Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA CORP.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware") hereby
certifies that:
FIRST: The name of this Corporation (hereinafter called the "Corporation")
is Radio Unica Corp.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle (zip
code 19801); and the name of the registered agent of the Corporation in the
State of Delaware at such address is The Corporation Trust Company.
THIRD: The nature of the business and of the purposes to be conducted and
promoted by the Corporation are to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: (A) The total number of shares of stock which this Corporation
shall have authority to issue is five hundred fifty thousand (550,000) shares,
of which four hundred fifty thousand (450,000) shares of the par value of $.01
per share shall be Preferred Stock and one hundred thousand (100,000) shares of
the par value of $.01 per share shall be Common Stock. The holders of shares of
Common Stock shall have one vote per share.
(B) The Board of Directors of this Corporation is hereby
expressly granted the authority by resolution or resolutions to establish and
issue the Preferred Stock in one or more series with such voting powers , full
or limited, or no voting powers, and with such designations, preferences and
relative, participating, optional or other special rights and with such
qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions providing for the establishment and
issuance thereof adopted by the Board of Directors.
FIFTH: The name and mailing address of the incorporator are as follows:
Martin H. Neidell, c/o Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York,
New York 10038.
SIXTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders, of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders, of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
SEVENTH: The original By-Laws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter, or repeal the By-Laws, and
to adopt any new By-Law, shall be vested in the Board of Directors.
EIGHTH: To the fullest extent that the General Corporation Law of the
State of Delaware, as it exists on the date hereof or as it may hereafter be
amended, permits the limitation or elimination of the liability of directors, no
director of this Corporation shall be personally liable to this Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Notwithstanding the foregoing, a director shall be liable to the
extent provided by applicable law (1) for any breach of the directors' duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the General Corporation Law of the State of
Delaware, or (4) for any transaction from which the director derived any
improper personal benefit. Neither the amendment or repeal of this Article, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article shall adversely affect any right or protection of a director
of the Corporation existing at the time of such amendment or repeal.
NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, or by any successor thereto, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section. The Corporation shall advance expenses to the
fullest extent permitted by said section. Such right to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer,
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employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. The indemnification and advancement of
expenses provided for herein shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
Executed at New York, New York on August 1, 1997.
/s/ Martin H. Neidell
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Martin H. Neidell, Incorporator
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CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS OF SERIES A
PREFERRED STOCK AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF
OF
RADIO UNICA CORP.
1. DESIGNATION. The designation of the series of Preferred Stock created
hereby is Series A Preferred Stock and the number of shares constituting such
series is 450,000 (the "Series A Preferred Stock").
2. RANK. The Series A Preferred Stock shall, with respect to dividend
rights, rights on redemption and rights on liquidation, winding up and
dissolution, rank prior to any other equity securities of the Corporation,
including all classes of Common Stock and any other series of Preferred Stock
established by the Board of Directors (all of such equity securities of the
Corporation to which the Series A Preferred Stock ranks prior are collectively
referred to herein as the "Junior Stock").
3. DIVIDENDS.
(i) The holders of Series A Preferred Stock shall be entitled to
receive in preference to the holders of any Junior Stock, when, as and if
declared by the Board of Directors, out of funds legally available for the
payment of dividends, cumulative dividends at the rate per annum of 10% of the
Accrued Liquidation Preference (as hereinafter defined) from time to time in
effect. Such dividends shall begin to accrue from and after the date of
issuance and shall be payable in equal semi-annual installments on a cumulative
basis, compounded quarterly, on the lst day of January and July in each year,
with the first such payment to be made January 1, 1998;
provided, however, that effective January 1, 2005 and on each January 1
thereafter the dividends on the Series A Preferred Stock shall increase at the
rate per annum of 2% of the Accrued Liquidation Preference, but in no event
shall such dividend be more than the rate per annum of 20% of the Accrued
Liquidation Preference.
(ii) All dividends paid with respect to shares of the Series A
Preferred Stock pursuant to paragraph 3(i) hereof shall be paid pro rata (both
as to the amount of declaration and form of payment) to the holders entitled
thereto. Any dividend not paid shall be fully cumulative and shall accrue and
be compounded quarterly (whether or not declared), at the rate provided above.
(iii) So long as any shares of the Series A Preferred Stock are
outstanding, the Corporation shall not declare, pay or set apart for payment any
dividend on any of the Junior Stock or make any payment on account of, or set
apart for payment money for a sinking or other similar fund for, the purchase,
redemption or other retirement of, any of the Junior Stock or any warrants,
rights, calls or options exercisable for or convertible into any of the Junior
Stock, or make any distribution in respect thereof, either directly or
indirectly, and whether in cash, obligations or shares of the Corporation or
other property (other than distributions or dividends in Junior Stock to the
holders of Junior Stock or repurchases of stock from former employees of the
Corporation), and shall not permit any corporation or other entity directly or
indirectly controlled by the Corporation to purchase or redeem any of the Junior
Stock or any warrants, rights, calls or options exercisable for or convertible
into any of the Junior Stock, unless prior to or concurrently with such
declaration, payment, setting apart for payment, purchase, redemption and/or
distribution, as the case may be, all accrued and unpaid dividends on shares of
the Series
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A Preferred Stock not paid on the dates provided for in paragraph 3(i) hereof
shall have been or are paid.
(iv) Each fractional share of Series A Preferred Stock outstanding
shall be entitled to a ratably proportionate amount of all dividends accruing
with respect to each outstanding share of Series A Preferred Stock pursuant to
paragraph 3(i) hereof, and all such dividends with respect to such outstanding
fractional shares shall be fully cumulative and accrue (whether or not
declared), with interest at the rate set forth above, and shall be payable in
the same manner and at such times as provided for in paragraph 3(i) hereof with
respect to dividends on each outstanding share of Series A Preferred Stock.
4. LIQUIDATION PREFERENCE.
(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of
shares of Series A Preferred Stock then outstanding shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
stockholders an amount in cash equal to $100.00 for each share outstanding, plus
an amount in cash equal to all accrued but unpaid dividends thereon to the date
fixed for liquidation, dissolution or winding up (the "Accrued Liquidation
Preference") before any payment shall be made or any assets distributed to the
holders of any of the Junior Stock. Except as provided in the preceding
sentence, holders of Series A Preferred Stock shall not be entitled to any
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation. If the assets of the Corporation are not sufficient
to pay in full the Accrued Liquidation Preference to the holders of outstanding
shares of Series A Preferred Stock, then the holders of all such shares shall
share ratably in such distribution of assets in accordance with the
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amount which would be payable on such distribution if the amounts to which the
holders of outstanding shares of Series A Preferred Stock are entitled were paid
in full.
(ii) For the purposes of this paragraph 4, the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property or assets (including
stock of a subsidiary) of the Corporation or the consolidation or merger of the
Corporation with one or more other corporations shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary.
(iii) The Accrued Liquidation Preference with respect to each
outstanding fractional share of Series A Preferred Stock shall be equal to a
ratably proportionate amount of the Accrued Liquidation Preference with respect
to each outstanding share of Series A Preferred Stock.
REDEMPTION AT THE OPTION OF THE CORPORATION.
(i) The Series A Preferred Stock shall be redeemable, at the
option of the Corporation, in whole or in part, at any time or from time to
time, at a redemption price of $100.00 per share, together with accrued and
unpaid dividends thereon to the date fixed for redemption, to the extent the
Corporation shall have funds legally available for such payment.
(ii) Shares of Series A Preferred Stock which have been issued and
reacquired in any manner, including shares purchased or redeemed, shall (upon
compliance with any applicable provisions of the laws of the State of Delaware)
have the status of authorized and unissued shares of the class of Preferred
Stock undesignated as to series and may be redesignated and reissued as part of
any series of the Preferred Stock; provided, however, that no such issued and
reacquired shares of Series A Preferred Stock shall be reissued or sold as
Series A Preferred Stock unless reissued as a stock dividend on shares of Series
A Preferred Stock.
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(iii) Notwithstanding the foregoing provisions of this paragraph 5,
unless the full cumulative dividends on all outstanding shares of Series A
Preferred Stock shall have been paid or contemporaneously are declared and paid
for all past dividend periods, none of the shares of Series A Preferred Stock
shall be redeemed unless all outstanding shares of Series A Preferred Stock are
simultaneously redeemed.
6. PROCEDURE FOR REDEMPTION.
6. In the event that fewer than all the outstanding shares of
Series A Preferred Stock are to be redeemed pursuant to paragraph 5, the number
of shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be redeemed on a pro rata basis.
(ii) In the event the Corporation shall redeem shares of Series A
Preferred Stock pursuant to paragraph 5, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the redemption date, to each holder of record of the
shares to be redeemed at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (a) the redemption
date; (b) the number of shares of Series A Preferred Stock to be redeemed and,
if less than all the shares held by such holder are to be redeemed from such
holder, the number of shares to be redeemed from such holder; (c) the redemption
price; (d) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (e) that dividends on the
shares to be redeemed will cease to accrue on such redemption date, unless the
Corporation shall fail to pay the redemption price as set forth herein.
(iii) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the
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redemption price of the shares called for redemption) dividends on the shares of
Series A Preferred Stock so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding and shall have the
status of authorized but unissued shares of Preferred Stock, unclassified as to
series, and shall not be reissued as shares of Series A Preferred Stock (unless
reissued as a stock dividend on Series A Preferred Stock), and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the redemption price and any accrued and unpaid dividends)
shall cease. Upon surrender in accordance with said notice of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption price
aforesaid. In the event fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
7. REDEMPTION AT THE OPTION OF THE HOLDERS. (a) The holders of a
majority of the outstanding Series A Preferred Stock may elect to cause the
Corporation to redeem the outstanding Series A Preferred Stock upon the
occurrence of any of the following events:
(i) A consolidation or merger of the Corporation with or into
another entity where the holders of the capital stock of the Corporation
immediately prior to such merger or consolidation hold 50% or less of the
outstanding capital stock of the entity surviving such merger or consolidation
immediately after such transaction (based on voting power), or the sale of all
or substantially all of the Corporation's assets;
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(ii) The Corporation's sale of Common Stock in a bona fide firm
commitment underwriting pursuant to a registration statement filed with, and
declared effective by, the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended; or
(iii) August , 2007.
(b) The Corporation shall give the holders of Series A Preferred Stock at
least 30 days' notice prior to the scheduled occurrence of any of the events
specified in clauses (i) or (ii) (collectively, the "Liquidity Events"). Notice
of election to redeem shall be given to the holders of Series A Preferred Stock
at least five days prior to the scheduled Liquidity Events or by June 25, 2007
with respect to clause (iii). If the Liquidity Event arises pursuant to
clause (ii) and if the underwriters require that Series A Preferred Stock be
exchanged for Common Stock of the Corporation and not redeemed, then each share
of Series A Preferred Stock valued at the Accrued Liquidation Preference shall
be exchanged for a number of shares of Common Stock equal to the Accrued
Liquidation Preference divided by the midpoint of the proposed public offering
price range of a share of Common Stock less the underwriter's discount.
8. VOTING RIGHTS.
(i) Except as otherwise required by law, the holders of record of
shares of Series A Preferred Stock shall have the right to vote, together with
the holders of outstanding shares of Common Stock and not by classes, on all
matters on which holders of Common Stock shall have the right to vote. The
holders of Series A Preferred Stock shall have the right to cast 10 votes for
each share of Series A Preferred Stock.
(ii) So long as any shares of Series A Preferred Stock are
outstanding, the Corporation will not without the affirmative vote or consent of
the holders of a majority of the issued and outstanding Series A Preferred Stock
voting as a separate class create any class or
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series of shares ranking on a parity with or prior to the Series A Preferred
Stock either as to dividends or redemption or upon liquidation, or amend, alter
or repeal (whether by merger, consolidation or otherwise) the Corporation's
certificate of incorporation to adversely affect the voting powers, rights or
preferences of the Series A Preferred Stock.
(iii) The Corporation will not without the affirmative vote or
consent of the holders of a majority of the issued and outstanding Series A
Preferred Stock amend the terms or any provisions of the Series A Preferred
Stock.
IN WITNESS WHEREOF, said corporation has caused this Certificate to be
signed by Joaquin Blaya, its Chief Executive Officer and attested by Steve
Dawson, its Secretary, this 6th day of August, 1997.
RADIO UNICA CORP.
By: /s/ Joaquin Blaya
--------------------------------
Name: Joaquin Blaya
Title: Chief Executive Officer
Attest:
/s/ Steve Dawson
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Name: Steve Dawson
Title: Secretary
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CERTIFICATE OF MERGER
OF
RADIO UNICA ACQUISITION CO.
WITH AND INTO
RADIO UNICA CORP.
PURSUANT TO SECTION 251 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
RADIO UNICA CORP., a Delaware corporation hereby certifies as follows:
FIRST: The name of the constituent corporations are "Radio Unica Corp.,"
and "Radio Unica Acquisition Co." Each constituent corporation is incorporated
under the laws of the State of Delaware.
SECOND: An Agreement of Merger dated June 30, 1998 has been approved,
adopted, certified, executed and acknowledged by each of the constituent
corporations in accordance with Section 251 of the General Corporation Law of
the State of Delaware.
THIRD: The name of the surviving corporation (the "Surviving Corporation")
is Radio Unica Corp.
FOURTH: The Certificate of Incorporation of Radio Unica Corp. in effect at
the date of the merger shall be the certificate of incorporation of the
Surviving Corporation except that Article FOURTH of the Certificate of
Incorporation shall be amended in its entirety to read as follows:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is one thousand (1,000)
shares, all of which are of a par value of one cent ($.01) each, and
all of which are of one class and are designated as Common Stock."
As so amended, the Certificate of Incorporation shall continue in full
force and effect until further amended in the manner prescribed by law.
FIFTH: An executed copy of the Agreement of Merger is on file at the
principal place of business of the Surviving Corporation located at 8400 N.W.
52nd Street, Suite 101, Miami, Florida 33166, and a copy of the Agreement of
Merger will be furnished by the Surviving Corporation, on request and without
cost, to any stockholder of any constituent corporation.
IN WITNESS WHEREOF, Radio Unica Corp. has caused this certificate of merger
to be executed in its corporate name by its Chief Executive Officer and to be
attested by its Secretary on this 30th day of June, 1998.
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
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Name: Joaquin F. Blaya
Title: Chief Executive Officer
Attest:
By: /s/ Steven E. Dawson
--------------------------------
Secretary
Steven E. Dawson