Amended And Restated Certificate Of Incorporation

EXHIBIT 3.1


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 Seventy-Three Million Four Hundred Fifteen Thousand (73,415,000) shares, Fifty Million (50,000,000) shares of which shall be Common Stock (the "Common Stock") and Twenty-Three Million Four Hundred Fifteen Thousand (23,415,000) 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).


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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," and Three Million Three Hundred Fifteen Thousand (3,315,000) of the authorized shares of Preferred Stock are hereby designated "Series I 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, 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) and the Original Issue Price of the Series I 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.


(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


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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);


(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;


(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;


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(v) Any redemption, repurchase, payment of dividends or other distributions with respect to Junior Stock (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 remove from office such director and to fill any vacancy caused by the resignation, death or removal of such director; and (vii) 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.


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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"):


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