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;
|
|
|
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, 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.
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 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 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]
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:
|
/s/
A. Dale Mayo
|
|
|
Name:
|
A.
Dale Mayo
|
|
|
Title:
|
President,
Chief Executive Officer and Chairman of the Board of
Directors
|