SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
INFORMATION TO BE INCLUDED IN
STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 4)
TIVO INC.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
888706108
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(CUSIP Number)
Paul T. Cappuccio, Esq.
Executive Vice President and General Counsel
AOL Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
(212) 484-8000
Copy to:
David J. Sorkin, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 29, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box |_|.
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1. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
AOL Time Warner Inc.
13-4099534
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) |_|
(b) |_|
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3. SEC USE ONLY:
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4. SOURCE OF FUNDS:
Not applicable (See Item 3)
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_|
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6. CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
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----------------------- ----- --------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY
EACH ----- ---------------------------------------------------
REPORTING ----- ---------------------------------------------------
PERSON WITH
8. SHARED VOTING POWER
7,022,318
----- --------------------------------------------------
----- --------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----- --------------------------------------------------
----- --------------------------------------------------
10. SHARED DISPOSITIVE POWER
7,022,318
----------------------- ----- --------------------------------------------------
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
7,022,318
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: |_|
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
14.4% (1)
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14. TYPE OF REPORTING PERSON:
HC
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1. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
America Online, Inc.
54-1322110
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) |_|
(b) |_|
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3. SEC USE ONLY:
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4. SOURCE OF FUNDS:
WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_|
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6. CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
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----------------------- ----- --------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY
EACH ----- --------------------------------------------------
REPORTING ----- --------------------------------------------------
PERSON WITH
8. SHARED VOTING POWER
7,022,318
----- --------------------------------------------------
----- --------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----- --------------------------------------------------
----- --------------------------------------------------
10. SHARED DISPOSITIVE POWER
7,022,318
----------------------- ----- --------------------------------------------------
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
7,022,318
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: |_|
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
14.4% (1)
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14. TYPE OF REPORTING PERSON:
CO
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(1) Based on the number of shares of Common Stock, par value $0.001 per share
("Common Stock"), of TiVo Inc. ("TiVo") outstanding on March 18, 2002, as
disclosed by TiVo in its Annual Report on Form 10-K for the year ended
January 31, 2001, the number of shares of Common Stock issuable upon
conversion of the Series A Convertible Preferred Stock, par value $0.001
per share (the "Preferred Stock"), owned by America Online, Inc. ("America
Online"), and the number of shares of Common Stock issuable upon the
exercise of warrants owned by America Online that are currently
exerciseable or will become exerciseable within 60 days. 5,134,722 shares
of Common Stock were issued to America Online pursuant to the Investment
Agreement between TiVo and America Online, dated as of June 9, 2000, as
amended (the "Investment Agreement"), 1,111,861 shares of Common Stock are
issuable upon conversion of 1,111,861 shares of Preferred Stock acquired by
America Online pursuant to the Investment Agreement, and 295,428 shares of
Common Stock are issuable upon the exercise of a warrant acquired by
America Online pursuant to the Investment Agreement. 480,307 shares of
Common Stock were purchased by America Online in August 1999. America
Online also holds two other warrants to purchase 5,207,806 shares of Common
Stock acquired pursuant to the Investment Agreement that are not currently
exerciseable. The exerciseability of these warrants is conditioned upon the
satisfaction of certain performance targets.
AOL Time Warner Inc., a Delaware corporation ("AOL Time Warner"), and its
wholly owned subsidiary, America Online, Inc., a Delaware corporation ("America
Online", and together with AOL Time Warner, the "Reporting Persons"), hereby
file this Amendment No. 4 ("Amendment No. 4") to amend and supplement the
Statement on Schedule 13D originally filed on June 23, 2000, previously amended
and supplemented by Amendment No. 1 filed on September 22, 2000, Amendment No. 2
filed on January 23, 2001 and Amendment No. 3 filed on February 9, 2001
(collectively, the "Statement"), with respect to the common stock, par value
$0.001 per share ("TiVo Common Stock"), of TiVo Inc., a Delaware corporation
("TiVo"). Capitalized terms used but not defined in this Amendment No. 4 have
the meanings assigned thereto in the Statement. The Statement is hereby amended
and supplemented by this Amendment No. 4.
Item 5. Interest in Securities of TiVo.
The response to Item 5 of the Statement is hereby amended and
supplemented by:
a. Deleting the last sentence of paragraph five.
b. Inserting the following new paragraphs nine, ten and eleven:
"The Amended Warrant to purchase 2,308,475 Warrant Shares
expired on December 31, 2001.
Pursuant to the Funds Release Agreement, dated as of April 29,
2002 (the "Release Agreement"), among TiVo, America Online and BNY Western Trust
Company, as escrow agent, which is being filed as Exhibit 6 to the Statement, on
April 30, 2002, America Online elected to exercise its Put Option under the
Investment Agreement and, as a result of such exercise, America Online returned
1,600,000 shares of TiVo Preferred Stock to TiVo and America Online received
from escrow $48,000,000 in cash.
As a result of the foregoing, AOL Time Warner and America
Online may be deemed to have shared power to vote and dispose of 7,022,318
shares of TiVo Common Stock registered in the name of America Online and owned
beneficially by AOL Time Warner, representing approximately 14.4% of the
outstanding shares of TiVo Common Stock as of May 10, 2002, the date of the
filing of Amendment No. 4 to the Statement, based on the number of outstanding
shares of Common Stock on March 18, 2002 as disclosed by TiVo in its Annual
Report on Form 10-K for the year ended January 31, 2002. This represents a
reduction in beneficial ownership from what was reported in Amendment No. 3
to the Statement on such date."
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of TiVo.
The response to Item 6 of the Statement is hereby amended and
supplemented by inserting immediately after paragraph one thereof the following
new paragraph two:
"Pursuant to the Release Agreement, America Online exercised
its Put Option and, in connection therewith, delivered to TiVo 1,600,000 shares
of Preferred Stock and received $48,000,000 in cash from the funds deposited in
escrow pursuant to the Investment Agreement. All the funds remaining in escrow
following such release, totaling $3,855,377.13, were released to TiVo in
accordance with the terms of the Investment Agreement. Pursuant to the Release
Agreement, America Online waived TiVo's obligation to pay dividends on the
remaining shares of Preferred Stock and agreed that on September 13, 2002 it
will convert all shares of Preferred Stock then held by America Online into
shares of TiVo Common Stock. Upon release of the escrowed funds pursuant to the
Put Option and the Release Agreement, TiVo and America Online terminated the
Escrow Agreement and the Investment Agreement. In addition, pursuant to the
Release Agreement, (i) America Online waived certain of its piggyback
registration rights under the Stockholders Agreement, (ii) TiVo and America
Online terminated certain provisions of the Stockholders Agreement, and (iii)
America Online agreed to certain transfer restrictions relating to the Common
Stock and Preferred Stock."
Item 7. Material to Be Filed as Exhibit.
The response to Item 7 of the Statement is hereby amended and
supplemented to include Exhibit 6 as follows:
Exhibit Number Description
6 Funds Release Agreement, dated as of April 29, 2002, made
by and among TiVo Inc., America Online, Inc. and BNY
Western Trust Company.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
AOL TIME WARNER INC.
By: /s/ Wayne H. Pace
----------------------
Name: Wayne H. Pace
Title: Executive Vice President and
Chief Financial Officer
AMERICA ONLINE, INC.
By: /s/ Joseph A. Ripp
-------------------------
Name: Joseph A. Ripp
Title: Executive Vice President and
Chief Financial Officer
Dated: May 10, 2002
EXHIBIT 6
FUNDS RELEASE AGREEMENT
This FUNDS RELEASE AGREEMENT, dated as of April 29, 2002 (this
"Agreement"), is made by and among TiVo Inc., a Delaware corporation (the
"Company"), America Online, Inc., a Delaware corporation (the "Purchaser"), and
BNY Western Trust Company, as successor in interest to U.S. Trust Company,
National Association (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Company and the Purchaser are parties to the Investment
Agreement, dated as of June 9, 2000, as amended by the First Amendment, dated as
of September 11, 2000, the Second Amendment, dated as of January 30, 2001, the
Third Amendment, dated as of March 28, 2002, and the Fourth Amendment, dated as
of April 9, 2002 (together, the "Investment Agreement"), and the Company, the
Purchaser and the Escrow Agent are parties to the Escrow Agreement, dated as of
September 11, 2000, as amended by the First Amendment, dated as of January 30,
2001 (together, the "Escrow Agreement");
WHEREAS, pursuant to the Investment Agreement and the Escrow Agreement,
certain funds have been deposited with the Escrow Agent which, together with
interest earned thereon, equals $51,855,377.13 as of the date of this Agreement
(together with any additional funds added to such amount, the "Escrowed Funds");
WHEREAS, pursuant to the terms of Section 1.4(b) of the Investment
Agreement, as of December 31, 2001, the Purchaser has the right to exercise the
Put Option (as defined in the Investment Agreement) and is hereby exercising the
Put Option;
WHEREAS, in connection therewith, the Company and the Purchaser desire to
release the Escrowed Funds to the Purchaser upon the terms of the Investment
Agreement and as set forth herein, and further desire to terminate the Escrow
Agreement and the Investment Agreement as set forth herein;
WHEREAS, in connection with the exercise of the Put Option, the Purchaser
and the Company desire that the Purchaser waive the Purchaser's rights to
receive certain dividends payable on the preferred stock, par value $.001 per
share (the "Preferred Stock"), as set forth in the Company's Amended and
Restated Certificate of Incorporation (the "Restated Certificate");
WHEREAS, in connection with the exercise of the Put Option, the Purchaser
and the Company desire any Preferred Shares (as defined in the Investment
Agreement) held by the Purchaser to be converted on September 13, 2002 into
shares of the Company's common stock, par value $.001 per share (the "Common
Stock"), pursuant to the terms of such Preferred Shares as set forth in the
Restated Certificate;
WHEREAS, the Company and the Purchaser are parties to the Stockholders and
Registration Rights Agreement, dated as of June 9, 2000 (the "Stockholders
Agreement"), and pursuant to Section 5.2 of the Stockholders Agreement, the
Purchaser has certain piggy-back registration rights as set forth therein;
WHEREAS, the Company and the Purchaser desire to waive such piggy-back
registration rights with respect to certain registration statements as set forth
herein;
WHEREAS, the Company and the Purchaser desire to terminate certain
provisions of Article II of the Stockholders
Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Investment Agreement.
2. Repurchase; Release of Escrowed Funds.
(a) Pursuant to Section 1.4(b) of the Investment Agreement, the Purchaser
has elected to exercise the Put Option, and as a result of such exercise, on
April 30, 2002, the Company shall repurchase 1,600,000 Preferred Shares from the
Purchaser (such exercise and repurchase referred to herein as the "Repurchase")
for an aggregate repurchase price of forty-eight million dollars ($48,000,000)
(the "Aggregate Repurchase Price"), which represents (i) the total amount of
Escrowed Funds held in the Escrow Account through the date hereof, less (ii)
three million eight hundred fifty-five thousand three hundred seventy-seven
dollars and thirteen cents ($3,855,377.13) which represents the interest earned
on the Escrowed Funds (together with any additional interest earned on the
Escrowed Funds subsequent to the date of this Agreement, the "Accrued Interest
Amount").
(b) In connection with the Repurchase and pursuant to Section 1.4(b) of the
Investment Agreement, on April 30, 2002, the Purchaser shall deliver to Latham &
Watkins, counsel to the Company, a facsimile copy of the certificate
representing the Preferred Shares to be repurchased, with the original of such
certificate being mailed by overnight courier for delivery to Latham & Watkins
on May 1, 2002, and the Company and the Purchaser hereby irrevocably direct the
Escrow Agent to, and the Escrow Agent shall, deliver on April 30, 2002, cash in
the amount of forty-four million dollars ($44,000,000), which represents the
Aggregate Repurchase Price less four million dollars ($4,000,000) to be paid by
the Purchaser to the Company as payment for certain development work under the
Development and Distribution Agreement, dated as of the date hereof, between the
Company and the Purchaser (the "Development Amount"), by wire transfer of
immediately available funds to the following account of the Purchaser:
J.P. Morgan Chase
ABA #021 000 021
Account #323-070752
New York, N.Y.
The original and facsimile copies of the certificate representing the Preferred
Shares shall be held in escrow by Latham & Watkins until the distribution of the
Escrowed Funds as provided herein, and thereafter Latham & Watkins shall release
such certificates to the Company for cancellation. In the event that the
original certificate for the Preferred Shares has not been received by Latham &
Watkins at the time of the release of the Escrowed Funds as provided herein, the
Company may rely on the facsimile copy of such certificate until the original is
received by Latham & Watkins.
(c) In connection with the Repurchase, on April 30, 2002, the Company shall
deliver to Simpson Thacher & Bartlett, counsel to the Purchaser, a facsimile
copy of one or more certificates, in the name of the Purchaser, representing the
remaining 1,111,861 Preferred Shares not subject to the Repurchase, free and
clear of all liens and encumbrances (the "Remaining Shares"). The Company shall
send the original certificate(s) representing the Remaining Shares to Simpson
Thacher & Bartlett by overnight courier for delivery on May 1, 2002. The
original and facsimile copies of the certificate(s) representing the remaining
shares shall be held in escrow by Simpson Thacher & Bartlett until the
distribution of the Escrowed Funds as provided herein, and thereafter Simpson
Thacher & Bartlett shall release such certificate(s) to the Purchaser. In the
event that the original certificate(s) for the Remaining Shares have not been
received by Simpson Thacher & Bartlett at the time of the release of the
Escrowed Funds as provided herein, the Purchaser may rely on the facsimile copy
of such certificate(s) until the original(s) are received by Simpson Thacher &
Bartlett.
(d) The Company and the Purchaser hereby irrevocably direct the Escrow
Agent to, and the Escrow Agent shall, deliver on April 30, 2002, cash in the
amount of seven million eight hundred fifty-five thousand three hundred
seventy-seven dollars and thirteen cents ($7,855,377.13), which represents the
Development Amount and the Accrued Interest Amount, by wire transfer of
immediately available funds to the following account of the Company:
To: SIL VLY BK SJ
Routing & Transit #: 121140399
For credit of: TiVo checking account
Credit account number: 3300224342
By order of: America Online, Inc.
(e) In addition, the Company and the Purchaser hereby irrevocably direct
the Escrow Agent to, and the Escrow Agent shall, deliver cash in the amount of
any additional interest earned on the Escrowed Funds prior to April 30, 2002,
but credited to the Escrow Account subsequent to April 30, 2002, to the account
of the Company specified in Section 2(d) above as soon as practicable after such
funds are credited to the Escrow Account.
(f) The Company, the Purchaser and the Escrow Agent each acknowledge that
this Agreement constitutes written notice, as required by Section 1.4(b) of the
Investment Agreement, of the Purchaser's intention to exercise the Put Option
and release instructions in accordance with the Escrow Agreement.
(g) Effective upon the distribution of the Escrowed Funds as provided
herein, each of the Purchaser and the Company releases and discharges the Escrow
Agent from any and all claims, liens, charges and other rights under the Escrow
Agreement.
3. Conversion of the Remaining Preferred Shares. The Purchaser hereby
irrevocably agrees to convert on September 13, 2002 (the "Conversion") all
shares of Preferred Stock then held by the Purchaser into shares of Common Stock
(the "Conversion Shares") pursuant to and in accordance with Article III,
Section D(4)(d) of the Restated Certificate.
4. Waiver of Dividend Rights to the Terms of the Preferred Stock. Pursuant
to Article III, Section D(1)(e) of the Restated Certificate, the Purchaser, as
the holder of all the outstanding shares of Preferred Stock, hereby elects to
irrevocably waive the Company's obligation to pay dividends on any shares of
Preferred Stock pursuant to Article III, Sections D(1)(a) through (d) of the
Restated Certificate effective April 1, 2002 and further waives, effective April
1, 2002, the accrual of any such dividends, including, without limitation, for
purposes of calculating the conversion rate of the Preferred Stock pursuant to
Article III, Section D(4)(b) of the Restated Certificate. The right of the
Preferred Stock to participate in dividends or distributions paid on the Common
Stock, contained in Article III, Section D(1)(f) of the Restated Certificate,
shall not be affected.
5. Termination and Release.
(a) Pursuant to Section 5 of Article I of the Escrow Agreement, upon the
release by the Escrow Agent of the Escrowed Funds to the Purchaser and the
Company in accordance with the provisions hereof, the Escrow Agreement shall
terminate, and there shall be no remaining rights or obligations of the Company
or the Purchaser thereunder.
(b) Pursuant to Section 7.1 of the Investment Agreement, the parties hereby
mutually agree that upon the release by the Escrow Agent of the Escrowed Funds
to the Purchaser and the Company in accordance with the provisions hereof, the
Investment Agreement shall terminate, and, except as set forth in Section 5(c)
below, there shall be no remaining rights or obligations of the Company or the
Purchaser thereunder.
(c) Effective upon the termination of the Investment Agreement and the
Escrow Agreement, each party to the Investment Agreement and the Escrow
Agreement, on behalf of itself and each of its respective successors, assigns,
affiliates and representatives, hereby forever releases and discharges each
other from any and all liabilities, claims, liens, charges and other rights and
obligations (each, a "Claim") with respect to the Escrowed Funds, the Escrow
Agreement and the Investment Agreement, except in the case of the Investment
Agreement, for any Claim for a breach of any of the representations and
warranties contained therein. The Purchaser and the Company hereby mutually
agree that the release of the Escrowed Funds to the Purchaser and the Company in
accordance with the provisions hereof satisfies all rights and obligations of
the Purchaser and the Company with respect to the Escrowed Funds under the
Investment Agreement and the Escrow Agreement.
6. Waiver of Registration Rights.
(a) The Purchaser, as to all of the Registrable Securities (as defined in
the Stockholders Agreement) owned by the Purchaser, hereby (i) waives all
piggy-back registration rights that it may be entitled to pursuant to Section
5.2 of the Stockholders Agreement in connection with the filing of any
registration statement with the Securities and Exchange Commission that relates
solely to the issuance or resale of Common Stock of the Company issued for
consideration other than cash or Cash Equivalents in connection with any bona
fide arm's length commercial agreement approved by the Board of Directors of the
Company or an authorized committee of the Board of Directors of the Company
(each such registration statement, a "Commercial Registration Statement"), and
(ii) waives the Company's obligation to comply with all notice requirements
under Section 5.2 of the Stockholders Agreement in connection with any
Commercial Registration Statement. For purposes of this Section 6(a), the term
"Cash Equivalents" shall mean (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or any agency
thereof; (ii) certificates of deposit, bankers' acceptances, time deposits,
eurodollar time deposits or overnight bank deposits issued by, or repurchase
obligations of, any commercial bank organized under the laws of the United
States of America or any state thereof; (iii) commercial paper instruments; (iv)
securities issued or fully guaranteed by any state, commonwealth or territory of
the United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government; and (v) shares of
money market, mutual or similar funds.
(b) In addition to the foregoing, the Purchaser and the Company hereby
amend clause (ii) of the last sentence of the definition of "Registrable
Securities" in the Stockholders Agreement to read in its entirety:
"(ii) (x) such securities shall have been distributed to the
public or (y) such securities are otherwise saleable pursuant to Rule
144(k) under the Securities Act and, solely with respect to such
securities held by AOL or its Affiliates, the Company and AOL
reasonably agree that AOL or such Affiliate has not been an Affiliate
of the Company for at least three (3) months; or"
(c) The waivers set forth in this Section 6 shall not constitute a waiver
of any of the Purchaser's other rights pursuant to the Stockholders Agreement or
any other agreement between the Purchaser and the Company.
7. Termination of Certain Provisions of the Stockholders Agreement. Upon
release by the Escrow Agent of the Escrowed Funds to the Purchaser and the
Company in accordance with the provisions hereof, Article II of the Stockholders
Agreement shall be terminated and shall be of no further force or effect.
8. Transfers. Subsequent to the termination of the Standstill Period (as
defined in the Stockholders Agreement) and until the first date on which the
Purchaser does not beneficially own in excess of 4.0% of the outstanding shares
of Common Stock (as calculated pursuant to Rule 13d-3 under the Exchange Act):
(a) the Purchaser shall, prior to any block sale on securities exchange or
automated quotation system in excess of 500,000 shares of Common Stock (or
securities convertible into, or exchangeable or exercisable for, in excess of
500,000 shares of Common Stock) at a discount (the "Transfer Price Limit") in
excess of 6.0% of the average of the daily volume weighted average price of the
Common Stock over the five trading days prior to the date of such proposed block
sale deliver to the Company written notice (the "Transfer Notice"), which notice
shall state the number of Equity Securities proposed to be transferred (the
"Transfer Securities"), the intended method of transfer and the proposed minimum
price at which such Common Stock will be transferred;
(b) for a period of three (3) business days following receipt of the
Transfer Notice, the Company shall have the option, but not the obligation, by
written notice to the Purchaser (the "Option Notice"), to require the Purchaser
to effect the Transfer of such Transfer Securities through an underwritten, SEC
registered, secondary offering (a "Registered Offering"). In the event the
Company exercises its option pursuant to this Section 8(b), the Company and the
Purchaser shall have such rights and obligations with respect to such offering
as if the Transfer Securities were "Registrable Securities" pursuant to the
terms of the Stockholders Agreement and the Transfer Notice was an otherwise
permissible request for an underwritten registration pursuant to Section 5.1 of
the Stockholders Agreement; provided that (i) at the closing of a Registered
Offering, the Company shall pay to the Purchaser an amount in cash equal to the
amount by which the price at which such Transfer Securities are sold in the
Registered Offering (less any underwriting discounts or commissions and any
out-of-pocket fees and expenses incurred or paid by the Purchaser which would
not have been incurred or paid in the block sale identified in the Transfer
Notice) is less than the Transfer Price Limit, if at all, and (ii) any such
Registered Offering shall not reduce the number of registration requests to
which the Purchaser is entitled pursuant to Section 5.1 of the Stockholders
Agreement;
(c) notwithstanding the foregoing, this Section 8 shall:
(i) cease to apply to any block sale of Transfer Securities (x)
if the Company does not exercise its option pursuant to and in
accordance with Section 8(b) or (y) if the Company exercises its
option pursuant to and in accordance with Section 8(b), and the
Registered Offering has not been completed within either (A)
forty-five (45) days of delivery of the Option Notice by the Company
to the Purchaser in the event the Securities and Exchange Commission
notifies the Company that it will not review the registration
statement filed pursuant to this Section 8 or (B) ninety (90) days of
delivery of the Option Notice by the Company to the Purchaser in the
event the Securities and Exchange Commission notifies the Company that
it will review the registration statement filed pursuant to this
Section 8; and
(ii) not apply to transactions (including swaps, options, puts,
calls, cashless collars, forward contracts, prepaid forward contracts,
futures contracts, lending or borrowing of shares) that are entered
into solely for bona fide hedging purposes.
9. Transferees Bound. In addition to any limitations on transfer or other
transfer restrictions contained in the Stockholders Agreement or any other
agreement between the Company and the Purchaser, the Purchaser agrees:
(a) not to Transfer (as defined in the Stockholders Agreement) any shares
of Preferred Stock unless such Transferee agrees to be bound by the provisions
of Sections 3, 4 and 8 of this Agreement;
(b) not to Transfer any Equity Securities (including shares of Preferred
Stock) and simultaneously transfer any registration rights with respect to such
Equity Securities pursuant to the Stockholders Agreement unless such Transferee
agrees to be bound by the provisions of Section 6 of this Agreement; and
(c) not to Transfer any Equity Securities (including shares of Preferred
Stock) to any Affiliate (as defined in the Stockholders Agreement) of the
Purchaser unless such Transferee agrees to be bound by the provisions of Section
8 of this Agreement.
10. Confidentiality. Before the Company or any of its affiliates releases
any press release or other statement or makes any other disclosure concerning
the exercise of the Put Option, this Agreement or the matters contemplated
hereby (excluding any disclosure contained in any filing of the Company with the
SEC), the Company shall cooperate with the Purchaser, furnish drafts of all such
statements or disclosure to the Purchaser, and provide the Purchaser a
reasonable opportunity to review and comment upon any such statement or
disclosure. The Company shall reflect all reasonable comments and requests of
the Purchaser in such statement or disclosure prior to the release thereof, and
the Purchaser agrees to review and provide comments on any such statement or
disclosure promptly following receipt thereof. The Company shall not release or
make or permit the release or making of any such statement or disclosure unless
it has first complied with the foregoing.
11. Counterparts. This Agreement may be executed simultaneously or in any
number of counterparts, each of which shall be deemed to be an original, and all
of which shall constitute one and the same instrument.
12. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York as such laws are applied to agreements to be
performed entirely in such state.
IN WITNESS WHEREOF, each of the undersigned has executed this Funds Release
Agreement dated as of the date first written above.
TIVO INC.
By: /s/ David H. Courtney
---------------------
Name: David H. Courtney
Title: Executive Vice
President
AMERICA ONLINE, INC.
By: /s/ Lynda Clarizio
------------------
Name: Lynda Clarizio
Title: Senior Vice President
Acknowledged and Agreed:
BNY WESTERN TRUST COMPANY, as
successor in interest to U.S. Trust Company,
National Association
By: /s/ J. Kovatz
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Name: J. Kovatz
Title: Assistant Vice President