Certificate of Incorporation - TiVo Inc.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
TIVO INC.
Pursuant to Sections 242 and 245 of Delaware Code
Michael Ramsay and Alan C. Mendelson hereby certify that:
1. The name of this corporation is TiVo Inc. The name under which this
corporation was originally incorporated is Teleworld Inc. and the date of filing
the original Certificate of Incorporation of this corporation with the Secretary
of State of the State of Delaware is August 4, 1997.
2. They are the duly elected and acting President and Secretary,
respectively, of TiVo Inc., a Delaware corporation.
3. The Certificate of Incorporation of this corporation is hereby amended
and restated to read as follows:
I.
The name of the corporation is TiVo Inc. (the "Corporation" or the
"Company").
II.
The address of the registered office of the Corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of the
Corporation's registered agent at said address is Amerisearch Corporate Services
Inc.
III.
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is Eighty Million Five
Hundred Thirty-Eight Thousand Seven Hundred Eighty-Nine (80,538,789) shares,
Fifty-Four Million (54,000,000) shares of which shall be Common Stock (the
"Common Stock") and Twenty-Six Million Five Hundred Thirty-Eight Thousand Seven
Hundred Eighty-Nine (26,538,789) shares of which shall be Preferred Stock (the
"Preferred Stock"). The Preferred Stock shall have a par value of One-Tenth of
One Cent ($.001) per share and the Common Stock shall have a par value of One-
Tenth of One Cent ($.001) per share.
B. The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares of Common Stock then outstanding
or reserved for issuance upon conversion of outstanding Preferred Stock) by the
affirmative vote of the holders of a majority of the stock of the Corporation
(voting together on an as-if-converted basis).
1.
<PAGE>
C. Five Million Two Hundred Thousand (5,200,000) of the authorized shares
of Preferred Stock are hereby designated "Series A Preferred Stock," Four
Million Four Hundred Thousand (4,400,000) of the authorized shares of Preferred
Stock are hereby designated "Series B Preferred Stock," Four Million (4,000,000)
of the authorized shares of Preferred Stock are hereby designated "Series C
Preferred Stock," Two Million Five Hundred Thousand (2,500,000) of the
authorized shares of Preferred Stock are hereby designated "Series D Preferred
Stock," Three Hundred Thousand (300,000) of the authorized shares of Preferred
Stock are hereby designated "Series E Preferred Stock," Five Hundred Thousand
(500,000) of the authorized shares of Preferred Stock are hereby designated
"Series F Preferred Stock," One Million One Hundred Thousand (1,100,000) of the
authorized shares of Preferred Stock are hereby designated "Series G Preferred
Stock," Two Million One Hundred Thousand (2,100,000) of the authorized shares of
Preferred Stock are hereby designated "Series H Preferred Stock," Three Million
Three Hundred Fifteen Thousand (3,315,000) of the authorized shares of Preferred
Stock are hereby designated "Series I Preferred Stock," and Three Million One
Hundred Twenty-Three Thousand Seven Hundred Eighty-Nine (3,123,789) of the
authorized shares of Preferred Stock are hereby designated "Series J Preferred
Stock" (together, the "Series Preferred").
D. The rights, preferences, privileges, restrictions and other matters
relating to the Series Preferred are as follows:
1. Dividend Rights.
(a) Holders of Series Preferred, prior and in preference to the
holders of any other stock of the Company ("Junior Stock"), shall be entitled to
receive, when, if, and as declared by the Board of Directors, but only out of
funds that are legally available therefor, cash dividends at the rate of ten
percent (10%) of the "Original Issue Price" per annum on each outstanding share
of Series Preferred (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares). The Original Issue
Price of the Series A Preferred Stock shall be Sixty Cents ($.60), the Original
Issue Price of the Series B Preferred Stock shall be One Dollar and Twenty-Six
Cents ($1.26), the Original Issue Price of the Series C Preferred Stock shall be
One Dollar and Eighty-Five Cents ($1.85), the Original Issue Price of the Series
D Preferred Stock shall be Three Dollars and Sixty-Eight Cents ($3.68), the
Original Issue Price of the Series E Preferred Stock shall be Seven Dollars and
Forty Cents ($7.40) the Original Issue Price of the Series F Preferred Stock
shall be Seven Dollars and Forty Cents ($7.40), the Original Issue Price of the
Series G Preferred Stock shall be Seven Dollars and Forty Cents ($7.40), the
Original Issue Price of the Series H Preferred Stock shall be Seven Dollars and
Forty Cents ($7.40), the Original Issue Price of the Series I Preferred Stock
shall be Ten Dollars and Forty-One Cents ($10.41) and the Original Issue Price
of the Series J Preferred Stock shall be Ten Dollars and Forty-One Cents
($10.41). Such dividends shall be payable only when, as and if declared by the
Board of Directors and shall be non-cumulative. Each share of Series Preferred
shall rank on a parity with each other share of Series Preferred, irrespective
of series, with respect to dividends, and no dividends shall be declared or paid
or set apart for payment on any series of Series Preferred unless at the same
time a dividend, bearing the same proportion to the applicable dividend rate,
shall be declared or paid or set apart for payment, as the case may be, on each
other series of Series Preferred then outstanding.
2.
<PAGE>
(b) So long as any shares of Series Preferred shall be
outstanding, no dividend, whether in cash or property, shall be paid or
declared, nor shall any other distribution be made, on any Junior Stock, nor
shall any shares of any Junior Stock of the Company be purchased, redeemed, or
otherwise acquired for value by the Company (except for acquisitions of Common
Stock by the Company pursuant to agreements which permit the Company to
repurchase such shares upon termination of services to the Company or in
exercise of the Company's right of first refusal upon a proposed transfer) until
all dividends (set forth in Section 1(a) above) on the Series Preferred shall
have been paid or declared and set apart. In the event dividends are paid on any
share of Common Stock, an additional dividend shall be paid with respect to all
outstanding shares of Series Preferred in an amount per share (on an as-if-
converted to Common Stock basis) equal to the amount paid or set aside for each
share of Common Stock. The provisions of this Section 1(b) shall not, however,
apply to (i) a dividend payable in Common Stock, (ii) the acquisition of shares
of any Junior Stock in exchange for shares of any other Junior Stock, or (iii)
any repurchase of any outstanding securities of the Company that is unanimously
approved by the Company's Board of Directors.
2. Voting Rights.
(a) General Rights. Except as otherwise provided herein or as
required by law, the Series Preferred shall be voted equally with the shares of
the Common Stock of the Company and not as a separate class, at any annual or
special meeting of shareholders of the Company, and may act by written consent
in the same manner as the Common Stock, in either case upon the following basis:
each holder of shares of Series Preferred shall be entitled to such number of
votes as shall be equal to the whole number of shares of Common Stock into which
such holder's aggregate number of shares of Series Preferred are convertible
(pursuant to Section 4 hereof) immediately after the close of business on the
record date fixed for such meeting or the effective date of such written
consent.
(b) Separate Vote of Series Preferred. For so long as at least
4,000,000 shares of Series Preferred (subject to adjustment for any stock split,
reverse stock split or other similar event affecting the Series Preferred)
remain outstanding, in addition to any other vote or consent required herein or
by law, the vote or written consent of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding Series Preferred shall be
necessary for effecting or validating the following actions:
(i) Any amendment, alteration, or repeal of any provision
of the Certificate of Incorporation or the Bylaws of the Company, whether by
merger, consolidation or otherwise (including any filing of a Certificate of
Designation) other than any amendment to the Certificate of Incorporation of the
Company made solely to increase the number of authorized shares of Common Stock
to enable the Company to comply with Section 4(o);
(ii) Alteration or change in the voting powers,
preferences, or other special rights or privileges, qualifications, limitations,
or restrictions of the Series Preferred, whether by merger, consolidation or
otherwise;
(iii) Any increase or decrease (other than by redemption or
conversion) in the authorized number of shares of Preferred Stock;
3.
<PAGE>
(iv) Any authorization or any designation, whether by
reclassification or otherwise, of any new class or series of stock or any other
securities convertible into equity securities of the Company ranking on a parity
with or senior to the Series Preferred in right of redemption, liquidation
preference, voting or dividends or any increase in the authorized or designated
number of any such new class or series;
(v) Any redemption, repurchase, payment of dividends or
other distributions with respect to Junior Stock or Series Preferred (except for
acquisitions of Common Stock by the Company pursuant to employee agreements
which permit the Company to repurchase such shares upon termination of services
to the Company or in exercise of the Company's right of first refusal upon a
proposed transfer);
(vi) An Asset Transfer or Acquisition (each as defined in
Section 3(c));
(vii) A reclassification or recapitalization of the
outstanding capital stock of the Company; or
(viii) Any increase or decrease in the authorized number of
members of the Company's Board of Directors.
(c) Election of Board of Directors. For so long as at least
4,000,000 shares of Series Preferred remain outstanding (subject to adjustment
for any stock split, reverse stock split or similar event affecting the Series
Preferred), (i) the holders of Series A Preferred Stock and Series B Preferred
Stock, voting together as a separate class, shall be entitled to elect two (2)
members of the Company's Board of Directors at each meeting or pursuant to each
consent of the Company's shareholders for the election of directors, and to
remove from office such directors and to fill any vacancy caused by the
resignation, death or removal of such directors; (ii) the holders of Common
Stock, voting as a separate class, shall be entitled to elect two (2) members of
the Board of Directors at each meeting or pursuant to each consent of the
Company's shareholders for the election of directors, and to remove from office
such directors and to fill any vacancy caused by the resignation, death or
removal of such directors; (iii) the holders of Series C Preferred Stock, Series
D Preferred Stock and Series E Preferred Stock, voting together as a separate
class, shall be entitled to elect one (1) member of the Board of Directors at
each meeting or pursuant to each consent of the Company's shareholders for the
election of directors, and to remove from office such director and to fill any
vacancy caused by the resignation, death or removal of such director; (iv) the
holders of Series G Preferred Stock, voting as a separate class, shall be
entitled to elect one (1) member of the Board of Directors at each meeting or
pursuant to each consent of the Company's shareholders for the election of
directors, and to remove from office such director and to fill any vacancy
caused by the resignation, death or removal of such director; (v) the holders of
Series H Preferred Stock, voting as a separate class, shall be entitled to elect
one (1) member of the Board of Directors at each meeting or pursuant to each
consent of the Company's shareholders for the election of directors, and to
remove from office such director and to fill any vacancy caused by the
resignation, death or removal of such director; (vi) the holders of Series I
Preferred Stock, voting as a separate class, shall be entitled to elect one (1)
member of the Board of Directors at each meeting or pursuant to each consent of
the Company's shareholders for the election of directors, and to
4.
<PAGE>
remove from office such director and to fill any vacancy caused by the
resignation, death or removal of such director; (vii) the holders of Series J
Preferred Stock, voting as a separate class, shall be entitled to elect one (1)
member of the Board of Directors at each meeting or pursuant to each consent of
the Company's shareholders for the election of directors, and to remove from
office such director and to fill any vacancy caused by the resignation, death or
removal of such director; and (viii) the holders of Common Stock and Series
Preferred, voting together as a class, shall be entitled to elect all remaining
members of the Board of Directors.
3. Liquidation Rights.
(a) Upon any liquidation, dissolution, or winding up of the
Company, whether voluntary or involuntary, before any distribution or payment
shall be made to the holders of any Junior Stock, the holders of Series
Preferred shall be entitled to be paid out of the assets of the Company an
amount per share of Series Preferred equal to the respective Original Issue
Price (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares) plus all declared
and unpaid dividends on the Series Preferred Stock for each share of Series
Preferred held by them.
(b) After the payment of the full liquidation preference of the
Series Preferred as set forth in Section 3(a) above, the remaining assets of the
Company legally available for distribution, if any, shall be distributed ratably
to the holders of the Common Stock.
(c) The following events shall be considered a liquidation under
this Section:
(i) any consolidation or merger of the Company with or
into any other corporation or other entity or person, or any other corporate
reorganization, in which the stockholders of the Company immediately prior to
such consolidation, merger or reorganization, own less than 50% of the Company's
voting power immediately after such consolidation, merger or reorganization, or
any transaction or series of related transactions in which in excess of fifty
percent (50%) of the Company's voting power is transferred (an "Acquisition");
or
(ii) a sale, lease or other disposition of all or
substantially all of the assets of the Company (an "Asset Transfer").
(iii) If, upon any liquidation, distribution, or winding
up, the assets of the Company shall be insufficient to make payment in full to
all holders of Series Preferred of the liquidation preference set forth in
Sections 3(a), then such assets shall be distributed among the holders of Series
Preferred at the time outstanding, ratably in proportion to the full amounts to
which they would otherwise be respectively entitled.
4. Conversion Rights. The holders of the Series Preferred shall
have the following rights with respect to the conversion of the Series Preferred
into shares of Common Stock (the "Conversion Rights"):
(a) Optional Conversion. Subject to and in compliance with the
provisions of this Section 4, any shares of Series Preferred may, at the option
of the holder, be
5.
<PAGE>
converted at any time into fully-paid and nonassessable shares of Common Stock.
The number of shares of Common Stock to which a holder of Series Preferred shall
be entitled upon conversion shall be the product obtained by multiplying the
"Series Conversion Rate" then in effect (determined as provided in Section 4(b))
by the number of shares of Series Preferred being converted.
(b) Series Preferred. The Series Conversion Rate in effect at any
time for conversion of the Series Preferred (the "Series Conversion Rate") shall
be the quotient obtained by dividing the respective Original Issue Price for
each series of the Series Preferred by the "Series Preferred Price" for such
series, calculated as provided in Section 4(c).
(c) Conversion Price. The conversion price for each series of the
Series Preferred shall initially be the respective Original Issue Price of such
series (in each case, the "Series Preferred Price"). Each such initial Series
Preferred Price shall be adjusted from time to time in accordance with this
Section 4. All references to any Series Preferred Price herein shall mean such
Series Preferred Price as so adjusted.
(d) Mechanics of Conversion. Each holder of Series Preferred who
desires to convert the same into shares of Common Stock pursuant to this Section
4 shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Company or any transfer agent for the Series Preferred, and
shall give written notice to the Company at such office that such holder elects
to convert the same. Such notice shall state the number of shares of Series
Preferred being converted. Thereupon, the Company shall promptly issue and
deliver at such office to such holder a certificate or certificates for the
number of shares of Common Stock to which such holder is entitled and shall
promptly pay in cash or, to the extent sufficient funds are not then legally
available therefor, in Common Stock (at the Common Stock's fair market value
determined by the Board of Directors as of the date of such conversion), any
declared and unpaid dividends on the shares of Series Preferred being converted.
Such conversion shall be deemed to have been made at the close of business on
the date of such surrender of the certificates representing the shares of Series
Preferred to be converted, and the person entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Common Stock on such date.
(e) Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the date that the first share of
Series Preferred is issued (the "Original Issue Date") effect a subdivision of
the outstanding Common Stock without a corresponding subdivision of the
Preferred Stock, each Series Preferred Price in effect immediately before that
subdivision shall be proportionately decreased. Conversely, if the Company shall
at any time or from time to time after the Original Issue Date combine the
outstanding shares of Common Stock into a smaller number of shares without a
corresponding combination of the Preferred Stock, each Series Preferred Price in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this Section 4(e) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(f) Adjustment for Common Stock Dividends and Distributions. If the
Company at any time or from time to time after the Original Issue Date makes, or
fixes a
6.
<PAGE>
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, in each such event each Series Preferred Price that is then in effect
shall be decreased as of the time of such issuance or, in the event such record
date is fixed, as of the close of business on such record date, by multiplying
each Series Preferred Price then in effect by a fraction (i) the numerator of
which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date, and (ii) the denominator of which is the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution; provided,
however, that if such record date is fixed and such dividend is not fully paid
or if such distribution is not fully made on the date fixed therefor, the Series
Preferred Price shall be recomputed accordingly as of the close of business on
such record date and thereafter the Series Preferred Price shall be adjusted
pursuant to this Section 4(f) to reflect the actual payment of such dividend or
distribution.
(g) Adjustments for Other Dividends and Distributions. If the Company
at any time or from time to time after the Original Issue Date makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than shares of Common Stock, in each such event provision shall be made so
that the holders of the Series Preferred shall receive upon conversion thereof,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of other securities of the Company which they would have received had
their Series Preferred been converted into Common Stock on the date of such
event and had they thereafter, during the period from the date of such event to
and including the conversion date, retained such securities receivable by them
as aforesaid during such period, subject to all other adjustments called for
during such period under this Section 4 with respect to the rights of the
holders of the Series Preferred or with respect to such other securities by
their terms.
(h) Adjustment for Reclassification, Exchange and Substitution. If at
any time or from time to time after the Original Issue Date, the Common Stock
issuable upon the conversion of the Series Preferred is changed into the same or
a different number of shares of any class or classes of stock of the Company,
whether by recapitalization, reclassification or otherwise (other than an
Acquisition or Asset Transfer as defined in Section 3(c) or a subdivision or
combination of shares or stock dividend or a reorganization, merger,
consolidation or sale of assets provided for elsewhere in this Section 4), in
any such event each holder of Series Preferred shall have the right thereafter
to convert its Series Preferred into the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change by holders of the maximum number of shares of Common Stock into
which such shares of Series Preferred could have been converted immediately
prior to such recapitalization, reclassification or change, all subject to
further adjustment as provided herein or with respect to such other securities
or property by the terms thereof.
(i) Reorganizations, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time after the Original Issue Date, there is a
capital reorganization, merger, consolidation or sale of assets of the Common
Stock (other than an Acquisition or Asset Transfer as defined in Section 3(c) or
a recapitalization, subdivision, combination, reclassification, exchange or
substitution of shares provided for elsewhere in this Section 4), as a
7.
<PAGE>
part of such capital reorganization, merger, consolidation or sale of assets,
provision shall be made so that the holders of the Series Preferred shall
thereafter be entitled to receive upon conversion of the Series Preferred the
number of shares of stock or other securities or property to which a holder of
the number of shares of Common Stock deliverable upon conversion of such shares
of Series Preferred would have been entitled on such capital reorganization,
subject to adjustment in respect of such stock or securities by the terms
thereof. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 4 with respect to the rights of
the holders of Series Preferred after the capital reorganization to the end that
the provisions of this Section 4 (including adjustment of each Series Preferred
Price then in effect and the number of shares issuable upon conversion of the
Series Preferred) shall be applicable after that event and be as nearly
equivalent as practicable.
(j) Sale of Shares Below Series Preferred Price.
(i) If at any time or from time to time after the Original Issue
Date, the Company issues or sells, or is deemed by the express provisions of
this Section 4(j) to have issued or sold, Additional Shares of Common Stock (as
defined in Section 4(j)(iv) below) or Non-Convertible Securities (as defined in
Section 4(j)(iii) below), other than as a dividend or other distribution on any
class of stock as provided in Section 4(f) above, and other than a subdivision
or combination of shares of Common Stock as provided in Section 4(e) above, for
an Effective Price (as defined in Section 4(j)(iv) below) less than the then
effective Series Preferred Price for one or more series of Series Preferred,
then and in each such case each then existing Series Preferred Price that is
higher than the Effective Price shall be reduced, as of the opening of business
on the date of such issue or sale, to a price determined by multiplying such
Series Preferred Price by a fraction (i) the numerator of which shall be (A) the
number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale, plus (B) the number of shares of Common
Stock which the aggregate consideration received (as defined in Section
4(j)(ii)) by the Company for the total number of Additional Shares of Common
Stock or Non-Convertible Securities so issued would purchase at such Series
Preferred Price, and (ii) the denominator of which shall be the number of shares
of Common Stock deemed outstanding (as defined below) immediately prior to such
issue or sale plus the total number of Additional Shares of Common Stock or Non-
Convertible Securities so issued. For the purposes of the preceding sentence,
the number of shares of Common Stock deemed to be outstanding as of a given date
shall be the sum of (A) the number of shares of Common Stock actually
outstanding, (B) the number of shares of Common Stock into which the then
outstanding shares of Series Preferred could be converted if fully converted on
the day immediately preceding the given date, and (C) the number of shares of
Common Stock which could be obtained through the exercise or conversion of all
other rights, options and convertible securities on the day immediately
preceding the given date.
(ii) For the purpose of making any adjustment required under this
Section 4(j), the consideration received by the Company for any issue or sale of
securities shall (A) to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or
similar commissions, compensation or concessions paid or allowed by the Company
in connection with such issue or sale but without deduction of any expenses
payable by the Company, (B) to the extent it consists of property other than
cash, be computed at the fair value of that property as reasonably determined in
good
8.
<PAGE>
faith by the Board of Directors, and (C) if Additional Shares of Common Stock,
Non-Convertible Securities, Convertible Securities (as defined in Section
4(j)(iii)) or rights or options to purchase either Additional Shares of Common
Stock, Non-Convertible Securities or Convertible Securities are issued or sold
together with other stock or securities or other assets of the Company for a
consideration which covers both, be computed as the portion of the consideration
so received that may be reasonably determined in good faith by the Board of
Directors to be allocable to such Additional Shares of Common Stock, Non-
Convertible Securities, Convertible Securities or rights or options.
(iii) For the purpose of the adjustment required under this
Section 4(j), if the Company issues or sells (i) any rights or options for the
purchase of, or stock or other securities convertible into, Additional Shares of
Common Stock (such convertible stock or securities being herein referred to as
"Convertible Securities") or (ii) stock or other securities not convertible into
Additional Shares of Common Stock (such stock or securities being herein
referred to as "Non-Convertible Securities") and if the Effective Price of such
Additional Shares of Common Stock or Non-Convertible Securities is less than the
Series Preferred Price for one or more series of Series Preferred, in each case
the Company shall be deemed to have issued at the time of the issuance of such
rights or options, Convertible Securities or Non-Convertible Securities the
maximum number of Additional Shares of Common Stock issuable upon exercise or
conversion thereof and to have received as consideration for the issuance of
such shares an amount equal to the total amount of the consideration, if any,
received by the Company for the issuance of such rights or options, Convertible
Securities or Non-Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion thereof; provided that if in the
case of Convertible Securities the minimum amounts of such consideration cannot
be ascertained, but are a function of antidilution or similar protective
clauses, the Company shall be deemed to have received the minimum amounts of
consideration without reference to such clauses; provided further that if the
minimum amount of consideration payable to the Company upon the exercise or
conversion of rights, options or Convertible Securities is reduced over time or
on the occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is reduced; provided
further that if the minimum amount of consideration payable to the Company upon
the exercise or conversion of such rights, options or Convertible Securities is
subsequently increased, the Effective Price shall be again recalculated using
the increased minimum amount of consideration payable to the Company upon the
exercise or conversion of such rights, options or Convertible Securities. No
further adjustment of any Series Preferred Price, as adjusted upon the issuance
of such rights, options or Convertible Securities, shall be made as a result of
the actual issuance of Additional Shares of Common Stock on the exercise of any
such rights or options or the conversion of any such Convertible Securities. If
any such rights or options or the conversion privilege represented by any such
Convertible Securities shall expire without having been exercised, each Series
Preferred Price as adjusted upon the issuance of such rights, options or
Convertible Securities shall be readjusted to the Series Preferred Price which
would have been in effect had an adjustment been made on the basis that the only
Additional Shares of Common Stock so issued were the Additional Shares of Common
Stock, if any, actually issued or sold on
9.
<PAGE>
the exercise of such rights or options or rights of conversion of such
Convertible Securities, and such Additional Shares of Common Stock, if any, were
issued or sold for the consideration actually received by the Company upon such
exercise, plus the consideration, if any, actually received by the Company for
the granting of all such rights or options, whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by the
Company (other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) on the conversion of such Convertible Securities,
provided that such readjustment shall not apply to prior conversions of Series
Preferred.
(iv) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company or deemed to be issued pursuant to this
Section 4(j), whether or not subsequently reacquired or retired by the Company
other than (A) shares of Common Stock issued upon conversion of the Series
Preferred; (B) shares of Common Stock and/or options, warrants or other Common
Stock purchase rights, and the Common Stock issued pursuant to such options,
warrants or other rights (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like) after the Original Issue Date to
employees, officers or directors of, or consultants or advisors to the Company
pursuant to stock purchase or stock option plans or other arrangements that are
approved by the Board; (C) shares of Common Stock or Preferred Stock, or
securities convertible into or with rights to purchase Common Stock or Preferred
Stock, issued in connection with acquisition transactions, where such
transactions have been approved by the Board of Directors of the Company (D)
shares of Common Stock or Preferred Stock, or other securities convertible into
or with rights to purchase shares of Common Stock or Preferred Stock, issued to
financial and other institutions, lessors or vendors of the Company in
connection with the provision of credit to the Company; and (E) any shares of,
or securities convertible into, the Company's Common Stock or Preferred Stock
issued in connection with strategic transactions involving the Company and other
entities, including (i) joint ventures, manufacturing, marketing or distribution
arrangements or (ii) technology transfer or development arrangements; provided
that such strategic transactions, and the issuance of shares therein, have been
approved by the Company's Board of Directors. The "Effective Price" of
Additional Shares of Common Stock shall mean the quotient determined by dividing
the total number of Additional Shares of Common Stock issued or sold, or deemed
to have been issued or sold by the Company under this Section 4(j), into the
aggregate consideration received, or deemed to have been received by the Company
for such issue under this Section 4(j), for such Additional Shares of Common
Stock.
(k) Certificate of Adjustment. In each case of an adjustment or
readjustment of the Series Preferred Price for the number of shares of Common
Stock or other securities issuable upon conversion of the Series Preferred, if
the Series Preferred is then convertible pursuant to this Section 4, the
Company, at its expense, shall compute such adjustment or readjustment in
accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment, and shall mail such certificate, by first class
mail, postage prepaid, to each registered holder of Series Preferred at the
holder's address as shown in the Company's books. The certificate shall set
forth such adjustment or readjustment, showing in detail the facts upon which
such adjustment or readjustment is based, including a statement of (i) the
consideration received or deemed to be received by the Company for any
Additional
10.
<PAGE>
Shares of Common Stock issued or sold or deemed to have been issued or sold,
(ii) the Series Preferred Price at the time in effect for such series of Series
Preferred, (iii) the number of Additional Shares of Common Stock and (iv) the
type and amount, if any, of other property which at the time would be received
upon conversion of the Series Preferred.
(l) Notices of Record Date. Upon (i) any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or (ii) any Acquisition (as defined in Section 3(c)) or other
capital reorganization of the Company, any reclassification or recapitalization
of the capital stock of the Company, any merger or consolidation of the Company
with or into any other corporation, or any Asset Transfer (as defined in Section
3(c)), or any voluntary or involuntary dissolution, liquidation or winding up of
the Company, the Company shall mail to each holder of Series Preferred at least
twenty (20) days prior to the record date specified therein a notice specifying
(A) the date on which any such record is to be taken for the purpose of such
dividend or distribution and a description of such dividend or distribution, (B)
the date on which any such Acquisition, reorganization, reclassification,
transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or
winding up is expected to become effective, and (C) the date, if any, that is to
be fixed as to when the holders of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock (or other securities)
for securities or other property deliverable upon such Acquisition,
reorganization, reclassification, transfer, consolidation, merger, Asset
Transfer, dissolution, liquidation or winding up.
(m) Automatic Conversion.
(i) Each share of Series Preferred shall automatically be
converted into shares of Common Stock, based on the then-effective Series
Preferred Price for such series of Series Preferred, (A) at any time upon the
affirmative election of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares of the Series Preferred, or (B) immediately
upon the closing of a firmly underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock for the account of the Company in
which (i) the per share price is at least Ten Dollars and Forty-One Cents
($10.41) per share (as adjusted for stock splits, combinations and similar
events) and (ii) the gross cash proceeds to the Company (before underwriting
discounts, commissions and fees) are not less than $15,000,000. Upon such
automatic conversion, any declared and unpaid dividends shall be paid in
accordance with the provisions of Section 4(d).
(ii) Upon the occurrence of the event specified in paragraph (i)
above, the outstanding shares of Series Preferred shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Company or its transfer agent; provided, however, that the Company shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon such conversion unless the certificates evidencing such shares of Series
Preferred are either delivered to the Company or its transfer agent as provided
below, or the holder notifies the Company or its transfer agent that such
certificates have been lost, stolen or destroyed and executes an agreement
satisfactory to the Company to indemnify the Company from any loss
11.
<PAGE>
incurred by it in connection with such certificates. Upon the occurrence of such
automatic conversion of the Series Preferred, the holders of Series Preferred
shall surrender the certificates representing such shares at the office of the
Company or any transfer agent for the Series Preferred. Thereupon, there shall
be issued and delivered to such holder promptly at such office and in its name
as shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Common Stock into which the shares of
Series Preferred surrendered were convertible on the date on which such
automatic conversion occurred, and any declared and unpaid dividends shall be
paid in accordance with the provisions of Section 4(d).
(n) Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of Series Preferred. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Series Preferred by a holder thereof shall be aggregated for purposes of
determining whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion would
result in the issuance of any fractional share, the Company shall, in lieu of
issuing any fractional share, pay cash equal to the product of such fraction
multiplied by the Common Stock's fair market value (as determined by the Board
of Directors) on the date of conversion.
(o) Reservation of Stock Issuable Upon Conversion. The Company shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series Preferred, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series Preferred. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Series Preferred, the
Company will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purpose.
(p) Notices. Any notice required by the provisions of this Section 4
shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All notices shall be
addressed to each holder of record at the address of such holder appearing on
the books of the Company.
(q) Payment of Taxes. The Company will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Series Preferred, excluding any tax or other charge imposed in
connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Series Preferred
so converted were registered.
(r) No Dilution or Impairment. Without the consent of the holders of
then outstanding Series Preferred as required under Section 2(b), the Company
shall not amend its Amended and Restated Certificate of Incorporation or
participate in any
12.
<PAGE>
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or take any other voluntary action, for the purpose of
avoiding or seeking to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company, but shall at all times in
good faith assist in carrying out all such action as may be reasonably necessary
or appropriate in order to protect the conversion rights of the holders of the
Series Preferred against dilution or other impairment.
5. No Preemptive Rights. Stockholders shall have no preemptive
rights except as granted by the Company pursuant to written agreements.
IV.
A. A director of the corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (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) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article 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.
B. Any repeal or modification of this Article IV shall only be
prospective and shall not effect the rights under this Article IV in effect at
the time of the alleged occurrence of any action or omission to act giving rise
to liability.
V.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. Subject to Section 2(b),
the number of directors which shall constitute the whole Board of Directors
shall be fixed by the Board of Directors in the manner provided in the Bylaws.
B. Subject to Section 2(b), the Board of Directors may from time to time
make, amend, supplement or repeal the Bylaws; provided, however, that the
stockholders may change or repeal any Bylaw adopted by the Board of Directors by
the affirmative vote of the holders of a majority of the voting power of all of
the then outstanding shares of the capital stock of the Corporation; and,
provided further, that no amendment or supplement to the Bylaws adopted by the
Board of Directors shall vary or conflict with any amendment or supplement thus
adopted by the stockholders.
13.
<PAGE>
C. The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
* * * *
4. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of this Corporation.
5. This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Sections 228 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors and the
stockholders of the Corporation.
14.
<PAGE>
In Witness Whereof, TiVo Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by the President and the Secretary
this 9th day of August, 1999.
TiVo Inc.
/s/ Michael Ramsay
By: __________________________________
Michael Ramsay, President
Attest:
/s/ Alan C. Mendelson
By: __________________________________
Alan C. Mendelson, Secretary
Signature Page to TiVo Inc.
Amended and Restated Certificate of Incorporation