CERTIFICATE OF INCORPORATION
OF
RUFFTOWN ENTERTAINMENT, INC.
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FIRST: NAME. The name of the Corporation is: Rufftown Entertainment,
Inc.
SECOND: REGISTERED OFFICE. The address of the Corporation's registered
office in the State of Delaware is 222 Delaware Avenue, Suite 1200, County of
New Castle, City of Wilmington, State of Delaware 19801. The name of its
registered agent at such address is ATA Corporate Services, LLC.
THIRD: PURPOSES. The nature of the business or purposes of the
Corporation to be conducted or promoted 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 and to do all things and exercise all powers,
rights and privileges that a business corporation may now or hereafter be
organized or authorized to do or to exercise under the laws of the State of
Delaware. The Corporation is to have perpetual existence.
FOURTH: CAPITALIZATION. The total number of shares of stock which the
Corporation shall have authority to issue is 19,900 shares, consisting of 5,000
shares of Preferred Stock, having a par value of $0.001 per share and 14,900
shares of Common Stock having a par value of $0.001 per share, of which 10,000
shares will be classified as a series of Common Stock referred to as the "Voting
Common Stock" and 4900 shares will be classified as a series of Common Stock
referred to as the "Non-Voting Common Stock." Except with respect to their
respective voting and distribution rights as are provided in this Certificate of
Incorporation, all shares of Voting Common Stock and Non-Voting Common Stock are
to be treated as identical and in the same class of stock and shall entitle the
holders thereof to the same rights and privileges, including the right to share
equally in dividend payments and upon any liquidation of the Corporation.
Each class of capital stock shall have the voting powers, designations,
preferences and relative, participating, optional or other special
qualifications, limitations or restrictions thereof are set forth hereinafter:
(a) Except as otherwise provided by law and this Certificate of
Incorporation, the holders of Non-Voting Common Stock shall have no right in any
event to vote on any matter to be voted on by the stockholders of the
Corporation (including any election or removal of the directors of the
Corporation); PROVIDED, HOWEVER, that the Corporation may not take any of the
following actions unless approved by the written consent of at least a majority
of the issued and outstanding shares of Non-Voting Common Stock:
(1) liquidation or dissolution of the Corporation;
(2) merger or consolidation of the Corporation with or into any
corporation;
(3) sale of all or substantially all of the Corporation's assets;
(4) authorization or issuance of any additional shares of capital stock;
(5) amendment of this Certificate of Incorporation; or
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(6) amendment of the Corporation's Bylaws to alter any rights of the
holders of the Series A Preferred Stock or Non-Voting Common Stock.
This subsection (a) of this Article FOURTH as well as subsection (b) of this
Article FOURTH may not be amended or modified without the consent of the holders
of at least a majority of the outstanding shares of each of the Non-Voting
Common Stock and the Voting Common Stock, each voting as a separate class.
Except as provided in the preceding sentence or as otherwise provided by law,
the holders of Voting Common Stock shall vote as a class for the election or
removal of all directors of the Corporation, and on any other subject for which
holders of Common Stock shall be entitled to vote and the holders of the
Non-Voting Common Stock shall have no such right to vote. At any meeting of the
stockholders of the Corporation, the presence in person or by proxy of a
majority in number of the issued and outstanding shares of Voting Common Stock
shall be sufficient to constitute a quorum for the election of directors or
consideration of any other matter as to which the holders of Voting Common Stock
are entitled to vote. Holders of Voting Common Stock shall not cumulate their
votes in any election for directors and shall have one vote for each share of
Voting Common Stock held.
(b) Notwithstanding any other provision herein, except as set forth
in this subsection (b) of this Article FOURTH, if all authorized shares of
Non-Voting Common Stock have been issued, the holders of the outstanding shares
of Non-Voting Stock shall, as a class, be entitled to receive forty nine percent
(49%) of any distribution, including, but not limited to, a dividend or
liquidating distribution ("Distribution"). If less than all authorized shares of
Non-Voting Common Stock have been issued, the holders of each share of
Non-Voting Common Stock shall be entitled to receive one hundredth of one
percent (.001%) of any Distribution. The holders of the Non-Voting Common Stock
and Voting Common Stock, however, shall not be entitled to receive any
Distributions as long as the liquidating and distribution preference in an
amount not to exceed $48,000,000 and accrued dividends of any Preferred Stock
authorized pursuant to the terms of a Restructuring Agreement dated as of
October 1, 2007 between the Corporation and certain creditors remains unpaid.
Subject to the aforesaid preference, the holders of the shares of Voting Common
Stock and Non-Voting Common Stock shall receive any Distribution simultaneously.
Each holder shares of Voting Common Stock shall receive a pro rata portion of
any Distribution available to the holders Voting Common Stock as a class. The
amount available to the holders of the Voting Common Stock as a class shall be
an amount equal to the amount of the total Distribution less the amount of the
portion of such Distribution to be received by the holders of Non-Voting Common
Stock as calculated pursuant to this subsection (b) of this Article FOURTH .
(c) The Preferred Stock may be issued in one or more series, each of
which shall be distinctively designated, shall rank equally and shall be
identical in all respects except as otherwise provided in subsection (c) of this
Article FOURTH.
(d) Authority is hereby vested in the Board of Directors to issue from
time to time the Preferred Stock of any series and to state in the resolution or
resolutions providing for the issuance of shares of any series the voting
powers, if any, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions of
such series to the full extent now or hereafter permitted by the law of the
State of Delaware in respect of the matters set forth in the following clauses
(i) to (viii) inclusive:
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(i) the number of shares to constitute such series, and the distinctive
designations thereof;
(ii) the voting powers, full or limited, if any, of such series;
(iii) the rate of dividends payable on shares of such series, the
conditions on which and the times when such dividends are payable, the
preference to, or the relation to, the payment of the dividends payable
on any other class, classes or series of stock, whether cumulative or
non-cumulative and, if cumulative, the date from which dividends on
shares of such series shall be cumulative;
(iv) the redemption price or prices, if any, and the terms and conditions
on which shares of such series shall be redeemable;
(v) the requirement of any sinking fund or funds to be applied to the
purchase or redemption of shares of such series and, if so, the amount
of such fund or funds and the manner of application;
(vi) the rights of shares of such series upon the liquidation, dissolution
or winding up of, or upon any distribution of the assets of, the
Corporation;
(vii) the rights, if any, of the holders of shares of such series to
convert such shares into, or to exchange such shares for, shares of any
other class, classes or series of stock and the price or prices or the
rates of exchange and the adjustments at which such shares shall be
convertible or exchangeable, and any other terms and conditions of such
conversion or exchange; and
(viii) any other preferences and relative, participating, optional or other
special rights of shares of such series, and qualifications,
limitations or restrictions including, without limitation, any
restriction on an increase in the number of shares of any series
theretofore authorized and any qualifications, limitations or
restrictions of rights or powers to which share of any future series
shall be subject.
(e) The number of authorized shares of Preferred Stock may be increased
or decreased by the affirmative vote of the holders of a majority of the votes
of all classes of voting securities of the Corporation with a class vote of the
Preferred Stock, or any series thereof,
FIFTH: INCORPORATOR. The name and mailing address of the Incorporator
are as follows:
NAME MAILING ADDRESS
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Craig F. Zappetti 15th and Market Streets, 38th Floor
Centre Square West
Philadelphia, PA 19102
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SIXTH: ADDITIONAL POWERS OF BOARD OF DIRECTORS. The Board of Directors
shall have power, without stockholder action, to make By-Laws for the
Corporation and to amend, alter or repeal any By-Laws. except as provided in
subsection (a) of Article FOURTH.
The powers and authority herein conferred upon the Board of Directors
are in furtherance and not in limitation of those conferred by the laws of the
State of Delaware. In addition to the powers and authority herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware,
of this Certificate of Incorporation and of the By-Laws of the Corporation.
SEVENTH: VOTING BY BALLOT. Elections of Directors need not be by ballot
unless the By-Laws of the Corporation provide otherwise.
EIGHTH: RIGHT TO AMEND CERTIFICATE OF INCORPORATION. The Corporation
expressly reserves the right at any time and from time to time to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
and other provisions authorized by the laws of the State of Delaware at the time
in force may be added or inserted in this Certificate of Incorporation, in the
manner now or hereafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon, stockholders, directors or any
other persons whomsoever by and pursuant to this Certificate of Incorporation in
its present form or as hereafter amended are granted subject to the rights
reserved in this Article EIGHTH.
NINTH: A Director of the Corporation shall not be personally liable to
the Corporation or its stockholders (whether as holders of Voting Common Stock
or Non-Voting Common Stock) for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived any improper personal benefit.
If the Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then,
without further action by the Board of Directors or the stockholders, the
liability of a Director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as amended.
Any repeal or modification of this Article NINTH by the stockholders of the
Corporation shall be prospective only and shall not adversely affect any right
or protection of a Director of the Corporation existing at the time of such
repeal or modification. This Corporation shall, to the fullest extent permitted
by Delaware law as in effect from time to time, indemnify any person against all
liability and expense (including attorney's fees) incurred by reason of the fact
that he or she is or was a director or officer of this Corporation, or while
serving as a director or officer of this Corporation, he or she is or was
serving at the request of this Corporation as a director, officer, partner or
trustee of, or in any similar managerial or fiduciary position of, or an
employee or agent of: another corporation, partnership, joint venture, trust,
association or other entity. Expenses (including attorney's fees) incurred in
defending an action, suit or proceeding may be paid by this Corporation in
advance of the final disposition of such action, suit or proceeding to the full
extent and under the circumstances permitted by Delaware General Corporation
Law. This Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, fiduciary, or agent of this
Corporation against any liability asserted against and incurred by such person
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in any such capacity or arising out of such person's position, whether or not
this Corporation would have the power to indemnify against such liability under
the provisions of this Article NINTH. The indemnification provided by this
Article NINTH shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under this Certificate of Incorporation, any by-law,
agreement, vote of stockholders or disinterested directors, statute, or
otherwise, and shall inure to the benefit of their heirs, executors, and
administrators. The provisions of this Article NINTH shall not be deemed to
preclude this Corporation from indemnifying other persons from similar or other
expenses and liabilities as the board of directors or the stockholders may
determine in a specific instance or by resolution of general application.
TENTH: Whenever a compromise or an arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court or equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
ss. 291 of Title 8 of the Delaware General Corporation Law or on the application
of trustees in dissolution or of any receiver or receivers appointed for this
Corporation under ss. 279 of Title 8 of the Delaware General Corporation Law,
order a meeting of the creditors or class of creditors and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three fourths in value of the creditors or class of creditors,
and/or stockholders or class of stockholders of this Corporation, as the case
may be, agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this first day of October 2007.
_______________________(SEAL)
Craig F. Zappetti
Incorporator
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