Exhibit
3.1
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
OF
B.H.I.T
INC.
B.H.I.T. Inc., a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST:
That
the Board of Directors of the Corporation, in action by unanimous written
consent dated September 18, 2009, duly adopted a resolution setting forth a
proposed amendment of the Restated Certificate of Incorporation of the
Corporation, as amended (the “Certificate of Incorporation”), declaring said
amendment to be advisable and stating that said amendment be presented to the
stockholders of the Corporation for their consideration. The
resolution setting forth the proposed amendment is as follows:
RESOLVED,
that, as set forth below, the Board hereby proposes that Article First of the
Certificate of Incorporation, as amended, of the Corporation (the “Certificate
of Incorporation”) be amended in its entirety to change the name of the
Corporation and that Article Third of the Certificate of Incorporation be
amended in its entirety to effectuate an increase of the authorized capital
stock of the Corporation to 76.0 million shares consisting of 75.0 million
shares of common stock and 1.0 million shares of blank check preferred
stock:
“FIRST: The
name of the Corporation is Banyan Rail Services Inc.”
“THIRD: (a)
Authorized Capital
Stock
. The aggregate number of shares of all classes of stock
that the Corporation is authorized to issue is 76,000,000 shares, consisting
of:
(i)
75,000,000 shares of common stock, par value $0.01 per share (collectively, the
“Common Stock”); and
(ii) 1,000,000
shares of serial preferred stock, par value $0.01 per share (collectively, the
“Preferred Stock”).
(b)
Common
Stock
.
(i)
Powers, Preferences and
Rights
. Except as may otherwise be provided by this
Certificate of Incorporation, as may be amended from time to time by resolutions
of the Board of Directors designating a class or series of Preferred Stock
pursuant to Section 3(c) hereof (this “Certificate of Incorporation”), or by the
Delaware General Corporation Law, the powers, preferences and rights of the
Common Stock, and the qualifications, limitations or restrictions thereof, shall
be in all respects identical.
(ii)
Voting
Rights
. Except as may otherwise be provided by this
Certificate of Incorporation or by the Delaware General Corporation Law, (A) all
rights to vote and all voting power shall be vested exclusively in the holders
of the Common Stock and (B) each holder of Common Stock shall be entitled
to one vote for each share held of record on the applicable record date on all
matters presented for a vote of the stockholders of the Corporation, including,
without limitation, the election of directors.
(iii)
Dividends
. Except
as may otherwise be provided by this Certificate of Incorporation or by the
Delaware General Corporation Law, if, as and when dividends on the Common Stock
are declared payable from time to time by the Board of Directors out of funds
legally available therefor as provided in this Section 3(b)(iii), whether
payable in cash, property, stock or other securities, the holders of Common
Stock shall be entitled to share equally, on a per share basis, in such
dividends.
(iv)
Liquidating
Distributions
. Upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, or upon any sale or
conveyance of all or substantially all of the assets of the Corporation, after
payment or provision for payment of all the liabilities of the Corporation and
the expenses of liquidation, and after the holders of the Preferred Stock shall
have been paid in full the amounts, if any, to which they are entitled or a sum
sufficient for such payment in full shall have been set aside, the remaining
assets of the Corporation available for distribution shall be distributed
ratably to the holders of the Common Stock in accordance with their respective
rights and interests. For the purpose of this Section 3(b)(iv),
a merger, consolidation, sale or conveyance shall not be deemed to be a
liquidation or winding up of the Corporation unless the transaction provides for
the cessation of the business of the Corporation.
(c)
Preferred
Stock
.
(i)
Designations by Board of
Directors
. The Preferred Stock may be issued from time to time
in one or more classes or series with such voting rights, full or limited, or
without voting rights, and with such designations, preferences and relative,
participating, optional or special rights, and qualifications, limitations or
restrictions as are stated herein and as shall be stated and expressed in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors as hereinafter prescribed.
(ii)
Terms of the Preferred
Stock
. Subject to the rights of the holders of the Common
Stock, authority is hereby expressly granted to and vested in the Board of
Directors or any designated committee thereof to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, to determine
and take necessary proceedings to fully effectuate the issuance and redemption
of any such Preferred Stock and, with respect to each class or series of
Preferred Stock, to fix and state from time to time, by resolution or
resolutions providing for the issuance thereof, the following:
(A)
the
number of shares to constitute the class or series and the designations
thereof;
(B)
whether
the class or series is to have voting rights, full or limited, or to be without
voting rights;
(C)
the
preferences and relative, participating, optional or special rights, if any, and
qualifications, limitations or restrictions thereof, if any, of the class or
series;
(D)
whether
the shares of the class or series will be redeemable and, if redeemable, the
redemption price or prices and the time or times at which, and the terms and
conditions upon which, such shares will be redeemable and the manner of
redemption;
(E)
whether
the shares of the class or series will be subject to the operation of retirement
or sinking funds to be applied to the purchase or redemption of such shares for
retirement and, if such retirement or sinking funds are to be established, the
annual amount thereof and the terms and conditions relative to the operation
thereof;
(F)
the
dividend rate, whether dividends are payable in cash, stock or otherwise, the
conditions upon which and the times when such dividends are payable, the
preference or relation to the payment of dividends on any other class or series
of stock, whether or not such dividends will be cumulative or noncumulative and,
if cumulative, the date or dates from which such dividends will
accumulate;
(G)
the
preferences, if any, and the amounts thereof that the holders of the class or
series will be entitled to receive upon the voluntary or involuntary
dissolution, liquidation or winding up of, or upon any distribution of the
assets of, the Corporation;
(H)
whether
the shares of the class or series will be convertible into, or exchangeable for,
the shares of any other class or classes, or of any other series of the same or
any other class or classes, of stock of the Corporation and the conversion price
or prices, or ratio or ratios, or rate or rates, at which such conversion or
exchange may be made, with such adjustments, if any, as shall be expressed or
provided for in such resolution or resolutions; and
(I)
such
other special rights and protective provisions with respect to the class or
series as the Board of Directors or any designated committee thereof may deem
advisable.
The
shares of each class or series of Preferred Stock may vary from the shares of
any other class or series thereof in any or all of the foregoing
respects. The Board of Directors or any designated committee thereof
may from time to time increase the number of shares of Preferred Stock
designated for any existing class or series by a resolution adding to such class
or series authorized but unissued shares of Preferred Stock not designated for
any other class or series thereof. The Board of Directors or any
designated committee thereof may from time to time decrease the number of shares
of Preferred Stock designated for any existing class or series by a resolution
subtracting from such class or series any unissued shares of Preferred Stock
designated for such class or series, and the shares so subtracted shall become
authorized, unissued and undesignated shares of Preferred Stock.
SECOND:
That,
thereafter, in accordance with Section 228 of the General Corporation Law of the
State of Delaware, said amendment of the Corporation’s Certificate of
Incorporation was duly adopted by written consent of the holders of a majority
of the outstanding stock of the Corporation entitled to vote on the
matter.
THIRD:
That said amendment was duly adopted in accordance with the applicable
provisions of Section 242 of the General Corporation Law of the State of
Delaware; and
FOURTH:
That
the capital of the Corporation shall not be reduced under or by reason of said
amendment.
IN WITNESS WHEREOF,
the
Corporation has caused this Certificate of Amendment to be signed by its duly
elected officer on the 4
th
day of
January, 2010.
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B.H.I.T INC.
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By:
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/s/
C.
Lawrence Rutstein
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Its: Vice
President of
Administration
and Secretary
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