<PAGE>
CERTIFICATE OF INCORPORATION
EXHIBIT 3.1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "TCI MUSIC, INC.", FILED IN THIS OFFICE ON THE TWENTY-FIRST
DAY OF JANUARY, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ EDWARD J. FREEL
--------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8294760
DATE: 01-22-97
<PAGE>
CERTIFICATE OF INCORPORATION
OF
TCI MUSIC, INC.
________________________
ARTICLE I
NAME
The name of the corporation is TCI Music, Inc. (the "Corporation").
ARTICLE II
REGISTERED AGENT AND OFFICE
The location of the registered office of the Corporation in
the State of Delaware is the office of CSC United States Corporation Company,
1013 Centre Road, New Castle County, Wilmington, Delaware 19805. The name of
the registered agent at such address is Corporation Service Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE IV
AUTHORIZED STOCK
The total number of shares of capital stock which the
Corporation shall have authority to issue is five hundred million (500,000,000)
shares, of which four hundred ninety five million (495,000,000) shares shall be
common stock ("Common Stock") and five million (5,000,000) shares shall be
preferred stock with a par value of $.01 per share ("Preferred Stock"). The
Common Stock shall be a single class designated as Common Stock with a par
value of $.01 per share and shall be issuable in series as provided in Section
A of this Article IV. A description of the Common Stock and the Preferred
Stock of the Corporation, and the relative rights, preferences and limitations
thereof, or the method of fixing and establishing the same, are as hereinafter
in this Article IV set forth:
SECTION A
SERIES A COMMON STOCK AND SERIES B COMMON STOCK
Two hundred ninety five million (295,000,000) shares of Common
Stock shall be of a series designated as Series A Common Stock (the "Series A
Common Stock") and two hundred million (200,000,000) shares of Common Stock
shall be of a series designated as Series B Common Stock (the "Series B Common
Stock"). Each share of the Series A Common Stock and each share of the Series
B Common Stock shall, except as otherwise provided in this Section A, be
identical in all respects and shall have equal rights and privileges.
1. Voting Rights.
Holders of Series A Common Stock shall be entitled to
one vote for each share of such stock held, and holders of Series B Common
Stock shall be entitled to ten votes for each share of such stock held, on all
matters presented to such stockholders. Except as may otherwise be required by
the laws of the State of Delaware or, with respect to any series of Preferred
Stock, in any resolution or resolutions providing for the establishment of such
series pursuant to authority vested in the Board of Directors by this
Certificate, the holders of shares of Series A Common Stock and the holders of
shares of Series B Common Stock and the holders of shares of each series
Preferred Stock entitled to vote thereon, if any, shall vote as one class with
respect to the election of directors and with respect to all other matters to
be voted on by stockholders of the Corporation (including, without limitation,
any proposed amendment to this Certificate of Incorporation (as it may from
time to time hereafter be amended or restated, this "Certificate") that would
increase the number of authorized shares of Series A Common Stock, of Series B
Common Stock or of any other class or series of stock or decrease the number of
authorized shares of any such class or series of stock (but not below the
number of shares thereof then outstanding)), and no separate vote or consent of
the holders of shares of Series A Common Stock, the holders of shares of Series
B Common Stock or the holders of shares of any such series of Preferred Stock
shall be required for the approval of any such matter.
2. Conversion Rights.
Each share of Series B Common Stock shall be
convertible, at the option of the holder thereof, into one share of Series A
Common Stock. Any such conversion may be effected by any holder of Series B
Common Stock by surrendering such holder's certificate or certificates for the
Series B Common Stock to be converted, duly endorsed, at the office of the
Corporation or any transfer agent for the Series B Common Stock, together with
a written notice to the Corporation at such office that such holder elects to
convert all or a specified number of shares of Series B Common
- 2 -
<PAGE>
Stock represented by such certificate and stating the name or names in which
such holder desires the certificate or certificates for Series A Common Stock
to be issued. If so required by the Corporation, any certificate for shares
surrendered for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Corporation, duly executed by the holder of such
shares or the duly authorized representative of such holder. Promptly
thereafter, the Corporation shall issue and deliver to such holder or such
holder's nominee or nominees, a certificate or certificates for the number of
shares of Series A Common Stock to which such holder shall be entitled as
herein provided. Such conversion shall be deemed to have been made at the
close of business on the date of receipt by the Corporation or any such
transfer agent of the certificate or certificates, notice and, if required,
instruments of transfer referred to above, and the person or persons entitled
to receive the Series A Common Stock issuable on such conversion shall be
treated for all purposes as the record holder or holders of such Series A
Common Stock on that date. A number of shares of Series A Common Stock equal
to the number of shares of Series B Common Stock outstanding from time to time
shall be set aside and reserved for issuance upon conversion of shares of
Series B Common Stock. Shares of Series B Common Stock that have been
converted hereunder shall become treasury shares that may be issued or retired
by resolution of the Board of Directors. Shares of Series A Common Stock shall
not be convertible into shares of Series B Common Stock.
3. Dividends. Subject to paragraph 4 of this Section A,
whenever a dividend is paid to the holders of Series A Common Stock, the
Corporation also shall pay to the holders of Series B Common Stock a dividend
per share equal to the dividend per share paid to the holders of the Series A
Common Stock, and whenever a dividend is paid to the holders of Series B Common
Stock, the Corporation also shall pay to the holders of Series A Common Stock a
dividend per share equal to the dividend per share paid to the holders of the
Series B Common Stock. Dividends shall be payable only as and when declared by
the Board of Directors of the Corporation out of assets of the Corporation
legally available therefor.
4. Share Distributions. If at any time a distribution
paid in Series A Common Stock or Series B Common Stock or any other securities
of the Corporation or any other corporation, partnership, limited liability
company, trust or other legal entity ("Person") (hereinafter sometimes called a
"share distribution") is to be made with respect to the Series A Common Stock
or Series B Common Stock, such share distribution may be declared and paid only
as follows:
(a) a share distribution consisting of shares of
Series A Common Stock (or Convertible Securities that are convertible into,
exercisable or exchangeable for, or evidence the right to purchase any shares
of Series A Common Stock) to holders of Series A Common Stock and Series B
Common Stock, on an equal per share basis; or consisting of shares of Series B
Common Stock (or Convertible Securities that are convertible into, exercisable
or exchangeable for, or evidence the right to purchase any shares of Series B
Common Stock) to holders of Series A Common Stock and Series B Common Stock, on
an equal per share basis; or consisting of shares of Series A Common Stock (or
Convertible Securities that are convertible into, exercisable or exchangeable
for, or evidence the right to purchase any shares of Series A Common Stock) to
holders of Series A Common Stock and, on an equal per share basis, shares of
Series B Common Stock (or
- 3 -
<PAGE>
Convertible Securities that are convertible into, exercisable or exchangeable
for, or evidence the right to purchase any shares of Series B Common Stock) to
holders of Series B Common Stock; and
(b) a share distribution consisting of any class
or series of securities of the Corporation or any other Person other than
Series A Common Stock or Series B Common Stock (or other Convertible Securities
that are convertible into, exercisable or exchangeable for, or evidence the
right to purchase any shares of Series A Common Stock or Series B Common Stock)
either on the basis of a distribution of identical securities, on an equal per
share basis, to holders of Series A Common Stock and Series B Common Stock or
on the basis of a distribution of one class or series of securities to holders
of Series A Common Stock and another class or series of securities to holders
of Series B Common Stock, provided that the securities so distributed (and, if
applicable, the securities into which the distributed securities are
convertible, or for which they are exercisable or exchangeable, or which the
distributed securities evidence the right to purchase) do not differ in any
respect other than their relative voting rights and related differences in
designation, conversion and share distribution provisions with holders of
shares of Series B Common Stock receiving the class or series having the higher
relative voting rights (without regard to whether such rights differ to a
greater or lesser extent than the corresponding differences in voting rights
and related differences in designation, conversion and share distribution
provisions between the Series A Common Stock and the Series B Common Stock)
provided that if the securities so distributed constitute capital stock of a
Subsidiary of the Corporation, such rights shall not differ to a greater extent
than the corresponding differences in voting rights, designation, conversion
and share distribution provisions between the Series A Common Stock and the
Series B Common Stock, and provided in each case that such distribution is
otherwise made on an equal per share basis.
As used herein, the term "Convertible Securities"
means any securities of the Corporation (other than any series of Common Stock)
that are convertible into, exchangeable for or evidence to right to purchase
any shares of any series of Common Stock, whether upon conversion, exercise,
exchange, pursuant to anti-dilution provisions of such securities or otherwise.
As used herein, the term "Subsidiary" means, when used with respect to any
Person, (i) a corporation in which such Person and/or one or more Subsidiaries
of such Person, directly or indirectly, owns capital stock having a majority of
the voting power of such corporation's capital stock to elect directors under
ordinary circumstances, and (ii) any other Person (other than a corporation) in
which such Person and/or one or more Subsidiaries of such Person, directly or
indirectly, has (x) a majority ownership interest or (y) the power to elect or
direct the election of a majority of the members of the governing body of such
first-named Person.
The Corporation shall not reclassify, subdivide or
combine the Series A Common Stock without reclassifying, subdividing or
combining the Series B Common Stock, on an equal per share basis, and the
Corporation shall not reclassify, subdivide or combine the Series B Common
Stock without reclassifying, subdividing or combining the Series A Common
Stock, on an equal per share basis.
- 4 -
<PAGE>
5. Liquidation and Dissolution. In the event of a
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and
liabilities of the Corporation and subject to the prior payment in full of the
preferential amounts to which any series of Preferred Stock is entitled, the
holders of Series A Common Stock and the holders of Series B Common Stock shall
share equally, on a share for share basis, in the assets of the Corporation
remaining for distribution to its common stockholders. Neither the
consolidation or merger of the Corporation with or into any other Person or
Persons nor the sale, transfer or lease of all or substantially all of the
assets of the Corporation shall itself be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 5.
SECTION B
PREFERRED STOCK
The Preferred Stock may be issued, from time to time, in one
or more series, with such powers, designations, preferences and relative,
participating, optional or other rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in a resolution or
resolutions providing for the issue of such series adopted by the Board of
Directors (a "Preferred Stock Designation"). The Board of Directors, in such
Preferred Stock Designation (a copy of which shall be filed and recorded as
required by law), is also expressly authorized to fix the rights, powers and
preferences with respect to each series, including without limitation the
following:
(i) the distinctive serial designations and the
division of such shares into series and the number of
shares of a particular series, which may be increased
or decreased, but not below the number of shares
thereof then outstanding, by a certificate made,
signed, filed and recorded as required by law;
(ii) the dividend rate or amounts, if any, for the
particular series, the date or dates from which
dividends on all shares of such series shall be
cumulative, if dividends on stock of the particular
series shall be cumulative and the relative rights of
priority, if any, or participation, if any, with
respect to payment of dividends on shares of that
series;
(iii) the rights of the shares of each series in
the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of
shares of each series;
(iv) the right, if any, of the holders of a
particular series to convert or exchange such stock
into or for other classes or series of a class of
stock or indebtedness of the Corporation, and the
terms and conditions of such conversion or exchange,
including provision for the adjustment of the
- 5 -
<PAGE>
conversion or exchange rate in such events as the
Board of Directors shall determine;
(v) the voting rights, if any, of the holders of
a particular series; and
(vi) the terms and conditions, if any, for the
Corporation to purchase or redeem shares of a
particular series.
All shares of any one series of the Preferred Stock shall be
alike in every particular. Except to the extent otherwise provided in the
resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of shares of such series shall have no voting rights except
as may be required by the laws of the State of Delaware. Further, unless
otherwise expressly provided in the Preferred Stock Designation for a series of
Preferred Stock, no consent or vote of the holders of shares of Preferred Stock
or any series thereof shall be required for any amendment to this Certificate
that would increase the number of authorized shares of Preferred Stock or the
number of authorized shares of any series thereof or decrease the number of
authorized shares of Preferred Stock or the number of authorized shares of any
series thereof (but not below the number of authorized shares of Preferred
Stock or such series, as the case may be, then outstanding).
Except as may be provided by the Board of Directors in a
Preferred Stock Designation or by law, shares of any series of Preferred Stock
that have been redeemed (whether through the operation of a sinking fund or
otherwise) or purchased by the Corporation, or which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock of any
other class or classes shall have the status of authorized and unissued shares
of Preferred Stock and may be reissued as a part of the series of which they
were originally a part or may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors or
as part of any other series of Preferred Stock.
SECTION C
UNCLAIMED DIVIDENDS
Any and all right, title, interest and claim in or to any
dividends declared by the Corporation, whether in cash, stock or otherwise,
which are unclaimed for a period of four years after the close of business on
the payment date, shall be and be deemed extinguished and abandoned; and such
unclaimed dividends in the possession of the Corporation, its transfer agent or
other agents or depositories, shall at such time become the absolute property
of the Corporation, free and clear of any and all claims of any Persons
whatsoever.
- 6 -
<PAGE>
ARTICLE V
DIRECTORS
SECTION A
NUMBER OF DIRECTORS
The governing body of the Corporation shall be a Board of
Directors. Subject to any rights of the holders of any series of Preferred
Stock to elect additional directors, the number of directors shall not be less
than three and the exact number of directors shall be fixed by the Board of
Directors by resolution. Election of directors need not be by written ballot.
SECTION B
CLASSIFICATION OF THE BOARD
Except as otherwise fixed by or pursuant to the provisions of
Article IV hereof relating to the rights of the holders of any series of
Preferred Stock to separately elect additional directors, which additional
directors are not required to be classified pursuant to the terms of such
series of Preferred Stock, the Board of Directors of the Corporation shall be
divided into three classes: Class I, Class II and Class III. Each class shall
consist, as nearly as possible, of a number of directors equal to one-third of
the then authorized number of members of the Board of Directors. The term of
office of the initial Class I directors shall expire at the annual meeting of
stockholders in 1998; the term of office of the initial Class II directors
shall expire at the annual meeting of stockholders in 1999; and the term of
office of the initial Class III directors shall expire at the annual meeting of
stockholders in 2000. At each annual meeting of stockholders of the
Corporation the successors of that class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election. The directors of each class will hold office until their respective
successors are elected and qualified.
SECTION C
REMOVAL OF DIRECTORS
Subject to the rights of the holders of any series of
Preferred Stock, directors may be removed from office only for cause (as
hereinafter defined) upon the affirmative vote of the holders of at least 66
2/3% of the total voting power of the then outstanding Voting Securities (as
hereinafter defined), voting together as a single class. Except as may
otherwise be provided by law, "cause" for removal, for purposes of this Section
C, shall exist only if: (i) the director whose removal is proposed
- 7 -
<PAGE>
has been convicted of a felony, or has been granted immunity to testify in an
action where another has been convicted of a felony, by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal; (ii)
such director has become mentally incompetent, whether or not so adjudicated,
which mental incompetence directly affects his ability as a director of the
Corporation, as determined by at least 66 2/3% of the members of the Board of
Directors then in office (other than such director); or (iii) such director's
actions or failure to act have been determined by at least 66 2/3% of the
members of the Board of Directors then in office (other than such director) to
be in derogation of the director's duties. The term "Voting Securities" shall
include the Series A Common Stock, the Series B Common Stock and any series of
Preferred Stock entitled to vote with the holders of Common Stock generally
upon all matters which may be submitted to a vote of stockholders at any annual
meeting or special meeting thereof.
SECTION D
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Vacancies on the Board of Directors resulting from death,
resignation, removal, disqualification or other cause, and newly created
directorships resulting from any increase in the number of directors on the
Board of Directors, shall be filled by the affirmative vote of a majority of
the remaining directors then in office (even though less than a quorum) or by
the sole remaining director. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred or to which the new
directorship is apportioned, and until such director's successor shall have
been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director, except as may be provided in a Preferred Stock Designation with
respect to any additional director elected by the holders of the applicable
series of Preferred Stock.
SECTION E
LIMITATION ON LIABILITY AND INDEMNIFICATION
1. Limitation on Liability.
To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
the Corporation shall not be liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any repeal or modification of this paragraph 1 shall be prospective only and
shall not adversely affect any limitation, right or protection of a director of
the Corporation existing at the time of such repeal or modification.
- 8 -
<PAGE>
2. Indemnification.
(a) RIGHT TO INDEMNIFICATION. The Corporation
shall indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any person
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding") by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or not the claim
asserted is based on matters which antedate the adoption of this Section E.
The Corporation shall be required to indemnify or make advances to a person in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
(b) PREPAYMENT OF EXPENSES. The Corporation
shall pay the expenses (including attorneys' fees) incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this paragraph or otherwise.
(c) CLAIMS. If a claim for indemnification or
payment of expenses under this paragraph is not paid in full within 60 days
after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
(d) NON-EXCLUSIVITY OF RIGHTS. The rights
conferred on any person by this paragraph shall not be exclusive of any other
rights which such person may or hereafter acquire under any statute, provision
of this Certificate, the Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) OTHER INDEMNIFICATION. The Corporation's
obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or nonprofit
entity.
- 9 -
<PAGE>
3. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this
Section E shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
SECTION F
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors, by action taken
by the affirmative vote of not less than 75% of the members of the Board of
Directors then in office, is hereby expressly authorized and empowered to
adopt, amend or repeal any provision of the Bylaws of this Corporation.
ARTICLE VI
TERM
The term of existence of this Corporation shall be perpetual.
ARTICLE VII
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable.
It shall be issued as fully paid, and the private property of the stockholders
shall not be liable for the debts, obligations or liabilities of this
Corporation. This Certificate shall not be subject to amendment in this
respect.
- 10 -
<PAGE>
ARTICLE VIII
MEETINGS OF STOCKHOLDERS
SECTION A
ANNUAL AND SPECIAL MEETINGS
Subject to the rights of the holders of any series of
Preferred Stock, stockholder action may be taken only at an annual or special
meeting. Except as otherwise provided in the terms of any series of Preferred
Stock or unless otherwise prescribed by law or by another provision of this
Certificate, special meetings of the stockholders of the Corporation, for any
purpose or purposes, shall be called by the Secretary of the Corporation (i)
upon the written request of the holders of not less than 66 2/3% of the total
voting power of the outstanding Voting Securities (as defined in Section C of
Article V of this Certificate) or (ii) at the request of at least 75% of the
members of the Board of Directors then in office.
SECTION B
ACTION WITHOUT A MEETING
Except as otherwise provided in the terms of any series of
Preferred Stock, no action required to be taken or which may be taken at any
annual meeting or special meeting of stockholders may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, is specifically denied.
ARTICLE IX
ACTIONS REQUIRING SUPERMAJORITY STOCKHOLDER VOTE
Subject to the rights of the holders of any series of
Preferred Stock, the affirmative vote of the holders of at least 66 2/3% of the
total voting power of the then outstanding Voting Securities (as defined in
Section C of Article V of this Certificate), voting together as a single class
at a meeting specifically called for such purpose, shall be required in order
for the Corporation to take any action to authorize:
(a) the amendment, alteration or repeal of any provision
of this Certificate or the addition or insertion of other provisions herein;
- 11 -
<PAGE>
(b) the adoption, amendment or repeal of any provision of
the Bylaws of the Corporation; provided, however, that this clause (b) shall
not apply to, and no vote of the stockholders of the Corporation shall be
required to authorize, the adoption, amendment or repeal of any provision of
the Bylaws of the Corporation by the Board of Directors in accordance with the
power conferred upon it pursuant to Section F of Article V of this Certificate;
(c) the merger or consolidation of this Corporation with
or into any other corporation; provided, however, that this clause (c) shall
not apply to any merger or consolidation (i) as to which the laws of the State
of Delaware, as then in effect, do not require the consent of this
Corporation's stockholders, or (ii) which at least 75% of the members of the
Board of Directors then in office have approved;
(d) the sale, lease or exchange of all, or substantially
all, of the property and assets of the Corporation; or
(e) the dissolution of the Corporation.
All rights at any time conferred upon the stockholders of the
Corporation pursuant to this Certificate are granted subject to the provisions
of this Article IX.
ARTICLE X
INCORPORATOR
The name and address of the incorporator of the Corporation
are set forth below.
Leslie A. Nichols Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
DATED: January 20th, 1997.
/s/ LESLIE A. NICHOLS
---------------------------------
Leslie A. Nichols, Incorporator
- 12 -
