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).
“
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 5
th
day
of October 2009.
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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
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