities Act of 1933, as amended, and
any discounts and commissions received by them and any profit realized by them
on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers
and agents against civil liabilities, including liabilities under the
Securities Act, or to contribute to payments they may be required to make in
respect thereof.
Shares of common stock sold pursuant to the registration statement of which
this prospectus is a part will be authorized for quotation and trading on the
Nasdaq National Market. Other securities may or may not be listed on the Nasdaq
National Market or a national securities exchange. To facilitate the offering
of securities, other than
19
securities offered through an equity line of credit, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involve the sale by
persons participating in the offering of more securities than we sold to them.
In these circumstances, these persons would cover such over-allotments or short
positions by making purchases in the open market or by exercising their
over-allotment option. In addition, these persons may stabilize or maintain the
price of the securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if securities sold by
them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the
securities at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
The underwriters, dealers and agents may engage in other transactions with
us, or perform other services for us, in the ordinary course of their business.
December 2001 and February 2002 Common Stock Purchase Agreements
On December 21, 2001, we entered into an arrangement with Acqua Wellington
North American Equities Fund, Ltd. which is a type of financing vehicle within
a category of structures which are sometimes termed equity lines of credit.
Specifically, we entered into a common stock purchase agreement with Acqua
Wellington, which provided that Acqua Wellington was committed to purchase up
to $14,000,000 of our common stock over the 14-month term of the purchase
agreement. On January 10, 2002, we sold the $14,000,000 of our common stock,
constituting 2,147,239 shares, to Acqua Wellington pursuant to the December
2001 common stock purchase agreement and the registration statement of which
this prospectus is a part. This sale exhausted the amount agreed to under the
purchase agreement and terminated the purchase agreement pursuant to its terms.
On February 13, 2002, we entered into a new equity line of credit
arrangement with Acqua Wellington. Specifically, we entered into a common stock
purchase agreement with Acqua Wellington which provides that Acqua Wellington
is committed to purchase up to $19,000,000 of our common stock over the
14-month term of the purchase agreement. We have filed the February 2002
purchase agreement as an exhibit to this registration statement, and you should
read the actual terms of the purchase agreement for the definitive terms and
conditions. The total amount of securities available under the purchase
agreement does not exceed 10% of the aggregate market value of our outstanding
common stock that was held by our non-affiliates on a day within sixty days
prior to February 13, 2002. From time to time beginning on the date of this
prospectus and ending on or before April 12, 2003 and at our sole discretion,
we may present Acqua Wellington with draw down notices constituting offers to
purchase our common stock over a draw down period consisting of two periods, or
such other number of periods as agreed upon between us and Acqua Wellington, of
ten consecutive trading days each, or such other number of trading days as
agreed upon by us and Acqua Wellington. Under the purchase agreement, we are
able to present Acqua Wellington with up to 12 draw down notices during the
term of the agreement, unless we agree with Acqua Wellington to a different
number of notices, with a minimum of five trading days required between each
draw down period, unless we agree with Acqua Wellington to a different number
of minimum days.
20
Each draw down notice sets forth a threshold price and the dollar value of
the shares Acqua Wellington is obligated to purchase during the draw down
period. The threshold price we choose, which cannot be less than $3.00 without
the consent of Acqua Wellington, generally establishes the maximum value of the
stock we can obligate Acqua Wellington to buy during the period and the
discount that Acqua Wellington will receive as set forth in the following
table. However, we may agree with Acqua Wellington to modify the maximum
purchase value and discount applicable to a particular draw down. In no event
will the dollar value of securities we sell to Acqua Wellington pursuant to the
February 2002 purchase agreement exceed $19,000,000 in the aggregate.
Threshold Price Maximum Purchase Value
--------------- ----------------------
$6.00-6.99 $3,500,000
Each $1.00 decrease below $6.00, down to a A decrease of $500,000 down to a minimum of
minimum of $3.00 $2,000,000
Each $1.00 increase above $4.00, An increase of $500,000 up to a maximum of
up to a maximum of $10.00 $5,500,000
Threshold Price Discount
--------------- --------
$6.00-6.99 4.95%
Each $1.00 decrease below $6.00, An increase of 0.15% up to a maximum
down to a minimum of $3.00 discount of 5.40%
Each $1.00 increase above $4.00 A decrease of 0.15% down to a
minimum discount of 3.00%
Once presented with a draw down notice, Acqua Wellington is required to
purchase a pro rata portion of the shares on each trading day during the draw
down period on which the daily volume weighted average price for our common
stock exceeds a threshold price for such draw down determined by us and set
forth in the draw down notice. The per share purchase price for these shares
equals the daily volume weighted average price of our common stock on each date
during the draw down period on which shares are purchased, less a discount
ranging from 3.00% to 5.40%, based on the threshold price set forth in the draw
down notice as set forth in the tables above, unless we agree otherwise with
Acqua Wellington. If the daily volume weighted average price of our common
stock falls below the threshold price on any trading day during a draw down
period, the purchase agreement provides that Acqua Wellington will not be
obligated but still may purchase the pro-rata portion of shares of common stock
allocated to that day at the threshold price for the draw down period, less
Acqua Wellington's discount. The number of shares Acqua Wellington would be
obligated to buy on any trading day during a draw down period is arrived at by
dividing that day's pro rata part of the total purchase amount by that day's
volume weighted average price, less Acqua Wellington's discount. The total
number of shares Acqua Wellington would be required to purchase during a draw
down period is the aggregate of the daily amounts.
As an example of how the draw down mechanism set forth in the table above
works, assume that we had sent Acqua Wellington a draw down notice choosing a
threshold price of $6.00 and a corresponding draw amount of $3,500,000. On each
of the following twenty trading days in the two periods of ten consecutive
trading days which comprise the draw down period, Acqua Wellington would be
obligated to purchase approximately $175,000 worth of our stock at that day's
volume weighted average price less a 4.95% discount. On a trading day during
the draw down period when the volume weighted average price was $6.50, Acqua
Wellington would be obligated to buy approximately 28,325 shares at a price of
$6.18 per share. If the volume weighted average price remained at $6.50 for
each trading day during the draw down period, Acqua Wellington would be
obligated to purchase a total of approximately 566,503 shares for $3,500,000.
The number of shares purchased will increase or decrease inversely to increases
or decreases in the volume weighted average price.
21
The purchase agreement also provides that from time to time and at our sole
discretion we may grant Acqua Wellington the right to exercise one or more call
options to purchase additional shares of our common stock during each draw down
period for the amount that we specify; provided, however, that the aggregate of
all such call option amounts and draw down amounts may not exceed $19,000,000
for the term of the purchase agreement. Upon Acqua Wellington's exercise of the
call option, we will issue and sell the shares of our common stock subject to
the call option at a price equal to the greater of the daily volume weighted
average price of our common stock on the day Acqua Wellington notifies us of
its election to exercise its call option or the threshold price for the call
option determined by us and set forth in the draw down notice, less a discount
ranging from 3.00% to 5.40%, based on the threshold price set forth in the draw
down notice, unless we agree otherwise with Acqua Wellington.
In addition to our issuance of shares of common stock to Acqua Wellington
pursuant to the purchase agreement, this prospectus also covers the sale of
those shares from time to time by Acqua Wellington to the public. Acqua
Wellington is an "underwriter" within the meaning of Section 2(a)(11) of the
Securities Act.
Acqua Wellington has informed us that it intends to use Joseph Grace
Holdings, Inc. as the broker-dealer to sell on the Nasdaq National Market
shares of our common stock purchased under the December 2001 purchase agreement
and the February 2002 purchase agreement. Such sales will be made on the Nasdaq
National Market at prices and at terms then prevailing or at prices related to
the then current market price. Joseph Grace Holdings, Inc. is an underwriter
within the meaning of Section 2(a)(11) of the Securities Act. Acqua Wellington
has informed us that Joseph Grace Holdings, Inc., which is not an affiliate of
Acqua Wellington, will receive commissions from Acqua Wellington which will not
exceed customary brokerage commissions. Acqua Wellington also will pay other
expenses associated with the sale of the common stock it acquires pursuant to
the purchase agreement.
The shares of common stock may be sold in one or more of the following
manners:
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers; or
. a block trade in which the broker or dealer so engaged will attempt to
sell the shares as agent, but may position and resell a portion of the
block as principal to facilitate the transaction.
Acqua Wellington has agreed that prior to and during the term of the
purchase agreement, neither Acqua Wellington nor any of its affiliates or
entities managed by Acqua Wellington will sell any of our securities except the
shares that Acqua Wellington (or its respective affiliate or managed entity)
owns at the time of the sale, or any shares that Acqua Wellington is obligated
to purchase under a pending draw down notice.
In addition, Acqua Wellington and Joseph Grace Holdings, Inc. will be
subject to liability under the federal securities laws and must comply with the
requirements of the Securities Act and the Securities Exchange Act of 1934, as
amended, including without limitation, Rule 415(a)(4) under the Securities Act
and Rule 10b-5 and Regulation M under the Exchange Act. These rules and
regulations may limit the timing of purchases and sales of shares of common
stock by Acqua Wellington or Joseph Grace Holdings, Inc. Under these rules and
regulations, Acqua Wellington and Joseph Grace Holdings, Inc.:
. may not engage in any stabilization activity in connection with our
securities;
. must furnish each broker which offers shares of our common stock covered
by this prospectus with the number of copies of this prospectus and any
prospectus supplement which are required by each broker; and
. may not bid for or purchase any of our securities or attempt to induce any
person to purchase any of our securities other than as permitted under the
Exchange Act.
These restrictions may affect the marketability of the shares of common
stock by Acqua Wellington and Joseph Grace Holdings, Inc.
22
We have agreed to indemnify and hold harmless Acqua Wellington and Joseph
Grace Holdings, Inc. against certain liabilities, including liabilities under
the Securities Act, which may be based upon, among other things, any untrue
statement or alleged untrue statement of a material fact contained in or
incorporated by reference in the registration statement of which this
prospectus is a part, or any omission or alleged omission to state in the
registration statement or any document incorporated by reference in the
registration statement, a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless made or omitted
in reliance upon written information provided to us by Acqua Wellington or
Joseph Grace Holdings, Inc. We have agreed to pay twenty-five thousand dollars
($25,000) of Acqua Wellington's fees and expenses, including attorney's fees,
incurred by Acqua Wellington in connection with the preparation, negotiation,
execution and delivery of the purchase agreement. We have also agreed to pay
all reasonable fees and expenses, including attorney's fees, incurred by Acqua
Wellington in connection with any amendments, modifications or waivers of the
purchase agreement.
In addition, we have agreed to pay Reedland Capital Partners, an
Institutional Division of Financial West Group, Member, NASD/SIPC/MSRB, a
placement fee in the amount of one-fifth of one percent (0.20%) of the
corresponding draw down amount or call option amount purchased by Acqua
Wellington. We have agreed to indemnify and hold harmless Reedland Capital
Partners against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the securities offered hereby will be
passed upon for us by Latham & Watkins, San Francisco, California. Certain
legal matters will be passed upon for any agents or underwriters by counsel for
such agents or underwriters identified in the applicable prospectus supplement.
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses to be paid by us in connection with the distribution of the
securities being registered are as set forth in the following table:
Securities and Exchange Commission Fee........... $ 18,750
*Rating Agency Fees.............................. $150,000
*Legal Fees and Expenses......................... $225,000
*Accounting Fees and Expenses.................... $ 7,500
*Printing Expenses............................... $ 30,000
*Blue Sky Fees................................... $ 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses $ 40,000
*Transfer Agent Fees & Expenses.................. $ 5,000
*Miscellaneous................................... $ 13,750
--------
*Total........................................... $500,000
========
* Estimated.
Item 15. Indemnification of Directors and Officers.
We are a Delaware corporation. Subsection (b)(7) of Section 102 of the
Delaware General Corporation Law enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which the director derived an
improper personal benefit.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any present or former director, officer,
employee or agent of the corporation, or any individual serving at the
corporation's request as a director, officer, employee or agent of another
organization, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding
provided that such director, officer, employee or agent acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided further that such director, officer, employee or agent had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
present or former director, officer, employee or agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person acted in any of the capacities set
forth above, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit provided that such director, officer, employee or agent
acted in good faith and in a manner reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect to any claim, issue or matter as to
which such director, officer, employee or agent shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability
II-1
but in view of all of the circumstances of the case, such director or officer
is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification and advancement of expenses provided
for, by, or granted pursuant to, Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and empowers
the corporation to purchase and maintain insurance on behalf of a present or
former director, officer, employee or agent of the corporation, or any
individual serving at the corporation's request as a director, officer or
employee of another organization, against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Our Amended and Restated Certificate of Incorporation provides that our
directors shall not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i)
for any breach of duty of loyalty to Registrant or to its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Our Amended and Restated Certificate of
incorporation further states that if the Delaware General Corporation Law is
later amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Our Amended and Restated Bylaws provide that we shall indemnify our officers
and directors to the fullest extent not prohibited by Delaware law and
authorizes us to modify the extent of such indemnification by individual
contracts with our officers and directors. Our Amended and Restated Bylaws
further provide, however, that we shall not be required to indemnify any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in our sole discretion, pursuant to the powers vested in the corporation under
the Delaware General Corporation Law or (iv) such indemnification is required
to be made pursuant to our contractual obligations to our directors and
officers. Our Amended and Restated Bylaws further provide that we have the
power to indemnify our officers, employees and other agents as set forth in the
Delaware General Corporation Law.
We have entered into indemnification agreements with substantially all of
our executive officers and directors, which provide indemnification under
certain circumstances for acts and omissions which may not be covered by any
directors' and officers' liability insurance.
II-2
Item 16. Exhibits.
1.1* Form of Underwriting Agreement.
4.1 Amended and Restated Certificate of Incorporation of TiVo Inc. filed as Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 2000 and incorporated herein by reference.
4.2 Amended and Restated Bylaws of TiVo Inc., filed as Exhibit 3.4 to the Company's Registration Statement on Form
S-1, File No. 333-83515 and incorporated herein by reference.
4.3*** Form of Indenture.
4.4* Form of Debt Securities.
4.5* Form of Warrant Agreement, if any, including form of Warrant.
4.6 Form of Common Stock Certificate, filed as Exhibit 4.2 to the Company's Registration Statement on Form S-1, File
No. 333-83515 and incorporated herein by reference.
4.7* Form of Preferred Stock Certificate.
4.8 Certificate of Designations of TiVo Inc., establishing the terms of the Company's Series B Junior Participating
Preferred Stock, filed as Exhibit 4.1 to the Company's Current Report on Form 8-K filed on January 17, 2001, and
incorporated herein by reference
4.9 Certificate of Correction filed to correct a certain error in the Certificate of Designations of TiVo Inc., filed as
Exhibit 4.2 to the Company's Amendment No. 1 to Current Report on Form 8-K/A filed on January 19, 2001, and
incorporated herein by reference.
5.1*** Opinion of Latham & Watkins.
10.1 Common Stock Purchase Agreement, dated as of December 21, 2001, between TiVo Inc. and Acqua Wellington
North American Equities Fund, Ltd., filed as Exhibit 10.1 to the Company's Current Report on Form 8-K filed on
December 21, 2001, and incorporated herein by reference.
10.2 Common Stock Purchase Agreement, dated as of February 13, 2002, between TiVo Inc. and Acqua Wellington
North American Equities Fund, Ltd., filed as Exhibit 10.1 to the Company's Current Report on Form 8-K filed on
February 13, 2002, and incorporated herein by reference.
12.1 Statement regarding Computation of Ratios.
23.1*** Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2*** Consent of Latham & Watkins.
24.1*** Powers of Attorney.
25.1** Statement of Eligibility of trustee on Form T-1.
- --------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
*** Previously filed.
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Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act and (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(j) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 3 to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Alviso, State of
California, on February 25, 2002.
TIVO INC.
By:
/s/ David H. Courtney
__________________________________
David H. Courtney
Chief Financial Officer and Executive
Vice
President, Worldwide Operations and
Administration
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 3 to the registration statement has been signed by
each of the following persons in the capacities and on the dates indicated.
Name Title Date
---- ----- ----
* Chief Executive Officer and February 25, 2002
---------------------- Chairman of the Board of
Michael Ramsay Directors (Principal Executive
Officer)
/s/ DAVID H. COURTNEY Chief Financial Officer and February 25, 2002
---------------------- Executive Vice President,
David H. Courtney Worldwide Operations and
Administration (Principal
Financial and Accounting
Officer)
* Director February 25, 2002
----------------------
Stewart Alsop
* Director February 25, 2002
----------------------
James Barton
---------------------- Director
Larry N. Chapman
---------------------- Director
John S. Hendricks
* Director February 25, 2002
----------------------
Michael J. Homer
* Director February 25, 2002
----------------------
Randy Komisar
II-6
Name Title Date
---- ----- ----
* Director February 25, 2002
----------------------
Geoffrey Y. Yang
---------------------- Director
David M. Zaslav
/s/ DAVID H. COURTNEY
----------------------
David H. Courtney
as attorney-in-fact
II-7
EXHIBIT INDEX
1.1* Form of Underwriting Agreement.
4.1 Amended and Restated Certificate of Incorporation of TiVo Inc., filed as Exhibit 3.2 to the
Company's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2000
and incorporated herein by reference.
4.2 Amended and Restated Bylaws of TiVo Inc., filed as Exhibit 3.4 to the Company's Registration
Statement on Form S-1, File No. 333-83515 and incorporated herein by reference.
4.3*** Form of Indenture.
4.4* Form of Debt Securities.
4.5* Form of Warrant Agreement, if any, including form of Warrant.
4.6 Form of Common Stock Certificate, filed as Exhibit 4.2 to the Company's Registration Statement
on Form S-1, File No. 333-83515 and incorporated herein by reference.
4.7* Form of Preferred Stock Certificate.
4.8 Certificate of Designations of TiVo Inc., establishing the terms of the Company's Series B Junior
Participating Preferred Stock, filed as Exhibit 4.1 to the Company's Current Report on Form 8-K
filed on January 17, 2001, and incorporated herein by reference.
4.9 Certificate of Correction filed to correct a certain error in the Certificate of Designations of TiVo
Inc., filed as Exhibit 4.2 to the Company's Amendment No. 1 to Current Report on Form 8-K/A
filed on January 19, 2001, and incorporated herein by reference.
5.1*** Opinion of Latham & Watkins.
10.1 Common Stock Purchase Agreement, dated as of December 21, 2001, between TiVo Inc. and
Acqua Wellington North American Equities Fund, Ltd., filed as Exhibit 10.1 to the Company's
Current Report on Form 8-K filed on December 21, 2001, and incorporated herein by reference.
10.2 Common Stock Purchase Agreement, dated as of February 13, 2002, between TiVo Inc. and Acqua
Wellington North American Equities Fund, Ltd., filed as Exhibit 10.1 to the Company's Current
Report on Form 8-K filed on February 13, 2002, and incorporated herein by reference.
12.1 Statement regarding Computation of Ratios.
23.1*** Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2*** Consent of Latham & Watkins.
24.1*** Powers of Attorney.
25.1** Statement of Eligibility of trustee on Form T-1.
- --------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
** To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
*** Previously filed.