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. 2)
TIVO INC.
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
888706108
(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
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 11, 2001
(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 / /.
Page 2 of 12
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
AOL Time Warner Inc.
13-4099534
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) / /
(b) / /
3 SEC USE ONLY:
4 SOURCE OF FUNDS:
Not Applicable (See Item 3)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
16,138,599
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
16,138,599
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON:
16,138,599
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
30.0% (1)
14 TYPE OF REPORTING PERSON:
HC
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Page 3 of 12
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
America Online, Inc.54-1322110
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a)
(b)
3 SEC USE ONLY:
4 SOURCE OF FUNDS:
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
16,138,599
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
16,138,599
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
16,138,599
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
30.0%(1)
14 TYPE OF REPORTING PERSON:
CO
_________________________
(1) Based on the number of shares of TiVo Common Stock outstanding on
September 30, 2000, as disclosed by TiVo Inc. in its Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2000. 5,134,722 shares of Common Stock were issued to America
Online, Inc. ("America Online") pursuant to the Investment
Agreement dated as of June 9, 2000 (the "Investment Agreement")
among TiVo and America Online, 2,711,861 shares of Common Stock are
issuable upon conversion of 2,711,861 shares of Preferred Stock
acquired pursuant to the Investment Agreement, and 7,811,709 shares
of Common Stock are issuable upon the exercise of the Warrants
acquired pursuant to the Investment Agreement. 480,307 shares were
purchased by America Online in August 1999.
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Page 4 of 12
AOL Time Warner Inc., a Delaware corporation ("AOL Time
Warner"), and its wholly owned subsidiary, America Online, Inc., a
Delaware corporation ("America Online") (collectively, the "Reporting
Persons"), hereby file this Amendment No. 2 ("Amendment No. 2") 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 (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"). As provided in the Joint Filing
Agreement filed as Exhibit No. 4 hereto, the Reporting Persons have
agreed pursuant to Rule 13d-1(k) under the Securities Exchange Act of
1934, to file one Statement on Schedule 13D with respect to their
ownership of TiVo Common Stock.
This Amendment No. 2 is being filed solely to reflect the
combination (the "Holding Company Transaction") on January 11, 2001 of
America Online and Time Warner Inc. ("Time Warner"), in connection with
which (1) each of America Online and Time Warner became a wholly owned
subsidiary of AOL Time Warner and (2) AOL Time Warner became the ultimate
beneficial owner of the TiVo Common Stock held of record by America
Online.
Capitalized terms used but not defined in this Amendment No. 2
have the meaning assigned thereto in the Statement. The Statement is
hereby amended and supplemented by this Amendment No. 2.
Item 2. Identity and Background.
The response to Item 2 of the Statement is hereby amended in
its entirety to read as follows:
"This statement is being filed by AOL Time Warner Inc., a
Delaware corporation ("AOL Time Warner"), having its principal executive
offices at 75 Rockefeller Plaza, New York,
New York 10019, and America Online, Inc., a Delaware corporation
("America Online") (America Online, together with AOL Time Warner, the
"Reporting Persons"), having its principal executive offices at 22000 AOL
Way, Dulles, Virginia 20166.
AOL Time Warner is the first internet powered media and
communications company. Its business interests include: interactive
services, cable systems, publishing, music, networks and filmed
entertainment. Substantially all of AOL Time Warner's interests in
filmed entertainment, most of its interests in cable systems and a
substantial portion of its interests in networks are held through
Time Warner Entertainment Company, L.P., a Delaware limited partnership
in which AOL Time Warner has a majority interest. America Online is a
direct wholly owned subsidiary of AOL Time Warner. America Online is the
world's leader in branded interactive services and content.
To the best of the knowledge of the Reporting Persons as of the
date hereof, the name, business address, present principal occupation or
employment and citizenship of each executive officer and director of each
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Page 5 of 12
Reporting Person, and the name, principal business and address of any
corporation or other organization in which such employment is conducted
is set forth in Schedules I and II hereto. The information contained in
Schedules I and II is incorporated herein by reference.
During the last five years, none of the Reporting Persons nor,
to the best knowledge of the Reporting Persons, any of their executive
officers or directors listed in Schedules I and II hereto, has been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or state securities laws or finding any violation
with respect to such laws.
This Statement is being filed while the Reporting Persons are
in the process of verifying information required herein from their
respective directors and executive officers. If the Reporting Persons
obtain information concerning such individuals which would cause a
material change in the disclosure contained herein, an amendment to this
Statement will be filed that will disclose such change.
To the best knowledge of the Reporting Persons, no directors or
officers of the Reporting Persons have legal or beneficial ownership of
any TiVo Common Stock."
Item 3. Source and Amount of Funds or Other Consideration.
The response to Item 3 of the Statement is hereby amended and
supplemented by adding paragraphs two and three thereto to read in their
entirety as follows:
"On January 11, 2001, the Holding Company Transaction was
consummated pursuant to the Second Amended and Restated Agreement and
Plan of Merger, dated as of January 10, 2000, by and among AOL Time
Warner, America Online, America Online Merger Sub Inc., a Delaware
corporation and a direct wholly owned subsidiary of AOL Time Warner
("America Online Merger Sub"), Time Warner and Time Warner Merger Sub
Inc., a Delaware corporation and a direct wholly owned subsidiary of AOL
Time Warner ("Time Warner Merger Sub"), whereby among other things,
America Online Merger Sub merged with and into America Online with
America Online continuing as the surviving corporation and becoming a
direct wholly owned subsidiary of AOL Time Warner and Time Warner Merger
Sub merged with and into Time Warner with Time Warner continuing as the
surviving corporation and becoming a direct wholly owned subsidiary of
AOL Time Warner (together, the "Mergers"). In addition, upon consummation
of the Mergers (i) each outstanding share of America Online Common Stock
was automatically converted into one share of AOL Time Warner Common Stock,
(ii) each outstanding share of Time Warner Common Stock was automatically
converted into 1.5 shares of AOL Time Warner Common Stock, and (iii) each
outstanding share of Time Warner Series LMCN-V Common Stock was
automatically converted into 1.5 shares of AOL Time Warner Series LMCN-V
-5-
Page 6 of 12
Common Stock having terms substantially identical to those of the Time
Warner Series LMCN-V Common Stock.
As a result of the Holding Company Transaction, AOL Time Warner
became the ultimate beneficial owner of the TiVo Common Stock."
Item 4. Purpose of Transaction.
The response to Item 4 of the Statement is hereby amended by
adding the following paragraphs to the end thereof:
"As described in Item 3 above, AOL Time Warner became the
ultimate beneficial owner of the TiVo Common Stock as a result of the
consummation of the Holding Company Transaction.
AOL Time Warner and America Online intend to review and
evaluate their investment in TiVo from time to time, consistent with the
contractual restrictions set forth above. On the basis of such review
and evaluation, AOL Time Warner and America Online may acquire additional
TiVo securities from time to time in market transactions or otherwise or
may dispose of some or all of their holdings of TiVo securities from time
to time in market transactions or otherwise.
Other than as described above, neither AOL Time Warner or
America Online has any current plans or proposals that relate to or would
result in (i) the acquisition or disposition of securities of TiVo; (ii)
an extraordinary corporate transaction, such as a merger, reorganization
or liquidation, involving TiVo or any of its subsidiaries; (iii) a sale
or transfer of a material amount of assets of TiVo or any of its
subsidiaries; (iv) any change in the present board of directors or
management of TiVo, including any current plans or proposals to change
the number or term of directors or to fill any existing vacancies on the
board of directors of TiVo; (v) any material change in the present
capitalization or dividend policy of TiVo; (vi) any other material change
in TiVo's business or corporate structure; (vii) changes in TiVo's
charter, by-laws or instruments corresponding thereto or other actions
which may impede the acquisition of control of TiVo by any person; (viii)
causing a class of securities of TiVo to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities
association; (ix) causing a class of equity securities of TiVo to become
eligible for termination of registration pursuant to Section 12(g)(4) of
the Securities Exchange Act of 1934, as amended; or (x) any action
similar to any of those enumerated in clauses (i) through (ix) of this
sentence."
Item 5. Interest in Securities of TiVo.
The response to Item 5 of the Statement is hereby amended by
deleting paragraph five and adding paragraphs five and six thereto to
read in their entirety as follows:
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Page 7 of 12
"On January 11, 2001, in connection with the Holding Company
Transaction described in Item 3 above, America Online became a direct
wholly owned subsidiary of AOL Time Warner. As a result, AOL Time Warner
and America Online may be deemed to have shared power to vote and dispose
of the 16,138,599 shares of TiVo Common Stock registered in the name of
America Online and owned beneficially by AOL Time Warner.
Except as described herein, to the best knowledge of the
Reporting Persons as of the date hereof, (i) none of the Reporting
Persons nor any of the executive officers or directors of the Reporting
Persons, beneficially owns any shares of TiVo Common Stock, and (ii)
there have been no transactions in the shares of TiVo Common Stock
effected during the past 60 days by the Reporting Persons, nor, to the
best of the knowledge of the Reporting Persons, by any of the executive
officers or directors of the Reporting Persons."
Item 7. Material to Be Filed as Exhibit.
The response to Item 7 of the Statement is hereby amended and
supplemented to include Exhibit 4 as follows:
Exhibit Number Description
-------------- -----------
4 Joint Filing Agreement, dated January 22, 2001,
between AOL Time Warner Inc. and America Online,
Inc.
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Page 8 of 12
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/ J. Michael Kelly
----------------------------
Name: J. Michael Kelly
Title: Executive Vice President and
Chief Financial Officer
AMERICA ONLINE, INC.
By: /s/ Randall J. Boe
----------------------------
Name: Randall J. Boe
Title: Senior Vice President,
General Counsel and Secretary
Dated: January 22, 2001
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Page 9 of 12
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF AOL TIME WARNER
The following table sets forth the name, business
address and present principal occupation or employment of each director
and executive officer of AOL Time Warner. Except as indicated below,
each such person is a U.S. citizen, and the business address of each such
person is 75 Rockefeller Plaza, New York, New York 10019.
Board of Directors
------------------
Name and Title Present Principal Occupation
-------------- ----------------------------
Stephen M. Case Chairman of the Board;
Chairman of the Board AOL Time Warner Inc.
Gerald M. Levin Chief Executive Officer;
Chief Executive Officer AOL Time Warner Inc.
Kenneth J. Novack Vice Chairman;
Vice Chairman AOL Time Warner Inc.
R.E. Turner Vice Chairman and Senior Advisor;
Vice Chairman and AOL Time Warner Inc.
Senior Advisor
Daniel F. Akerson Chairman of the Board and
Chief Executive Officer;
XO Communications, Inc.
1505 Farm Credit Drive
McLean, VA 22101
(a broadband and communications company)
James L. Barksdale Partner;
The Barksdale Group
c/o AOL Time Warner Inc.
(a venture capital firm)
Stephen F. Bollenbach President and Chief Executive Officer;
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
(hotel ownership and management)
Frank J. Caufield Partner; Kleiner Perkins Caufield &
Byers
Four Embarcadero Center
San Francisco, CA 94111
(a venture capital partnership)
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Page 10 of 12
Miles R. Gilburne Director; AOL Time Warner Inc.
Carla A. Hills Chairman and Chief Executive Officer;
Hills & Company
1200 19th Street, NW
Washington, DC 20036
(international trade and
investment consultants)
Reuben Mark Chief Executive Officer;
Colgate-Palmolive Company
300 Park Avenue
New York, NY 10022
(consumer products)
Michael A. Miles Former Chairman of the Board and Chief
Executive Officer of Phillip Morris
Companies Inc.; Director of Various
Companies
Three Lakes Drive
Northfield, IL 60093
Richard D. Parsons Co-Chief Operating Officer;
Co-Chief Operating Officer AOL Time Warner Inc.
Robert W. Pittman Co-Chief Operating Officer;
Co-Chief Operating Officer AOL Time Warner Inc.
Franklin D. Raines Chairman and Chief Executive Officer;
Fannie Mae
3900 Wisconsin Avenue NW
Washington, DC 20016-2806
(a non-banking financial services company)
Francis T. Vincent, Jr. Chairman of Vincent Enterprises
(private investor) and
Director of Various Companies
300 First Stamford Place
Stamford, CT 06902
Executive Officers Who Are Not Directors
----------------------------------------
Name Title and Present Principal Occupation
---- --------------------------------------
Richard J. Bressler Executive Vice President;
AOL Time Warner Inc.
Paul T. Cappuccio Executive Vice President, General
Counsel and Secretary; AOL Time Warner
Inc.
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Page 11 of 12
David Colburn Executive Vice President;
AOL Time Warner Inc.
J. Michael Kelly Executive Vice President and Chief
Financial Officer; AOL Time Warner Inc.
Kenneth B. Lerer Executive Vice President;
AOL Time Warner Inc.
William J. Raduchel Executive Vice President and Chief
Technology Officer; AOL Time Warner Inc.
Mayo S. Stuntz, Jr. Executive Vice President;
AOL Time Warner Inc.
George Vradenburg, III Executive Vice President for Global and
Strategic Policy; AOL Time Warner Inc.
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Page 12 of 12
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS
OF AMERICA ONLINE, INC.
The following table sets forth the name, business address and
present principal occupation or employment of each director and executive
officer of America Online, Inc. Unless otherwise noted, each such person
is a U.S. citizen, and the business address of each such person is 75
Rockefeller Plaza, New York, New York 10019.
Board of Directors
------------------
Name and Title Present Principal Occupation
-------------- ----------------------------
Paul T. Cappuccio Executive Vice President, General
Counsel and Secretary; AOL Time Warner
Inc.
J. Michael Kelly Executive Vice President and Chief
Financial Officer; AOL Time Warner Inc.
Barry M. Schuler Chairman and Chief Executive Officer;
Chairman and Chief America Online, Inc.
Executive Officer
Executive Officers Who Are Not Directors
----------------------------------------
Name Title and Present Principal Occupation
---- --------------------------------------
Janice Brandt Vice Chair and Chief Marketing Officer;
America Online, Inc.
Theodore J. Leonsis Vice Chair and New Product Officer;
America Online, Inc.
Raymond J. Oglethorpe President and Chief Operating Officer;
America Online, Inc.
Joseph A. Ripp Executive Vice President, Chief Financial
Officer and Treasurer; America Online, Inc.
Mark E. Stavish Executive Vice President, Human
Resources; America Online, Inc.
Randall J. Boe Senior Vice President, General Counsel
and Secretary; America Online, Inc.
Ann Brackbill Senior Vice President, Corporate
Communications; America Online, Inc.
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Exhibit 4
JOINT FILING AGREEMENT
AOL Time Warner Inc., a Delaware corporation, and
America Online, Inc., a Delaware corporation, each hereby agrees, in
accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934,
as amended, that the Schedule 13D filed herewith, and any amendments
thereto, relating to the shares of common stock, par value $0.001, of
TiVo Inc., a Delaware corporation, is, and will be, jointly filed on
behalf of each such person and further agree that this Joint Filing
Agreement be included as an exhibit to such joint filings. In evidence
thereof, the undersigned hereby execute this Agreement as of the date set
forth below.
Dated: January 22, 2001
AOL TIME WARNER INC.
By: /s/ J. Michael Kelly
----------------------------
Name: J. Michael Kelly
Title: Executive Vice President and
Chief Financial Officer
AMERICA ONLINE, INC.
By: /s/ Randall J. Boe
----------------------------
Name: Randall J. Boe
Title: Senior Vice President,
General Counsel and Secretary