Attached files
file | filename |
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10-Q - FORM 10-Q - Cinedigm Corp. | form10q_1385559.htm |
EX-2.1 - AMENDMENT AND WAIVER TO SECURITIES PURCHASE AGREEMENT - Cinedigm Corp. | exh2-1_1378406.htm |
EX-32.3 - CERTIFICATION OF CHIEF ACCOUNTING OFFICER - Cinedigm Corp. | exh32-3_1385636.htm |
EX-32.1 - CERTIFICATION OF CHIEF EXECUTIVE OFFICER - Cinedigm Corp. | exh32-1_1385634.htm |
EX-31.2 - OFFICER'S CERTIFICATE - Cinedigm Corp. | exh31-2_1385632.htm |
EX-31.1 - OFFICER'S CERTIFICATE - Cinedigm Corp. | exh31-1_1385630.htm |
EX-31.3 - OFFICER'S CERTIFICATE - Cinedigm Corp. | exh31-3_1385633.htm |
EX-32.2 - CERTIFICATION OF CHIEF FINANCIAL OFFICER - Cinedigm Corp. | exh32-2_1385635.htm |
EXHIBIT
3.1
FOURTH
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
Gary
Loffredo, Secretary of the herein named Corporation, hereby certifies
that:
1. The
present name of the corporation (hereinafter called the “Corporation”) is Access
Integrated Technologies, Inc.
2. The
date of filing of the Third Amended and Restated Certificate of Incorporation of
the Corporation with the Secretary of State of the State of Delaware is November
21, 2001. The date of filing of the Second Amended and Restated
Certificate of Incorporation of the Corporation with the Secretary of State of
the State of Delaware is October 19, 2001. The date of filing of
the Restated Certificate of Incorporation of the Corporation with the Secretary
of State of the State of Delaware is August 14, 2001. The date of
filing the original Certificate of Incorporation of the Corporation with the
Secretary of State of the State of Delaware is March 31, 2000. The
original name of the Corporation was Access Colo, Inc.
3. The
Third Amended and Restated Certificate of Incorporation of the Corporation is
hereby amended and restated by striking out Articles ONE through SIXTEEN and
substituting in lieu thereof new Articles ONE through TEN, which Articles shall,
among other things, declare a reverse stock split of the Corporation’s capital
stock and eliminate certain classes and series at the Corporation’s capital
stock (the “Third Amended and Restated Certificate of
Incorporation”).
4. The
provisions of the Third Amended and Restated Certificate of Incorporation of the
Corporation are hereby amended, restated and integrated into the single
instrument that is hereinafter set forth, and that is entitled the Fourth
Amended and Restated Certificate of Incorporation of the Corporation without any
further amendments other than the amendments herein certified.
5. This
Fourth Amended and Restated Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Sections 228, 242 and 245
of the General Corporation Law of the State of Delaware. Prompt
written notice of the adoption of the amendment herein certified has been given
to those stockholders who have not consented in writing thereto, as provided in
Section 228 of the General Corporation Law of the State of
Delaware.
6. The
Certificate of Incorporation, as amended and restated herein, shall, at the
effective time of this Fourth Amended and Restated Certificate of Incorporation,
read as follows:
-1-
FOURTH
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
FIRST:
Name: The
name of the Corporation is:
Access Integrated Technologies, Inc.
SECOND: Address: The
address of the Corporation’s registered office in the State of Delaware is 2711
Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware
19808. The name of the agent at such address is Corporation Service
Company.
THIRD: Purpose: The
purpose of the Corporation is 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: Capitalization: The
total number of shares of capital stock that the Corporation shall have
authority to issue is Ninety-Five Million (95,000,000) shares as
follows: (i) Eighty Million (80,000,000) shares of common stock, of
which Forty Million (40,000,000) shares shall be Class A Common Stock, par value
$.001 per share (the “Class A Common Stock”), and Fifteen Million (15,000,000)
shares shall be Class B Common Stock, par value $.001 per share (the “Class B
Common Stock”); and (ii) Fifteen Million (15,000,000) shares of preferred stock,
par value $.001 per share (the “Preferred Stock”), of which the Board of
Directors shall have the authority by resolution or resolutions to fix all of
the powers, preferences and rights, and the qualifications, limitations and
restrictions of the Preferred Stock permitted by the Delaware General
Corporation Law and to divide the Preferred Stock into one or more class and/or
classes and designate all of the powers, preferences and rights, and the
qualifications, limitations and restrictions of each class permitted by the
Delaware General Corporation Law.
Except as
otherwise provided by law or this Fourth Amended and Restated Certificate of
Incorporation (this “Certificate of Incorporation”), the holders of the Class A
Common Stock and the Class B Common Stock, shall have all the same rights and
privileges as Common Stock, except that the holders of Class A Common Stock and
the Class B Common Stock shall be entitled to vote on all matters to be voted on
by the stockholders of the Corporation on the following basis: (i)
each share of the Class A Common Stock shall entitle the holder thereof to one
vote, and (ii) each share of Class B Common Stock shall entitle the holder
thereof to ten votes.
Each
share of Class B Common Stock may also be converted, at any time at the option
of the holder thereof, into one (1) validly issued, fully paid and
non-assessable share of Class A Common Stock (subject to adjustment to reflect
stock splits, consolidations, recapitalizations and
reorganizations). Each holder of Class B Common Stock that desires to
convert its shares of Class B Common Stock, into shares of Class A Common Stock
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for the Class B Common Stock
and shall give written notice to the
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Corporation
at such office that such holder elects to convert the same and shall state
therein the number of shares of Class B Common Stock being
converted. Thereupon the Corporation shall promptly issue and deliver
to such holder a certificate or certificates for the number of shares of Class A
Common Stock to which such holder is entitled, together with a cash adjustment
of any fraction of a share as hereinafter provided. Such conversion
shall be deemed to have been made immediately prior to the close of business on
the date of such surrender of the certificate or certificates representing the
shares of Class B Common Stock be converted, and the person or entity entitled
to receive the shares of Class A Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder of such shares of Class A
Common Stock on such date.
At the
option of the holders of fifty-one (51%) percent of the shares of outstanding
Class B Common Stock, voting as a class, each share of Class B Common Stock
shall be converted (the “Class B Conversion”) into one (1) validly issued, fully
paid and non-assessable share of Class A Common Stock (subject to adjustment to
reflect stock splits, stock dividends, consolidations, recaptializations,
reorganizations or other like occurrences). All holders of record of
shares of Class B Common Stock, then outstanding shall be given at least ten
(10) days’ prior written notice of the date fixed (the “Conversion Date”) and
place designated by the Corporation for mandatory conversion of all such shares
of Class B Common Stock, pursuant to this paragraph. Such notice
shall be sent by first-class or registered mail, postage prepaid, to each record
holder of Class B Common Stock, at such holder’s address last shown on the
records of the Corporation or of any transfer agent for the Class B Common
Stock. Each holder of Class B Common Stock shall surrender the
certificate or certificates, duly endorsed, at the office of the Corporation or
any transfer agent for the Class B Common Stock by the Conversion
Date. Thereupon the Corporation shall promptly issue and deliver to
such holder a certificate or certificates for the number of shares of Class A
Common Stock to which such holder is entitled, together with a cash adjustment
of any fraction of a share as hereinafter provided. Such conversion
shall be deemed to have been made immediately prior to the close of business on
the date of such surrender of the certificate or certificates representing the
shares of Class B Common Stock to be converted, and the person or entity
entitled to receive the shares of Class A Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
of Class A Common Stock on such date; provided, however, that if such
certificate or certificates are not surrendered by such holder by the Conversion
Date, such conversion shall be deemed to have been made on the Conversion Date
and such holder thereafter shall be deemed to have a right to receive only such
number of shares of Class A Common Stock into which such holder’s shares of
Class B Common Stock shall be converted in accordance herewith.
Upon the
effectiveness (the “Effective Date”) of the Certificate of Amendment filed by
the Corporation on September 18, 2003, each five (5) shares of Class A and B
Common Stock issued and outstanding on the Effective Date (the “Old Common
Stock”) shall be converted into one (1) share of Class A and B Common Stock,
respectively (the “New Common Stock”), subject to the treatment of fractional
share interests as described below. A holder of such five (5) shares
shall be entitled to receive, upon surrender of a stock certificate or stock
certificates representing such Old Common Stock (the “Old Certificates,” whether
one or more) to the Corporation for cancellation, a certificate of certificates
(the “New Certificates,” whether one or more) representing the number of whole
shares of the New Common Stock into which
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and for
which the shares of the Old Common Stock formerly represented by such Old
Certificates so surrendered are reclassified under the terms
hereof. No certificates representing fractional share interests in
New Common Stock will be issued, and no such fractional share interest will
entitle the holder thereof to vote, or to any rights of a stockholder of the
Corporation. In lieu of such fractional shares, each holder of Class
Old Common Stock who or that would otherwise have been entitled to a fraction of
a share of such common stock upon surrender of such holder’s Old Certificates
will be entitled to receive one sole share of such common stock. If
more than one Old Certificate shall be surrendered at one time for the account
of the same stockholder, the number of full shares of New Common Stock for which
New Certificates shall be issued shall be computed on the basis of the aggregate
number of shares represented by the Old Certificates so
surrendered. In the event that the Corporation determines that a
holder of Old Certificates has not tendered all his or her certificates for
exchange, the Corporation shall carry forward any fractional share until all
certificates of that holder have been presented for exchange such that any
stockholder will not be entitled to receive more than one share of New Common
Stock in lieu of fractional shares. If any New Certificate is to be
issued in a name other than that in which the Old Certificates surrendered for
exchange are issued, the Old Certificates so surrendered shall be properly
endorsed and registered in such name or names as such holder may direct, subject
to compliance with applicable laws and the Third Amended and Restated
Stockholders’ Agreement, as amended, supplemented, restated or otherwise
modified from time to time, among the Corporation and certain of its
stockholders to the extent such designation shall involve a transfer, and the
person or persons requesting such exchange shall affix any requisite stock
transfer tax stamps to the Old Certificates surrendered, or provide funds for
their purchase, or establish to the satisfaction of the Corporation that such
taxes are not payable. From and after the Effective Date, the amount
of capital represented by the shares of the New Common Stock into which and for
which the shares of the Old Common Stock are reclassified under the terms hereof
shall be the same as the amount of capital represented by the shares of Old
Common Stock so reclassified, until thereafter reduced or increased in
accordance with applicable law.
FIFTH: Voting: The
holders of the Common Stock shall be entitled to vote on all matters submitted
to a vote of the stockholders of the Corporation for each share held by such
holders in accordance with Section 4 hereof.
SIXTH: The
Corporation is to have perpetual existence.
SEVENTH: In
furtherance and not in limitation of the powers conferred by statute, the board
of directors of the Corporation is expressly authorized to adopt, amend or
repeal the by-laws of the Corporation.
EIGHTH: Meetings
of stockholders may be held within or without the State of Delaware, as the
by-laws of the Corporation may provide. The books of the Corporation
may be kept (subject to any provision contained in any statute) outside the
State of Delaware at such place or places as may be designated from time to time
by the board of directors of the Corporation or in the by-laws of the
Corporation. Elections of directors need not be by written ballot
unless the by-laws of the Corporation shall so provide.
-4-
NINTH: The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in any manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
TENTH: The
Corporation shall indemnify, to the fullest extent now or hereafter permitted by
law, each director, officer or other authorized representative of the
Corporation who was or is made a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was an authorized representative of the Corporation, against all expenses
(including attorneys’ fees and disbursements), judgments, fines (including
excise taxes and penalties) and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding.
A director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; provided, however, that this
provision shall not eliminate or limit the liability of a director to the extent
that such elimination or limitation of liability is expressly prohibited by the
Delaware General Corporation Law as in effect at the time of the alleged breach
of duty by such director.
Any repeal or modification of this
Article by the stockholders of the Corporation shall not adversely affect any
right or protection existing at the time of such repeal or modification to which
any person may be entitled under this Article. The rights conferred
by this Article shall not be exclusive of any other right which the Corporation
may now or hereafter grant, or any person may have or hereafter acquire, under
any statute, provision of this Certificate of Incorporation, by-law, agreement,
vote of stockholders or disinterested directors or otherwise. The
rights conferred by this Article shall continue as to any person who shall have
ceased to be a director or officer of the Corporation and shall inure to the
benefit of the heirs, executors and administrators of such person.
For the purposes of this Article, the
term “authorized representative” shall mean a director, officer, employee or
agent of the Corporation or of any subsidiary of the Corporation, or a trustee,
custodian, administrator, committeeman or fiduciary of any employee benefit plan
established and maintained by the Corporation or by any subsidiary of the
Corporation, or a person who is or was serving another Corporation, partnership,
joint venture, trust or other enterprise in any of the foregoing capacities at
the request of the Corporation.
Executed
on November 14, 2003
/s/
Gary Loffredo
|
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Gary
Loffredo, Secretary
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-5-
CERTIFICATE
OF AMENDMENT
TO
FOURTH
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
The
undersigned, being the President of Access Integrated Technologies, Inc., a
Delaware corporation (the “Corporation”), pursuant to Section 242 of the General
Corporation Law of the State of Delaware, as amended (the “DGCL”), does hereby
certify as follows:
1.
|
Pursuant
to a unanimous written consent of the Board of Directors of the
Corporation (the “Board”), the Board adopted resolutions (the “Amending
Resolutions”) to amend the Corporation’s Fourth Amended and Restated
Certificate of Incorporation of the Corporation, as filed with the
Delaware Secretary of State on November 14,
2003;
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2.
|
Pursuant
to a majority vote of the Corporation’s Shareholders in accordance with
Section 242 of the DGCL, the holders of the Corporation’s outstanding
capital stock voted in favor of the Amending Resolutions;
and
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3.
|
The
Amending Resolutions were duly adopted in accordance with Section 242 of
the DGCL.
|
NOW,
THEREFORE, to effect the Amending Resolutions, Article Fourth of the Certificate
of Incorporation shall be deleted in its entirety and replaced as
follows:
“FOURTH: Capitalization: The
total number of shares of capital stock that the Corporation shall have
authority to issue is Ninety-Five Million (95,000,000) shares as
follows: (i) Eighty Million (80,000,000) shares of common stock, of
which Sixty-Five Million (65,000,000) shares shall be Class A Common Stock, par
value $.001 per share (the “Class A Common Stock”), and Fifteen Million
(15,000,000) shares shall be Class B Common Stock, par value $.001 per share
(the “Class B Common Stock”); and (ii) Fifteen Million (15,000,000) shares of
preferred stock, par value $.001 per share (the “Preferred Stock”), of which the
Board of Directors shall have the authority by resolution or resolutions to fix
all of the powers, preferences and rights, and the qualifications, limitations
and restrictions of the Preferred Stock permitted by the Delaware General
Corporation Law and to divide the Preferred Stock into one or more class and/or
classes and designate all of the powers, preferences and rights, and the
qualifications, limitations and restrictions of each class permitted by the
Delaware General Corporation Law.
-6-
Except as
otherwise provided by law or this Fourth Amended and Restated Certificate of
Incorporation, as amended from time to time (this “Certificate of
Incorporation”), the holders of the Class A Common Stock and the Class B Common
Stock, shall have all the same rights and privileges as Common Stock, except
that the holders of Class A Common Stock and the Class B Common Stock shall be
entitled to vote on all matters to be voted on by the stockholders of the
Corporation on the following basis: (i) each share of the Class A
Common Stock shall entitle the holder thereof to one vote, and (ii) each share
of Class B Common Stock shall entitle the holder thereof to ten
votes.
Each
share of Class B Common Stock may also be converted, at any time at the option
of the holder thereof, into one (1) validly issued, fully paid and
non-assessable share of Class A Common Stock (subject to adjustment to reflect
stock splits, consolidations, recapitalizations and
reorganizations). Each holder of Class B Common Stock that desires to
convert its shares of Class B Common Stock, into shares of Class A Common Stock
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for the Class B Common Stock
and shall give written notice to the Corporation at such office that such holder
elects to convert the same and shall state therein the number of shares of Class
B Common Stock being converted. Thereupon the Corporation shall
promptly issue and deliver to such holder a certificate or certificates for the
number of shares of Class A Common Stock to which such holder is entitled,
together with a cash adjustment of any fraction of a share as hereinafter
provided. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate or certificates representing the shares of Class B Common Stock be
converted, and the person or entity entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Class A Common Stock on such
date.
At the
option of the holders of fifty-one (51%) percent of the shares of outstanding
Class B Common Stock, voting as a class, each share of Class B Common Stock
shall be converted (the “Class B Conversion”) into one (1) validly issued, fully
paid and non-assessable share of Class A Common Stock (subject to adjustment to
reflect stock splits, stock dividends, consolidations, recaptializations,
reorganizations or other like occurrences). All holders of record of
shares of Class B Common Stock, then outstanding shall be given at least ten
(10) days’ prior written notice of the date fixed (the “Conversion Date”) and
place designated by the Corporation for mandatory conversion of all such shares
of Class B Common Stock, pursuant to this paragraph. Such notice
shall be sent by first-class or registered mail, postage prepaid, to each record
holder of Class B Common Stock, at such holder’s address last shown on the
records of the Corporation or of any transfer agent for the Class B Common
Stock. Each holder of Class B Common Stock shall surrender the
certificate or certificates, duly endorsed, at the office of the Corporation or
any transfer agent for the Class B
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Common
Stock by the Conversion Date. Thereupon the Corporation shall
promptly issue and deliver to such holder a certificate or certificates for the
number of shares of Class A Common Stock to which such holder is entitled,
together with a cash adjustment of any fraction of a share as hereinafter
provided. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate or certificates representing the shares of Class B Common Stock to
be converted, and the person or entity entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Class A Common Stock on such date; provided,
however, that if such certificate or certificates are not surrendered by such
holder by the Conversion Date, such conversion shall be deemed to have been made
on the Conversion Date and such holder thereafter shall be deemed to have a
right to receive only such number of shares of Class A Common Stock into which
such holder’s shares of Class B Common Stock shall be converted in accordance
herewith.
Upon the
effectiveness (the “Effective Date”) of the Certificate of Amendment filed by
the Corporation on September 18, 2003, each five (5) shares of Class A and B
Common Stock issued and outstanding on the Effective Date (the “Old Common
Stock”) shall be converted into one (1) share of Class A and B Common Stock,
respectively (the “New Common Stock”), subject to the treatment of fractional
share interests as described below. A holder of such five (5) shares
shall be entitled to receive, upon surrender of a stock certificate or stock
certificates representing such Old Common Stock (the “Old Certificates,” whether
one or more) to the Corporation for cancellation, a certificate of certificates
(the “New Certificates,” whether one or more) representing the number of whole
shares of the New Common Stock into which and for which the shares of the Old
Common Stock formerly represented by such Old Certificates so surrendered are
reclassified under the terms hereof. No certificates representing
fractional share interests in New Common Stock will be issued, and no such
fractional share interest will entitle the holder thereof to vote, or to any
rights of a stockholder of the Corporation. In lieu of such
fractional shares, each holder of Class Old Common Stock who or that would
otherwise have been entitled to a fraction of a share of such common stock upon
surrender of such holder’s Old Certificates will be entitled to receive one sole
share of such common stock. If more than one Old Certificate shall be
surrendered at one time for the account of the same stockholder, the number of
full shares of New Common Stock for which New Certificates shall be issued shall
be computed on the basis of the aggregate number of shares represented by the
Old Certificates so surrendered. In the event that the Corporation
determines that a holder of Old Certificates has not tendered all his or her
certificates for exchange, the Corporation shall carry forward any fractional
share until all certificates of that holder have been presented for exchange
such that any stockholder will not be entitled to receive more than one share of
New Common Stock in lieu of fractional shares. If any New Certificate
is to be issued in a name other than that in which the Old Certificates
surrendered
-8-
for
exchange are issued, the Old Certificates so surrendered shall be properly
endorsed and registered in such name or names as such holder may direct, subject
to compliance with applicable laws and the Third Amended and Restated
Stockholders’ Agreement, as amended, supplemented, restated or otherwise
modified from time to time, among the Corporation and certain of its
stockholders to the extent such designation shall involve a transfer, and the
person or persons requesting such exchange shall affix any requisite stock
transfer tax stamps to the Old Certificates surrendered, or provide funds for
their purchase, or establish to the satisfaction of the Corporation that such
taxes are not payable. From and after the Effective Date, the amount
of capital represented by the shares of the New Common Stock into which and for
which the shares of the Old Common Stock are reclassified under the terms hereof
shall be the same as the amount of capital represented by the shares of Old
Common Stock so reclassified, until thereafter reduced or increased in
accordance with applicable law.
Except as
specifically set forth herein, the Certificate of Incorporation shall not be
amended, modified or otherwise altered by this Certificate of
Amendment.
* * *
[Signature
page follows]
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IN
WITNESS WHEREOF, the Corporation has caused this Amendment to the Certificate of
Incorporation of Access Integrated Technologies, Inc. to be signed by A. Dale
Mayo, its President, Chief Executive Officer and Chairman of the Board of
Directors, this 4th day of September, 2008, who acknowledges that the foregoing
is the act and deed of the Corporation and that the facts stated herein are
true.
By:
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/s/
A. Dale Mayo
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Name:
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A.
Dale Mayo
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Title:
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President,
Chief Executive Officer and Chairman of the Board of
Directors
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-10-
CERTIFICATE
OF DESIGNATIONS
OF
SERIES A
10% NON-VOTING CUMULATIVE PREFERRED STOCK
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
(Pursuant
to Section 151(g) of the
Delaware
General Corporation Law)
Access
Integrated Technologies, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the “Corporation”) does hereby
certify that the following resolutions respecting Series A 10% Non-Voting
Cumulative Preferred Stock were duly adopted by the Corporation’s Board of
Directors:
WHEREAS,
the Fourth Amended and Restated Certificate of Incorporation, as amended, of the
Corporation (the “Certificate of Incorporation”) authorizes the Corporation to
issue an aggregate of 15,000,000 shares of preferred
stock, par value $0.001 per share (“Preferred Stock”), which may be divided into
one or more series as the Board of Directors may determine; and
WHEREAS,
the Certificate of Incorporation expressly vests in the Board of Directors the
authority to fix all of the powers, preferences and rights, and the
qualifications, limitations and restrictions of the Preferred Stock;
and
WHEREAS,
the Board of Directors deems it advisable to designate a series of the Preferred
Stock consisting of shares designated as Series A 10% Non-Voting Cumulative
Preferred Stock.
NOW,
THEREFORE, IT IS HEREBY:
RESOLVED,
that pursuant to the Certificate of Incorporation, a series of Preferred Stock
be, and hereby is, created, consisting of 20 shares, par value of $0.001 per
share (the “Series A Preferred Stock”), which Series A Preferred Stock shall
have the voting rights, designations, powers, preferences, relative and other
special rights, and the qualifications, limitations and restrictions set forth
as follows:
1. Dividend Rights. The
holders of Series A Preferred Stock shall be entitled to receive dividends, but
only out of funds that are legally available therefor, at the rate of 10% of the
Series A Original Issue Price (as defined below) per annum on each outstanding
share of Series A Preferred Stock (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 $500,000 per share (the “Series A Original Issue
Price”). For any share of Series A Preferred Stock, such dividends shall
begin to accrue commencing upon the first date such share is issued and becomes
outstanding (the “Original Issue Date”)
and shall be payable in cash or, at the Corporation’s option, by converting the
cash amount of such dividends into Class A common stock, par value $0.001 per
share (the “Class A
Common Stock”), based on the value of the Class A Common Stock equal to
(i) so long as the sum of the number of shares of Class A Common
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Stock
issued by the Corporation that would be integrated with the other shares of
Class A Common Stock issued under this Paragraph 1 under the rules of the NASDAQ
Stock Market plus the number of shares of Class A Common Stock issued under this
Paragraph 1 does not exceed 5,366,529 shares (as shall be adjusted for stock
splits), the price determined by the daily volume weighted average price per
share of the Class A Common Stock on its principal trading market as reported by
Bloomberg Financial L.P. (the “VWAP”) for the five
(5) day Trading Day (as defined below) period ending on the Trading Day (as
defined below) immediately preceding the Dividend Payment Date (as defined
below), of the Corporation, and (ii) thereafter, the greater of the Book Value
Per Share (as defined below) or Market Value Per Share (as defined below) (the
greater of those two amounts, the “Market Price”), as
measured on the Original Issue Date for the initial issuance of shares of Series
A Preferred Stock in connection with any shares of Series A Preferred Stock that
would be integrated under the rules of the NASDAQ Stock Market. The
dividends shall be payable in arrears (a) first, on the earlier of (x) September
30, 2010 or (y) the last day of the calendar quarter during which the
Corporation ceases to be contractually prohibited from paying such dividends,
and thereafter (b) quarterly on the last day of each calendar quarter beginning
in the calendar quarter following such initial dividend payment date and
continuing until such shares of Series A Preferred Stock are redeemed (each, a
“Dividend Payment Date”), provided, that, if any such Dividend Payment Date is
not a Business Day (as defined below), then any such dividend shall be payable
on the next Business Day. Such dividends shall accrue day-by-day and
shall be cumulative, whether or not declared by the Board of Directors and
whether or not there shall be funds legally available for the payment of
dividends. The term “Business Day” means any day other than a Saturday, a Sunday
or a day on which banking institutions in the New York, New York are authorized
or required by law to be closed. Until it has paid all dividends on
the Series A Preferred Stock as contemplated in this Certificate of
Designations, the Corporation may not pay dividends on the Class A Common Stock,
the Class B common stock, par value $0.001 per share, of the Corporation (the
“Class B Common
Stock” and, together with the Class A Common Stock, the “Common Stock”) or any
other stock of the Corporation hereafter created that is junior in terms of
dividend rights, redemption or liquidation preference to the Series A Preferred
Stock (together with the Common Stock, “Junior
Stock”). The term “Trading Day” means any day on which the
Class A Common Stock is traded on its principal market; provided that the
“Trading Day” shall not include any day on which the principal market is open
for trading for less than 4.5 hours. The terms “Book Value Per Share”
and “Market Value Per Share” shall be determined in accordance with the rules of
The NASDAQ Stock Market, as in effect on the date of this Certificate of
Designations.
2. Voting Rights. Except
as otherwise provided herein or as required by law, the holders of Series A
Preferred Stock will not have the right to vote on matters brought before the
stockholders of the Corporation.
3. Liquidation Rights.
Upon any liquidation, dissolution, or winding up of the Corporation, whether
voluntary or involuntary, before any distribution or payment shall be made to
the holders of any Junior Stock, subject to the rights of any series of
Preferred Stock that may from time-to-time come into existence and which is
expressly senior to the rights of the Series A Preferred Stock, the holders of
Series A Preferred Stock shall be entitled to be paid in cash out of the assets
of the Corporation an amount per share of Series A Preferred Stock equal to 100%
of the Series A Original Issue Price (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to such
shares), plus accrued but unpaid dividends (the
-12-
“Liquidation
Preference”), for each share of Series A Preferred Stock held by each such
holder. If, upon any such liquidation, dissolution, or winding up, the assets of
the Corporation shall be insufficient to make payment in full of the Liquidation
Preference to all holders of Series A Preferred Stock, then such assets shall be
distributed among the holders of Series A Preferred Stock at the time
outstanding, ratably in proportion to the full amounts to which they would
otherwise be respectively entitled.
4. Conversion Rights.
Except as otherwise provided herein or as required by law, the holders of Series
A Preferred Stock will have no rights with respect to the conversion of the
Series A Preferred Stock into shares of Class A Common Stock or any other
security of the Corporation.
5. Redemption. The
Series A Preferred Stock may be redeemed by the Corporation at any time after
the second anniversary of the Original Issue Date (the “Redemption Date”)
upon thirty (30) days advance written notice (a “Notice of
Redemption”) to the holder, for a price equal to One Hundred and Ten
Percent (110%) of the Liquidation Preference (which Liquidation Preference shall
include, for avoidance of doubt, all accrued but unpaid dividends payable to the
holder of the Series A Preferred Stock for the period between the Notice of
Redemption and the Redemption Date) (the “Callable Amount”),
payable in cash or, at the Corporation’s option, so long as the closing price of
the Class A Common Stock is $2.18 or higher (as shall be adjusted for stock
splits) for at least (90) consecutive Trading Days ending on the
Trading Day immediately prior to the Notice of Redemption, by converting
such Callable Amount into Class A Common Stock at the Market Price, as measured
on the Original Issue Date for the initial issuance of shares of Series A
Preferred Stock in connection with any shares of Series A Preferred Stock that
would be integrated under the rules of the NASDAQ Stock Market. The Corporation
will indicate on a Notice of Redemption whether the Corporation will redeem the
Series A Preferred Stock to be so redeemed in cash or, if so permitted under the
immediately preceding sentence, in Class A Common Stock.
6. Amendment. None
of the powers, preferences and relative, participating, optional and other
special rights of the Series A Preferred Stock as provided in this Certificate
of Designations or in the Certificate of Incorporation shall be amended in any
manner that would alter or change the powers, preferences, rights or privileges
of the holders of Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least four-fifths of the
outstanding shares of Series A Preferred Stock, voting as a separate
class.
FURTHER
RESOLVED, that the officers of the Corporation are authorized and are directed
to file with the Secretary of State of the State of Delaware a Certificate
pursuant to Section 151(a) of the General Corporate Law setting forth these
resolutions in order to establish the rights and preferences set forth in the
Certificate of Designations associated with the Series A Preferred
Stock.
-13-
IN
WITNESS WHEREOF, the undersigned duly authorized officer of the Corporation has
executed this Certificate of Designations on February 2, 2009.
ACCESS
INTEGRATED TECHNOLOGIES, INC.
|
||
By:
|
/s/
A. Dale Mayo
|
|
A.
Dale Mayo
|
||
President
and Chief Executive Officer
|
-14-
CERTIFICATE
OF DESIGNATIONS
OF
SERIES
B JUNIOR PARTICIPATING PREFERRED STOCK
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
(Pursuant
to Section 151 of the
General
Corporation Law of the State of Delaware)
_____________________________
Access
Integrated Technologies, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
“Corporation”), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law of the State of Delaware at a meeting duly called and
held on August 10, 2009.
RESOLVED,
that pursuant to the authority granted to and vested in the Board of Directors
of this Corporation (hereinafter called the “Board of Directors” or the “Board”)
in accordance with the provisions of the Amended and Restated Certificate of
Incorporation of this Corporation the Board of Directors hereby creates a series
of Preferred Stock, par value $0.001 per share (the “Preferred Stock”), of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, powers and preferences, and qualifications, limitations and
restrictions thereof as follows:
Section
1. Designation and
Amount. The shares of such series shall be designated as
“Series B Junior Participating Preferred Stock” (the “Series B Preferred Stock”)
and the number of shares constituting the Series B Preferred Stock shall be
1,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series B Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
Section
2. Dividends and
Distributions.
(A) Subject
to the prior and superior rights of the holders of any shares of any class or
series of stock of this Corporation ranking prior and superior to the Series B
Preferred Stock with respect to dividends, the holders of shares of Series B
Preferred Stock, in preference to the holders of Class A Common Stock, par value
$0.001 per share (the “Class A Common Stock”), of the Corporation and Class B
Common Stock, par value $0.001 per share (the “Class B
Common Stock,” and together with Class A Common Stock, the “Common Stock”), of
the Corporation, and of any other stock ranking junior to the Series B Preferred
Stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a “Quarterly
Dividend
Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series B Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00
or (b) subject to the provision for adjustment hereinafter set forth, 1,000
times the aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series B Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The
Corporation shall declare a dividend or distribution on the Series B Preferred
Stock as provided in paragraph (A) of this Section 2 immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series B Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series B
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date
of issue of such shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
B Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series B Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors
may fix a record date for the determination of holders of shares of Series B
Preferred Stock entitled to receive payment of a dividend or
distribution
declared
thereon, which record date shall be not more than sixty (60) days prior to the
date fixed for the payment thereof.
Section
3. Voting
Rights. The holders of shares of Series B Preferred Stock
shall have the following voting rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of Series B
Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except
as otherwise provided herein, in any other Certificate of Designations creating
a series of Preferred Stock or any similar stock, or by law, the holders of
shares of Series B Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting rights shall
vote together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) Except
as set forth herein, or as otherwise provided by law, holders of Series B
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
(D) If,
at the time of any annual meeting of stockholders for the election of directors,
the equivalent of six quarterly dividends (whether or not consecutive) payable
on any share or shares of Series B Preferred Stock are in default, the number of
directors constituting the Board of Directors of the Corporation shall be
increased by two. In addition to voting together with the holders of
Common Stock for the election of other directors of the Corporation, the holders
of record of the Series B Preferred Stock, voting separately as a class to the
exclusion of the holders of Common Stock, shall be entitled at such meeting of
stockholders (and at each subsequent annual meeting of stockholders), unless all
dividends in arrears on the Series B Preferred Stock have been paid or declared
and set apart for payment prior thereto, to vote for the election of two
directors of the Corporation, the holders of any Series B Preferred Stock being
entitled to cast a number of votes per share of Series B Preferred Stock as is
specified in paragraph (A) of this Section 3. Each such additional
director shall serve until the next annual meeting of stockholders for the
election of directors, or until his successor shall be elected and shall
qualify, or until his right to hold such office terminates pursuant to the
provisions of this
Section
3(D). Until the default in payments of all dividends which permitted
the election of said directors shall cease to exist, any director who shall have
been so elected pursuant to the provisions of this Section 3(D) may be removed
at any time, without cause, only by the affirmative vote of the holders of the
shares of Series B Preferred Stock at the time entitled to cast a majority of
the votes entitled to be cast for the election of any such director at a special
meeting of such holders called for that purpose, and any vacancy thereby created
may be filled by the vote of such holders. If and when such default
shall cease to exist, the holders of the Series B Preferred Stock shall be
divested of the foregoing special voting rights, subject to revesting in the
event of each and every subsequent like default in payments of
dividends. Upon the termination of the foregoing special voting
rights, the terms of office of all persons who may have been elected directors
pursuant to said special voting rights shall forthwith terminate, and the number
of directors constituting the Board of Directors shall be reduced by
two. The voting rights granted by this Section 3(D) shall be in
addition to any other voting rights granted to the holders of the Series B
Preferred Stock in this Section 3.
Section
4. Certain
Restrictions.
(A) Whenever
quarterly dividends or other dividends or distributions payable on the Series B
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series B Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare
or pay dividends, or make any other distributions, on any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Preferred Stock;
(ii) declare
or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except dividends paid ratably on
the Series B Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series B Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking junior (both as to
dividends and upon dissolution, liquidation or winding up) to the Series B
Preferred Stock; or
(iv) redeem
or purchase or otherwise acquire for consideration any shares of Series B
Preferred Stock, or any shares of stock ranking on a parity with the Series B
Preferred Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all
holders
of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or
classes.
(B) The
Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section
5. Reacquired
Shares. Any shares of Series B Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Amended and
Restated Certificate of Incorporation or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
Section
6. Liquidation, Dissolution or
Winding Up.
(A) Upon
any liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise no distribution shall be made (i) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Preferred Stock unless, prior thereto, the holders
of Series B Preferred Stock shall have received an amount per share (the “Series
B Liquidation Preference”) equal to $10 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series B
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Stock, or (ii) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series B
Preferred Stock, except distributions made ratably on the Series B Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of Series B
Preferred Stock were entitled immediately prior to such event under the proviso
in clause (i) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding immediately prior to
such event.
(B) In
the event, however, that there are not sufficient assets available to permit
payment in full of the Series B Liquidation Preference and the liquidation
preferences of all other classes and series of stock of the Corporation, if any,
that rank on a parity with the Series B Preferred Stock in respect thereof, then
the assets available for such distribution shall be distributed ratably to the
holders of the Series B Preferred Stock and the holders of such parity shares in
proportion to their respective liquidation preferences.
(C) Neither
the merger or consolidation of the Corporation into or with another corporation
nor the merger or consolidation of any other corporation into or with the
Corporation shall be deemed to be a liquidation, dissolution or winding up of
the Corporation within the meaning of this Section 6.
Section
7. Consolidation, Merger,
etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series B
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series B Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section
8. No
Redemption. The Series B Preferred Stock shall not be
redeemable by the Corporation.
Section
9. Rank. The
Series B Preferred Stock shall rank, with respect to the payment of dividends
and the distribution of assets upon liquidation, dissolution or winding up,
junior to all series of any other class of the Corporation’s Preferred Stock,
except to the extent that any such other series specifically provides that it
shall rank on a parity with or junior to the Series B Preferred
Stock.
Section
10. Amendment. At
any time any shares of Series B Preferred Stock are outstanding, the Amended and
Restated Certificate of Incorporation of the Corporation shall not be further
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series B Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series B Preferred Stock, voting
separately as a single class.
Section
11. Fractional
Shares. Series B Preferred Stock may be issued in fractions of
a share that shall entitle the holder, in proportion to such holder’s fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series B
Preferred Stock.
* * *
IN
WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the
Corporation by the undersigned this 10th day of August, 2009.
ACCESS
INTEGRATED TECHNOLOGIES, INC.
|
||
By: |
/s/ Gary
Loffredo
|
|
Name: Gary
Loffredo
|
||
Title: Senior
Vice President
|
CERTIFICATE
OF AMENDMENT
TO
FOURTH AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
Access
Integrated Technologies, Inc., a corporation organized and existing under the
laws of the State of Delaware (the “Corporation”), does
hereby certify that:
1. This
Amendment to the Restated Certificate of Incorporation, as amended, of the
Corporation has been duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
2. This
Amendment to the Restated Certificate of Incorporation, as amended, of the
Corporation amends Article FOURTH of the Corporation’s Restated Certificate of
Incorporation, as amended, by deleting the existing Article FOURTH in its
entirety and substituting therefore a new Article FOURTH to read in its entirety
as follows:
FOURTH: CAPITALIZATION
Section
4.1 Authorized
Shares.
Upon the
effectiveness of the filing of the Certificate of Amendment to the Corporation’s
Restated Certificate of Incorporation, as amended (the “Certificate of
Incorporation”), first containing this provision with the Secretary of
State of the State of Delaware (the “Effective Time”), the
total number of shares of capital stock that the Corporation shall have
authority to issue is One Hundred Five Million (105,000,000) shares as follows:
(i) Ninety Million (90,000,000) shares of existing common stock, of which
Seventy-Five Million (75,000,000) shares shall be existing Class A Common Stock,
par value $0.001 per share (the “Old Class A Common
Stock”), and Fifteen Million (15,000,000) shares shall be existing Class
B Common Stock, par value $0.001 per share (the “Old Class B Common
Stock”); (ii) Ninety Million (90,000,000) shares of common stock, of
which Seventy-Five Million (75,000,000) shares shall be Class A Common Stock,
par value $0.001 per share (the “Class A Common
Stock”), and Fifteen Million (15,000,000) shares shall be Class B Common
Stock, par value $0.001 per share (the “ Class B Common
Stock,” and together with the Class A Common Stock, the “Common Stock”); and
(iii) Fifteen Million (15,000,000) shares of preferred stock, par value $0.001
per share (the “Preferred Stock”), of
which the Board of Directors shall have the authority by resolution or
resolutions to fix all of the powers, preferences and rights, and the
qualifications, limitations and restrictions of the Preferred Stock permitted by
the Delaware General Corporation Law and to divide the Preferred Stock into one
or more class and/or classes and designate all of the powers, preferences and
rights, and the qualifications, limitations and restrictions of each class
permitted by the Delaware General Corporation Law. Upon the
Effectiveness of the Reclassification (as defined below), the total number of
shares of capital stock that the Corporation shall have authority to issue is
One Hundred Five Million
(105,000,000)
shares as follows: (i) Ninety Million (90,000,000) shares of common stock, of
which Seventy-Five Million (75,000,000) shares shall be Class A Common Stock and
Fifteen Million (15,000,000) shares shall be Class B Common Stock; and (ii)
Fifteen Million (15,000,000) shares of Preferred Stock.
Section
4.2 Class A
Common Stock and Class B Common Stock.
Except as
otherwise provided by law or the Certificate of Incorporation, the holders of
the Class A Common Stock and the Class B Common Stock shall have all the same
rights and privileges as Common Stock, except that the holders of Class A Common
Stock and the Class B Common Stock shall be entitled to vote on all matters to
be voted on by the stockholders of the Corporation on the following basis: (i)
each share of the Class A Common Stock shall entitle the holder thereof to one
vote, and (ii) each share of Class B Common Stock shall entitle the holder
thereof to ten votes.
Each
share of Class B Common Stock may also be converted, at any time at the option
of the holder thereof, into one (1) validly issued, fully paid and
non-assessable share of Class A Common Stock (subject to adjustment to reflect
stock splits, consolidations, recapitalizations and
reorganizations). Each holder of Class B Common Stock that desires to
convert its shares of Class B Common Stock into shares of Class A Common Stock
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for the Class B Common Stock
and shall give written notice to the Corporation at such office that such holder
elects to convert the same and shall state therein the number of shares of Class
B Common Stock being converted. Thereupon the Corporation shall
promptly issue and deliver to such holder a certificate or certificates for the
number of shares of Class A Common Stock to which such holder is entitled,
together with a cash adjustment of any fraction of a share as hereinafter
provided. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate or certificates representing the shares of Class B Common Stock be
converted, and the person or entity entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Class A Common Stock on such
date.
At the
option of the holders of fifty-one (51%) percent of the shares of outstanding
Class B Common Stock, voting as a class, each share of Class B Common Stock
shall be converted (the “Class B Conversion”)
into one (1) validly issued, fully paid and non-assessable share of Class A
Common Stock (subject to adjustment to reflect stock splits, stock dividends,
consolidations, recapitalizations, reorganizations or other like
occurrences). All holders of record of shares of Class B Common
Stock, then outstanding shall be given at least ten (10) days' prior written
notice of the date fixed (the “Conversion Date”) and
place designated by the Corporation for mandatory conversion of all such shares
of Class B Common Stock, pursuant to this paragraph. Such notice
shall be sent by first-class or registered mail, postage prepaid, to each record
holder of Class B Common Stock, at such holder's address last shown on the
records of the Corporation or of any transfer agent for the Class B Common
Stock. Each holder of Class B Common Stock shall surrender the
certificate or certificates, duly endorsed, at the office of the Corporation or
any transfer agent for the Class B Common Stock by the Conversion
Date. Thereupon the Corporation shall promptly issue and deliver to
such holder a certificate or certificates for the number of shares of Class A
Common Stock to which such holder is entitled,
together
with a cash adjustment of any fraction of a share as hereinafter
provided. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate or certificates representing the shares of Class B Common Stock to
be converted, and the person or entity entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Class A Common Stock on such date; provided, however, that if such
certificate or certificates are not surrendered by such holder by the Conversion
Date, such conversion shall be deemed to have been made on the Conversion Date
and such holder thereafter shall be deemed to have a right to receive only such
number of shares of Class A Common Stock into which such holder's shares of
Class B Common Stock shall be converted in accordance herewith.
Section
4.3. Reclassification.
Immediately
following the Effective Time, (a) each share of Old Class A Common Stock issued
and outstanding immediately prior to the Effective Time shall be reclassified as
and converted into and shall become one share of Class A Common Stock and (b)
each share of Old Class B Common Stock issued and outstanding immediately prior
to the Effective Time shall be reclassified as and converted into and shall
become one share of Class B Common Stock (the foregoing, collectively, the
“Reclassification”).
The
Reclassification shall be deemed to occur immediately following the Effective
Time (the “Effectiveness of the
Reclassification”), regardless of when any certificate previously
representing such shares of Old Class A Common Stock or Old Class B Common
Stock, as the case may be (in each case, if such shares are held in certificated
form), are physically surrendered to the Corporation in exchange for
certificates representing shares of Class A Common Stock or Class B Common
Stock, respectively. Each certificate outstanding immediately prior
to the Effectiveness of the Reclassification representing shares of Old Class A
Common Stock or Old Class B Common Stock, as the case may be, shall, until
surrendered to the Corporation in exchange for a certificate representing such
new number of shares of Class A Common Stock or Class B Common Stock,
respectively, automatically represent from and after the Effectiveness of the
Reclassification the reclassified number of shares of Class A Common Stock or
Class B Common Stock, respectively.
Section
4.4. Transfer
Restrictions.
Section
4.4.1. Certain
Definitions.
As used
in this Section 4.4:
“Acquire” or “Acquisition” and
similar terms means the direct or indirect acquisition of record, legal,
beneficial or any other ownership of Corporation Securities by any means,
including, without limitation, (a) the exercise of any rights under any option,
warrant, convertible security, pledge or other security interest or similar
right to acquire shares, or (b) the entering into of any swap, hedge or other
arrangement that results in the acquisition of any of the economic consequences
of ownership of Corporation Securities if, as a result of such direct
or
indirect
acquisition, the acquirer would be considered an owner of Corporation Securities
under the direct, indirect or constructive ownership rules of Section 382 of the
Code.
“Affiliate” shall have
the meaning set forth in the Standstill Agreement.
“Business Day” means
any day, other than a Saturday, Sunday or day on which banks located in New
York, New York, are authorized or required by law to close.
“Code” means the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
“Corporation
Securities” means (a) shares of Common Stock, (b) shares of Preferred
Stock of any class or series of Preferred Stock, (c) warrants, rights or options
(including within the meaning of Treasury Regulation Section 1.382-2T(h)(4)(v)
(or any successor provision)) to purchase Stock, and (d) any other interests
that would be treated as Stock.
“Dispose” or “Disposition” means
any direct or indirect sale, transfer, assignment, conveyance, pledge or other
disposition or other action in any manner whatsoever, whether voluntary or
involuntary, by operation of law or otherwise, by any Person or group that
reduces the Percentage Stock Ownership of any Person or group.
“Effective Date” means
the date of filing of the Certificate of Amendment to the Certificate of
Incorporation first containing this provision.
“Entity” means an
entity within the meaning of Treasury Regulation Section 1.382-3(a)(1) (or any
successor provision).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exempt Person” means
(a) each of the Purchasers and their respective Affiliates so long as, prior to the
termination of the Standstill Agreement, the Purchasers (together with their
respective Affiliates) do not take any action that would violate Article 2 of
the Standstill Agreement or (b) any Existing Holder, unless and until
such time as such Existing Holder shall (i) have a Percentage Stock Ownership
that is more than the Existing Holder Ownership Cap of such Existing Holder or
(ii) no longer be a “5-percent shareholder” of the Corporation Securities
pursuant to Treasury Regulation Section 1.382-2T(g)(1) (or any successor
provision). Notwithstanding the foregoing, no Exempt Person shall
cease to be an Exempt Person solely as the result of an Acquisition of
Corporation Securities by the Corporation which, by reducing the number of
Corporation Securities outstanding, increases the Percentage Stock Ownership of
such Person.
“Exempt Transaction”
means the Acquisition of any Warrants (as defined in the Securities Purchase
Agreement) or Warrant Shares (as defined in the Warrants) prior to such time as
such Acquired warrants or Warrant Shares, as the case may be, have been
distributed and sold to the public pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144 promulgated by the
Securities and Exchange Commission pursuant to the Securities
Act.
“Existing Holder”
means any Person who, immediately prior to the Effective Date, is a “5-percent
shareholder” of the Corporation Securities pursuant to Treasury Regulation
Section 1.382-2T(g)(1) (or any successor provision).
“Existing Holder Initial
Ownership” means, with respect to any Existing Holder, the aggregate
Stock Ownership of such Existing Holder immediately prior to the Effective Time
(as reflected in the most recent Schedule 13D or Schedule 13G filed by such
Existing Holder prior to the Effective Time).
“Existing Holder Ownership
Cap” means, as determined from time to time with respect to any Existing
Holder, the sum of (a) the difference of (i) the Existing Holder Initial
Ownership of such Existing Holder minus (ii) the total shares of Stock that such
Existing Holder has Disposed of on or after the Effective Time plus (b) the difference (which difference shall in no event be less
than zero) of (i) 150,000 shares of Common Stock (subject to adjustment for any
stock split, reverse stock split, recapitalization or similar transaction) minus
(ii) the total shares of Stock that such Existing Holder has Acquired on or
after the Effective Time; provided, however that in no
event shall the Existing Holder Ownership Cap of such Existing Holder ever
exceed the Existing Holder Initial Ownership of such Existing
Holder.
“Five Percent
Shareholder” means a Person or group of Persons that is identified as a
“5-percent shareholder” of the Corporation Securities pursuant to Treasury
Regulation Section 1.382-2T(g)(1) (or any successor provision), but excluding
(a) any “direct public group” with respect to the Corporation, as that term is
defined in Treasury Regulation Section 1.382-2T(j)(2)(ii) (or any successor
provision), (b) any Exempt Person and (c) any Person or group of Persons that
would be a Five Percent Shareholder solely as a result of the Acquisition of
Corporation Securities in an Exempt Transaction.
“Percentage Stock
Ownership” and similar terms means the percentage Stock Ownership of any
Person or group for purposes of Section 382 of the Code as determined in
accordance with Treasury Regulation Section 1.382-2T(g), (h), (j) and (k) (or
any successor provisions); provided, however, that such
determination shall not include any Corporation Securities Acquired in an Exempt
Transaction.
“Person” means an
individual, corporation, estate, trust, association, limited liability company,
partnership, joint venture or similar organization, and also includes a
syndicate or group as those terms are used for the purposes of Section 13(d)(3)
of the Exchange Act.
“Prohibited Transfer”
means any purported Transfer of Corporation Securities to the extent that such a
Transfer is prohibited and/or void under this Article FOURTH.
“Purchasers” shall
have the meaning set forth in the Securities Purchase Agreement.
“Restriction Release
Date” means such date, after the Effective Date, that the Board of
Directors determines in good faith that it is in the best interests of the
Corporation and its stockholders for the transfer restrictions set forth in this
Article FOURTH to terminate.
“Restricted Holder”
means a Person or group of Persons that (a) is a Five Percent Shareholder and
Acquires or proposes to Acquire Corporation Securities (other than
an
Acquisition
of Corporation Securities in an Exempt Transaction), or (b) is proposing to
Acquire Corporation Securities (other than an Acquisition of Corporation
Securities in an Exempt Transaction), and following such proposed Acquisition of
Corporation Securities, would be a Five Percent Shareholder.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Securities Purchase
Agreement” means the Securities Purchase Agreement, dated as of August
11, 2009, by and between the Company and the Purchasers, as it may be amended or
modified from time to time.
“Standstill Agreement”
means the Standstill Agreement, dated as of August 11, 2009, by and between the
Company and Sageview Capital Master, L.P., as it may be amended or modified from
time to time.
“Stock” means any
interest that would be treated as “stock” of the Corporation pursuant to
Treasury Regulation Section 1.382-2T(f)(18) (or any successor
provision).
“Stock Ownership”
means any direct or indirect ownership of Stock, including any ownership by
virtue of application of constructive ownership rules, with such direct,
indirect and constructive ownership determined under the provisions of Section
382 of the Code.
“Tax Benefits” means
the net operating loss carryovers, capital loss carryovers, general business
credit carryovers, alternative minimum tax credit carryovers and foreign tax
credit carryovers, as well as any loss or deduction attributable to a “net
unrealized built-in loss” within the meaning of Section 382 of the Code, of the
Corporation or any direct or indirect subsidiary thereof.
“Transfer” means any
direct or indirect Acquisition, sale, transfer, assignment, conveyance, pledge
or other disposition or other action in any manner whatsoever, whether voluntary
or involuntary, by operation of law or otherwise, by any Person or group that
alters the Percentage Stock Ownership of any Person or group, or any attempt to
do any of the foregoing. A Transfer shall also include the creation or grant of
an option (including within the meaning of Treasury Regulation Section
1.382-2T(h)(4)(v) (or any successor provision)). A Transfer shall not include an
issuance or grant of Corporation Securities by the Corporation.
“Treasury Regulation”
means a Treasury Regulation promulgated under the Code.
Section
4.4.2. Transfer
Restrictions.
(a) From
and after the Effective Date and prior to the Restriction Release Date, no
Transfer shall be permitted, and any such purported Transfer shall be void ab initio, to the extent
that after giving effect to such purported Transfer (or any series of Transfers
of which such Transfer is a part), either (i) any Person or group of Persons
shall become a Five Percent Shareholder, or (ii) the Percentage Stock Ownership
interest in the Corporation of any Five Percent Shareholder shall be increased.
The prior sentence is not intended to prevent the Corporation Securities from
being DTC-eligible and shall not preclude the settlement of any
transactions
in the Corporation Securities entered into through the facilities of a national
securities exchange or any national securities quotation system, provided, that
if the settlement of the transaction would result in a Prohibited Transfer, such
Transfer shall nonetheless be a Prohibited Transfer.
(b) The
restrictions contained in this Article 4 are for the purposes of reducing the
risk that any “ownership change” (as defined in the Code) of the Corporation
Securities may limit the Corporation's ability to utilize its Tax Benefits. In
connection therewith, and to provide for effective policing of these provisions,
a Restricted Holder who proposes to Acquire Corporation Securities (other than
an Acquisition of Corporation Securities in an Exempt Transaction) shall, prior
to the date of such proposed Acquisition, request in writing (a “Request”) that the
Board of Directors of the Corporation (or a committee thereof that has been
appointed by the Board of Directors) review such proposed Acquisition and
authorize or not authorize such proposed Acquisition in accordance with this
Section 4.4.2(b) of Article 4. A Request shall be mailed or delivered
to the Secretary of the Corporation at the Corporation’s principal place of
business, or telecopied to the Corporation’s telecopier number at its principal
place of business. Such Request shall be deemed to have been received
by the Corporation when actually received by the Corporation. A
Request shall include (i) the name, address and telephone number of the
Restricted Holder, (ii) a description of the Restricted Holder’s direct and
indirect ownership of Corporation Securities, (iii) a description of the
Corporation Securities that the Restricted Holder proposes to Acquire, (iv) the
date on which such proposed Acquisition is expected to take place (or, if such
Acquisition is proposed to be made by a Five Percent Shareholder in a
transaction on a national securities exchange or any national securities
quotation system, a statement to that effect), (v) the name of the proposed
transferor of the Corporation Securities that the Restricted Holder proposes to
Acquire (or, if such Acquisition is proposed to be made by a Five Percent
Shareholder in a transaction on a national securities exchange or any national
securities quotation system, a statement to that effect), and (vi) a request
that the Board of Directors (or a committee thereof that has been appointed by
the Board of Directors) authorize, if appropriate, such Acquisition pursuant to
this Section 4.4.2(b) of Article 4. The Board of Directors may
authorize an Acquisition by a Restricted Holder, if it determines, in its sole
discretion, that, after taking into account the preservation of the Tax
Benefits, such Acquisition would be in the best interests of the Corporation and
its stockholders and, in such case, the restrictions set forth in Section
4.4.2(a) of this Article FOURTH shall not apply to such
Acquisition. Any determination by the Board of Directors not to
authorize a proposed Acquisition by a Restricted Holder shall cause such
proposed Acquisition to be deemed a Prohibited Transfer. The Board of
Directors may, in its sole discretion, impose any conditions that it deems
reasonable and appropriate in connection with authorizing any such Acquisition
by a Restricted Holder. In addition, the Board of Directors may, in
its sole discretion, require such representations from the Restricted Holder or
such opinions of counsel to be rendered by counsel selected by the Board of
Directors, in each case as to such matters as the Board of Directors may
determine and, in each such case, the restrictions set forth in Section 4.4.2(a)
of this Article FOURTH shall not apply to such Acquisition. Any
Restricted Holder who makes a Request to the Board of Directors shall reimburse
the Corporation, on demand, for all costs and expenses incurred by the
Corporation with respect to any proposed Acquisition of Corporation Securities,
including, without limitation, the Corporation’s costs and expenses incurred in
determining whether to authorize the proposed Acquisition, which costs may
include, but are not limited to,
any
expenses of counsel and/or tax advisors engaged by the Board of Directors to
advise the Board of Directors or deliver an opinion thereto.
Section
4.4.3. Treatment of
Excess Securities.
(a) No
employee or agent of the Corporation shall record any Prohibited Transfer, and
the purported transferee of a Prohibited Transfer (the “Purported
Transferee”) shall not be recognized as a stockholder of the Corporation
for any purpose whatsoever in respect of the Corporation Securities that are the
subject of the Prohibited Transfer (the “Excess Securities”).
The Purported Transferee shall not be entitled with respect to such Excess
Securities to any rights of a stockholder of the Corporation, including, without
limitation, the right to vote such Excess Securities and to receive dividends or
distributions, whether liquidating or otherwise, in respect
thereof. Once the Excess Securities have been acquired in a Transfer
that is not a Prohibited Transfer, such Corporation Securities shall cease to be
Excess Securities.
(b) If
the Board of Directors determines that a Prohibited Transfer has been recorded
by an agent or employee of the Corporation notwithstanding the prohibition in
Section 4.4.3(a) of this Article FOURTH, such recording and the Prohibited
Transfer shall be void ab
initio and have no legal effect and, upon written demand by the
Corporation, the Purported Transferee shall transfer or cause to be transferred
any certificate or other evidence of ownership of the Excess Securities within
the Purported Transferee's possession or control, together with any dividends or
other distributions that were received by the Purported Transferee from the
Corporation with respect to the Excess Securities (the “Prohibited
Distributions”), to an agent designated by the Board of Directors (the
“Agent”). In
the event of an attempted Prohibited Transfer involving the purchase or
Acquisition of Corporation Securities in violation of this Article FOURTH by a
Restricted Holder, the Agent shall thereupon sell to a buyer or buyers, which
may include the Corporation or the purported transferor, the Excess Securities
transferred to it in one or more arm's-length transactions (including over a
national securities exchange or national securities quotation system on which
the Corporation Securities may be traded); provided, however, that the
Agent, in its sole discretion, shall effect such sale or sales in an orderly
fashion and shall not be required to effect any such sale within any specific
time frame if, in the Agent's discretion, such sale or sales would disrupt the
market for the Corporation Securities, would adversely affect the value of the
Corporation Securities or would be in violation of applicable securities
laws. If the Purported Transferee has resold the Excess Securities
before receiving the Corporation's demand to surrender the Excess Securities to
the Agent, the Purported Transferee shall be deemed to have sold the Excess
Securities for the Agent, and shall be required to transfer to the Agent any
Prohibited Distributions and proceeds of such sale, except to the extent that
the Corporation grants written permission to the Purported Transferee to retain
a portion of such sales proceeds not exceeding the amount that the Purported
Transferee would have received from the Agent pursuant to Section 4.4.3(c) of
this Article FOURTH if the Agent, rather than the Purported Transferee, had
resold the Excess Securities.
(c) The
Agent shall apply any proceeds of a sale by it of Excess Securities and, if the
Purported Transferee had previously resold the Excess Securities, any amounts
received by it from a Purported Transferee, as follows: (i) first, to
reimburse itself to the extent necessary to cover its costs and expenses
incurred in accordance with its duties hereunder; (ii) second, to reimburse the
Purported Transferee for the amounts paid by the Purported Transferee for
the
Excess
Securities (or in the case of any Prohibited Transfer by gift, devise or
inheritance or any other Prohibited Transfer without consideration, the fair
market value, calculated on the basis of the closing market price for the
Corporation Securities on the day before the Prohibited Transfer), and (iii)
third, the remainder, if any, to the original transferor, or, if the original
transferor cannot be readily identified, to an entity designated by the
Corporation's Board of Directors that is described in Section 501(c) of the
Code, contributions to which must be eligible for deduction under each of
Sections 170(b)(1)(A), 2055 and 2522 of the Code. The recourse of any
Purported Transferee with respect of any Prohibited Transfer shall be limited to
the amount payable to the Purported Transferee pursuant to clause (ii) of this
Section 4.4.3(c) of this Article FOURTH. Except as may be required by
law, in no event shall the proceeds of any sale of Excess Securities pursuant to
this Article FOURTH inure to the benefit of the Corporation or the Agent, except
to the extent used to cover expenses incurred by the Agent in performing its
duties hereunder.
(d) In
the event of any Transfer which does not involve a transfer of securities of the
Corporation within the meaning of Delaware law (“Securities,” and
individually, a “Security”) but which
would cause a Five Percent Shareholder to violate a restriction on Transfers
provided for in this Article FOURTH, the application of Section 4.4.3(b)
and Section 4.4.3(c) shall be modified as described in this
Section 4.4.3(d). In such case, no such Five Percent Shareholder
shall be required to dispose of any interest that is not a Security, but such
Five Percent Shareholder and/or any Person whose ownership of Securities is
attributed to such Five Percent Shareholder shall be deemed to have disposed of
and shall be required to dispose of sufficient Securities (which Securities
shall be disposed of in the inverse order in which they were acquired) to cause
such Five Percent Shareholder, following such disposition, not to be in
violation of this Article FOURTH. Such disposition shall be deemed to
occur simultaneously with the Transfer giving rise to the application of this
provision, and such number of Securities that are deemed to be disposed of shall
be considered Excess Securities and shall be disposed of through the Agent as
provided in Section 4.4.3(b) and Section 4.4.3(c), except that the
maximum aggregate amount payable either to such Five Percent Shareholder, or to
such other Person that was the direct holder of such Excess Securities, in
connection with such sale shall be the fair market value of such Excess
Securities at the time of the purported Transfer. All expenses
incurred by the Agent in disposing of such Excess Stock shall be paid out of any
amounts due such Five Percent Shareholder or such other Person. The purpose of
this Section 4.4.3(d) is to extend the restrictions in
Section 4.4.2(a) and Section 4.4.3(a) to situations in which there is a
Five Percent Shareholder without a direct Transfer of Securities, and this
Section 4.4.3(d), along with the other provisions of this Article FOURTH,
shall be interpreted to produce the same results, with differences as the
context requires, as a direct Transfer of Corporation Securities.
(e) If
the Purported Transferee fails to surrender the Excess Securities or the
proceeds of a sale thereof to the Agent within thirty (30) days from the date on
which the Corporation makes a demand pursuant to Section 4.4.3(b) of this
Article FOURTH or any written demand with respect to a deemed disposition
pursuant to Section 4.4.3(d) of this Article FOURTH, then the Corporation may
take such actions as it deems necessary to enforce the provisions hereof,
including the institution of legal proceedings to compel such
surrender.
(f) If
any Person shall knowingly violate, or knowingly cause any other Person under
control of such Person (a “Controlled Person”)
to violate this Article FOURTH, then that Person
and any
Controlled Person shall be jointly and severally liable for, and shall pay to
the Corporation, such amount as will, after taking account of all taxes imposed
with respect to the receipt or accrual of such amount and all costs incurred by
the Corporation as a result of such violation, put the Corporation in the same
financial position as it would have been in had such violation not
occurred.
Section
4.4.4. Legends;
Compliance.
(a) All
certificates reflecting Corporation Securities on or after the Effective Date
shall, until the Restriction Release Date, bear a conspicuous legend in
substantially the following form:
THE
TRANSFER OF SECURITIES REPRESENTED HEREBY IS SUBJECT TO RESTRICTION PURSUANT TO
ARTICLE FOURTH OF THE RESTATED CERTIFICATE OF INCORPORATION OF ACCESS INTEGRATED
TECHNOLOGIES, INC. AS AMENDED AND IN EFFECT FROM TIME TO TIME, A COPY OF WHICH
MAY BE OBTAINED FROM THE CORPORATION UPON REQUEST.
(b) The
Corporation shall have the power to make appropriate notations upon its stock
transfer records and to instruct any transfer agent, registrar, securities
intermediary or depository with respect to the requirements of this Article
FOURTH for any uncertificated Corporation Securities or Corporation Securities
held in an indirect holding system. As a condition to the
registration of the Transfer of any Stock, any Person who is a beneficial, legal
or record holder of Stock, and any proposed transferee of such Stock and any
Person controlling, controlled by or under common control with the proposed
transferee of such Stock, shall provide such information as the Corporation may
request from time to time in order to determine compliance with this Article
FOURTH or the status of the Tax Benefits of the Corporation.
(c) Nothing
contained in this Article FOURTH shall limit the authority of the Board of
Directors of the Corporation to take such other action to the extent permitted
by law as it deems necessary or advisable to preserve the Corporation's Tax
Benefits. The Board of Directors of the Corporation shall have the
power to determine all matters necessary for determining compliance with this
Article 4, including, without limitation, determining (i) the identification of
Five Percent Shareholders and Restricted Holders, (ii) whether a Transfer or
proposed Transfer is a Prohibited Transfer, (iii) the Percentage Stock Ownership
in the Corporation of any Five Percent Shareholders and Restricted Holders, (iv)
whether an instrument constitutes a Corporation Security, (v) the amount (or
fair market value) due to a Purported Transferee, (vi) the interpretation of the
provisions of this Article FOURTH, and (vii) any other matters which the Board
of Directors deems relevant. Without limiting the generality of the foregoing,
for the purposes of determining the existence and identity of, and the amount of
Corporation Securities owned by, any Person or group of Persons, the Corporation
and the Board of Directors are entitled to rely conclusively on (a) the
existence and absence of filings of Schedules 13D or 13G under the Exchange Act
(or any similar schedules) as of any date, and (b) its actual knowledge of the
ownership of the Corporation Securities. In the case of an ambiguity
in the application of any of the provisions of this Article FOURTH, including
any definition used herein, the Board of Directors shall have the power to
determine the application of such
provisions
with respect to any situation based on its reasonable belief, understanding or
knowledge of the circumstances. In the event that this Article FOURTH requires
an action by the Board of Directors but fails to provide specific guidance with
respect to such action, the Board of Directors shall have the power to determine
the action to be taken so long as such action is not contrary to the provisions
of this Article FOURTH. All such actions, calculations,
interpretations and determinations that are done or made by the Board of
Directors in good faith shall be final, conclusive and binding on the
Corporation, the Agent, and all other parties to a Transfer; provided, however, that the
Board of Directors may delegate all or any portion of its duties and powers
under this Article FOURTH to a committee of the Board of Directors as it deems
advisable or necessary.
(d) Nothing
contained in this Article FOURTH shall be construed to give any Person other
than the Corporation or the Agent any legal or equitable right, remedy or claim
under this Article FOURTH. This Article FOURTH shall be for the sole
and exclusive benefit of the Corporation and the Agent.
(e) With
regard to any power, remedy or right provided herein or otherwise available to
the Corporation or the Agent provided under this Article FOURTH, (i) no waiver
will be effective unless expressly contained in a writing signed by the waiving
party; and (ii) no alternation, modification or impairment will be implied by
reason of any previous waiver, extension of time, delay or omission in exercise,
or other indulgence.
(f) If
any provision of this Article FOURTH or the application of any such provision to
any Person or under any circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Article FOURTH.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, this Certificate of Amendment to the Corporation’s Restated
Certificate of Incorporation, as amended, has been executed by a duly authorized
officer of the Corporation on this the 5th day
of October 2009.
Access
Integrated Technologies, Inc.
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By: |
/s/ A. Dale
Mayo
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Name:
A. Dale Mayo
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||
Title:
President, Chief Executive Officer and
Chairman
of the Board of Directors
|
CERTIFICATE
OF AMENDMENT
TO
FOURTH
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
The undersigned, being the President of
Access Integrated Technologies, Inc., a Delaware corporation (the
“Corporation”), pursuant to Section 242 of the General Corporation Law of the
State of Delaware, as amended (the “DGCL”), does hereby certify as
follows:
|
1.
|
Pursuant
to a unanimous written consent of the Board of Directors of the
Corporation (the “Board”), the Board adopted resolutions (the “Amending
Resolutions”) to further amend the Corporation’s Fourth Amended and
Restated Certificate of Incorporation of the Corporation, as filed with
the Delaware Secretary of State on November 14,
2003;
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|
2.
|
Pursuant
to a majority vote of the Corporation’s Shareholders in accordance with
Section 242 of the DGCL, the holders of the Corporation’s outstanding
capital stock voted in favor of the Amending Resolutions;
and
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|
3.
|
The
Amending Resolutions were duly adopted in accordance with Section 242 of
the DGCL.
|
NOW, THEREFORE, to effect the Amending
Resolutions, Article Fourth of the Certificate of Incorporation shall be deleted
in its entirety and replaced as follows:
“FOURTH: Capitalization: The
total number of shares of capital stock that the Corporation shall have
authority to issue is One Hundred Five Million (105,000,000) shares as
follows: (i) Ninety Million (90,000,000) shares of common stock, of
which Seventy-Five Million (75,000,000) shares shall be Class A Common Stock,
par value $0.001 per share (the “Class A Common Stock”), and Fifteen Million
(15,000,000) shares shall be Class B Common Stock, par value $0.001 per share
(the “Class B Common Stock”); and (ii) Fifteen Million (15,000,000) shares of
preferred stock, par value $0.001 per share (the “Preferred Stock”), of which
the Board of Directors shall have the authority by resolution or resolutions to
fix all of the powers, preferences and rights, and the qualifications,
limitations and restrictions of the Preferred Stock permitted by the Delaware
General Corporation Law and to divide the Preferred Stock into one or more class
and/or classes and designate all of the powers,
preferences
and rights, and the qualifications, limitations and restrictions of each class
permitted by the Delaware General Corporation Law.
Except as
otherwise provided by law or this Fourth Amended and Restated Certificate of
Incorporation, as amended from time to time (this “Certificate of
Incorporation”), the holders of the Class A Common Stock and the Class B Common
Stock, shall have all the same rights and privileges as Common Stock, except
that the holders of Class A Common Stock and the Class B Common Stock shall be
entitled to vote on all matters to be voted on by the stockholders of the
Corporation on the following basis: (i) each share of the Class A
Common Stock shall entitle the holder thereof to one vote, and (ii) each share
of Class B Common Stock shall entitle the holder thereof to ten
votes.
Each
share of Class B Common Stock may also be converted, at any time at the option
of the holder thereof, into one (1) validly issued, fully paid and
non-assessable share of Class A Common Stock (subject to adjustment to reflect
stock splits, consolidations, recapitalizations and
reorganizations). Each holder of Class B Common Stock that desires to
convert its shares of Class B Common Stock, into shares of Class A Common Stock
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for the Class B Common Stock
and shall give written notice to the Corporation at such office that such holder
elects to convert the same and shall state therein the number of shares of Class
B Common Stock being converted. Thereupon the Corporation shall
promptly issue and deliver to such holder a certificate or certificates for the
number of shares of Class A Common Stock to which such holder is entitled,
together with a cash adjustment of any fraction of a share as hereinafter
provided. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate or certificates representing the shares of Class B Common Stock be
converted, and the person or entity entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Class A Common Stock on such
date.
At the
option of the holders of fifty-one (51%) percent of the shares of outstanding
Class B Common Stock, voting as a class, each share of Class B Common Stock
shall be converted (the “Class B Conversion”) into one (1) validly issued, fully
paid and non-assessable share of Class A Common Stock (subject to adjustment to
reflect stock splits, stock dividends, consolidations, recapitalizations,
reorganizations or other like occurrences). All holders of record of
shares of Class B Common Stock, then outstanding shall be given at least ten
(10) days’ prior written notice of the date fixed (the “Conversion Date”) and
place designated by the Corporation for mandatory conversion of all such shares
of Class B
Common
Stock, pursuant to this paragraph. Such notice shall be sent by
first-class or registered mail, postage prepaid, to each record holder of Class
B Common Stock, at such holder’s address last shown on the records of the
Corporation or of any transfer agent for the Class B Common
Stock. Each holder of Class B Common Stock shall surrender the
certificate or certificates, duly endorsed, at the office of the Corporation or
any transfer agent for the Class B Common Stock by the Conversion
Date. Thereupon the Corporation shall promptly issue and deliver to
such holder a certificate or certificates for the number of shares of Class A
Common Stock to which such holder is entitled, together with a cash adjustment
of any fraction of a share as hereinafter provided. Such conversion
shall be deemed to have been made immediately prior to the close of business on
the date of such surrender of the certificate or certificates representing the
shares of Class B Common Stock to be converted, and the person or entity
entitled to receive the shares of Class A Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
of Class A Common Stock on such date; provided, however, that if such
certificate or certificates are not surrendered by such holder by the Conversion
Date, such conversion shall be deemed to have been made on the Conversion Date
and such holder thereafter shall be deemed to have a right to receive only such
number of shares of Class A Common Stock into which such holder’s shares of
Class B Common Stock shall be converted in accordance herewith.
Except as specifically set forth
herein, the Certificate of Incorporation shall not be amended, modified or
otherwise altered by this Certificate of Amendment.
IN WITNESS WHEREOF, the Corporation has
caused this Amendment to the Certificate of Incorporation of Access Integrated
Technologies, Inc. to be signed by A. Dale Mayo, its President, Chief Executive
Officer and Chairman of the Board, this 5th day
of October, 2009, who acknowledges that the foregoing is the act and deed of the
Corporation and that the facts stated herein are true.
By:
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/s/
A. Dale Mayo
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|||
Name:
|
A.
Dale Mayo
|
|||
Title:
|
President,
Chief Executive Officer and
|
|||
Chairman
of the Board of Directors
|
CERTIFICATE
OF AMENDMENT
TO
FOURTH
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ACCESS
INTEGRATED TECHNOLOGIES, INC.
_________________________
Pursuant
to
§ 242 of
the General Corporation Law
of the
State of Delaware
_________________________
The undersigned, being the President of
Access Integrated Technologies, Inc., a Delaware corporation (the
“Corporation”), pursuant to Section 242 of the General Corporation Law of the
State of Delaware, as amended (the “DGCL”), does hereby certify as
follows:
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1.
|
Pursuant
to a unanimous written consent of the Board of Directors of the
Corporation (the “Board”), the Board adopted resolutions (the “Amending
Resolutions”) to further amend the Corporation’s Fourth Amended and
Restated Certificate of Incorporation of the Corporation, as filed with
the Delaware Secretary of State on November 14, 2003 (together with any
subsequent amendments and certificates of designations, the “Certificate
of Incorporation”);
|
|
2.
|
Pursuant
to a majority vote of the Corporation’s Shareholders in accordance with
Section 242 of the DGCL, the holders of the Corporation’s outstanding
capital stock voted in favor of the Amending Resolutions;
and
|
|
3.
|
The
Amending Resolutions were duly adopted in accordance with Section 242 of
the DGCL.
|
NOW, THEREFORE, to effect the Amending
Resolutions:
1. All
references to “Access Integrated Technologies, Inc.” in the Certificate of
Incorporation shall be deleted and the phrase “Cinedigm Digital Cinema Corp.”
shall be inserted in their place.
2. Article
First of the Certificate of Incorporation shall be deleted in its entirety and
replaced as follows:
“FIRST: Name: The
name of the Corporation is:
|
“Cinedigm
Digital Cinema Corp.”
|
IN WITNESS WHEREOF, the Corporation has
caused this Amendment to the Certificate of Incorporation of Access Integrated
Technologies, Inc. to be signed by A. Dale Mayo, its President, Chief Executive
Officer and Chairman of the Board of Directors, this 5th day
of October, 2009, who acknowledges that the foregoing is the act and deed of the
Corporation and that the facts stated herein are true.
By:
|
/s/
A. Dale Mayo
|
|
Name:
|
A.
Dale Mayo
|
|
Title:
|
President,
Chief Executive Officer and
|
|
Chairman
of the Board of Directors
|