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 Stock issued by
the Corporation that would be integrated with the other shares of Class A Common
Stock issued under this
Certificate Of Designations Of Series A
Preferred Stock
Page 1 of 3
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 “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
Certificate Of Designations Of Series A
Preferred Stock
Page 2 of
3
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.
IN
WITNESS WHEREOF, the undersigned duly authorized officer of the Corporation has
executed this Certificate of Designations on February 2, 2009.
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ACCESS
INTEGRATED TECHNOLOGIES, INC.
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By:
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/s/ A. Dale Mayo
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A.
Dale Mayo
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President
and Chief Executive Officer
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Certificate Of Designations Of Series A
Preferred Stock
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of
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