EXHIBIT 3.5
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CERTIFICATE OF INCORPORATION
OF
MUZAK, INC.
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THE UNDERSIGNED, being a natural person, for the purpose of organizing
a corporation under the General Corporation law of the State of Delaware, hereby
certifies that:
ARTICLE I
NAME
The name of the corporation is "Muzak, Inc." (the "Corporation").
ARTICLE II
OFFICE AND REGISTERED AGENT, INCORPORATOR
2.1. Office and Registered Agent. The address of the registered
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office of the Corporation in the State of Delaware is Corporation Trust Center,
1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware,
19801. The name of its registered agent at such address is The Corporation Trust
Company.
2.2. Incorporator. The name and mailing address of the incorporator
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are David A. Jacobs, c/o Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York,
New York 10153.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in, carry on and conduct
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware, as from time to time amended
(the "DGCL").
ARTICLE IV
CAPITAL STOCK
4.1. Authorized Capital Stock. The total number of shares of stock
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that the Corporation shall have authority to issue is forty-million (40,000,000)
shares, thirty-million (30,000,000) of which shares shall be Common Stock having
a par value of $0.01 per share and ten-million (10,000,000) of which shares
shall be Preferred Stock having a par value of $0.01 per share. Except as
otherwise provided by law, the shares of stock of the Corporation, regardless of
class, may be issued by the Corporation from time to time in such amounts, for
such considerations and for such corporate purposes as the Board of Directors
may from time to time determine.
Shares of Preferred Stock may be issued from time to time in one or
more series of any number of shares as may be determined from time to time by
the Board of Directors, provided that the aggregate number of shares issued and
not cancelled of any and all such series shall not exceed the total number of
shares of Preferred Stock authorized by this Certification of Incorporation.
Each series of Preferred Stock shall be distinctly designated. Except in
respect of the particulars fixed for series by the Board of Directors, provided
that the aggregate number of shares issued and not cancelled of any and all such
series shall not exceed the total number of shares of Preferred Stock authorized
by this Certificate of Incorporation. Each series of Preferred Stock shall be
distinctly designed. Except in respect of the particulars fixed for series by
the Board of Directors as permitted hereby, all shares shall be alike in every
particular, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall be cumulative. The
voting powers, if any, of each such series and the preferences and relative,
participating, optional and other special rights of each such series and the
qualifications, limitations and restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and the Board of
Directors is hereby expressly granted authority to fix, in the resolution or
resolutions providing for the issue of a particular series of Preferred Stock,
the voting powers, if any, of each such series and the preferences and relative,
participating, optional and other special rights of each such series and the
qualifications, limitations and restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and the Board of
Directors is hereby expressly granted authority to fix, in the resolution or
resolutions providing for the issue of a particular series of Preferred Stock,
the voting powers, if any, of each such special series and the designations,
preferences and relative, participating, optional and other special rights of
each such series and the qualifications, limitation and restrictions thereof to
the full extent now or hereafter permitted by this Certificate of Incorporation
and the laws of the State of Delaware.
ARTICLE V
LIABILITY OF DIRECTORS
5.1 Limitation on Liability. (a) No director of the Corporation
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shall be personally liable to the Corporation or its stockholders for monetary
damages for 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 DGCL; or (iv) for any transaction from which the director derived an
improper personal benefit. If the DGCL is amended after the filing of this
Certificate of Incorporation to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
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(b) The Corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to, or testifies in, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, by reason of the fact that
such person is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding to
the full extent permitted by law, and the Corporation may adopt Bylaws or enter
into agreements with any such person for the purpose of providing for such
indemnification.
5.2. Amendments. Any repeal or modification of Section 5.1 hereof by
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the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE VI
STOCKHOLDERS
6.1 Action by Stockholders. Any action required or permitted to be
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taken by the holders of the issued and outstanding stock of the Corporation may
be effected at an annual or special meeting of stockholders duly called and held
in accordance with law and this Certificate of Incorporation and the Bylaws, or
without a meeting, by written consent, setting forth the action so taken, signed
by the holders of outstanding shares entitled to vote thereon having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a stockholders' meeting at which all shares entitled to vote
thereon were present.
6.2 Special Meetings of Stockholders. Except as otherwise required
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by law, special meetings of stockholders may be called by the Chief Executive
Officer, the Board of Directors pursuant to a resolution adopted by the
affirmative vote of a majority of the entire Board, or the stockholders by a
majority vote of the voting power of all shares of capital stock then entitled
to vote generally in the election of directors, voting as a single class. The
use of the phrase "entire Board" herein refers to the total number of directors
which the Corporation would have if there were no vacancies.
ARTICLE VII
BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws by the affirmative vote of at least a majority of the members then in
office. The stockholders may adopt, amend or repeal the Bylaws upon the
affirmative vote of a majority of the voting power of all shares of capital
stock of the Corporation then entitled to vote generally in the election of
directors, voting as a single class (notwithstanding the fact that approval by a
lesser percentage may be permitted by the DGCL).
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ARTICLE VIII
AMENDMENT OF
CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation in any manner permitted by law and all rights and powers conferred
upon stockholders, directors and officers herein am granted subject to this
reservation. In addition to any vote otherwise required by law, any such
amendment, alteration, change or repeal shall require approval of either (a) the
Board of Directors by the affirmative vote of a majority of the members then in
office or (b) the holders of a majority of the voting power of all the shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
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IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Incorporation on this 8th day of May, 1996.
MUZAK, INC.
/s/ David A. Jacobs
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David A. Jacobs
Sole Incorporator
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