EXHIBIT 4.2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ACCOM, INC.
Accom, Inc., a corporation duly organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
1. The amendment to the Corporation's Certificate of Incorporation set
forth below was duly adopted by the Board of Directors of the Corporation and
consented to by the stockholders of the Corporation in accordance with Section
242 of the General Corporation Law of the State of Delaware.
2. Article IV of the Corporation's Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE IV
This Corporation is authorized to issue two classes of stock
to be designated common stock ("Common Stock") and preferred stock
("Preferred Stock"). The total number of shares which the Corporation
is authorized to issue is Forty Two Million (42,000,000) shares. The
number of shares of Common Stock authorized to be issued is Forty
Million (40,000,000), par value $0.001 per share, and the number of
shares of Preferred Stock authorized to be issued is Two Million
(2,000,000), par value $0.001 per share.
The Preferred Stock may be issued from time to time in one or
more series, without further stockholder approval. The Board of
Directors is hereby authorized, the resolution or resolutions adopted
by the Board of Directors providing for the issuance of any wholly
unissued series of Preferred Stock, within the limitations and
restrictions stated in this Amended and Restated Certificate of
Incorporation to fix or alter the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices,
and the liquidation preferences of any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or any of them, and to increase or
decrease the number of shares of any series subsequent to the issue of
shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall
resume the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series."
3. Article VI of the Corporation's Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE VI
The total number of directors of the Corporation shall be not less than
five (5) nor more than nine (9), with the actual total number of
directors set from time to time exclusively by resolution of the Board
of Directors. The Board of Directors shall initially consist of six
members until changed by such a resolution. There shall be three
classes of directors (each, a "Class"), known as Class 1, Class 2 and
Class 3. The initial Class 1, Class 2 and Class 3 directors shall serve
in office as follows: Class 1 shall retire at the first annual meeting
of stockholders following the filing of the Corporation's Amended and
Restated Certificate of Incorporation (the "Effective Date"), Class 2
shall retire at the second annual meeting of stockholders following the
Effective Date, and Class 3 shall retire at the third annual meeting of
stockholders following the Effective Date. This annual sequence shall
be repeated thereafter. Each director in a Class shall be eligible for
re-election if nominated, and such director's seat shall be open for
election of a director, at the annual meeting of stockholders of the
Corporation at which such Class shall retire, to hold office for three
years or until his successor is elected or appointed.
Any additional directors elected or appointed shall be elected
or appointed to such Class as will ensure that the number of directors
in each Class remains as nearly equal as possible, and if all Classes
have an equal number of directors or if one Class has one director more
than the other two Classes, then any additional directors elected or
appointed shall be elected or appointed to the Class that does not have
more directors than any other Class and is subject to election at an
ensuing annual meeting before any other such Class.
Vacancies due to resignation, death, increases in the number
of directors, or any other cause shall be filled only by the Board of
Directors (unless there are no directors, in which case vacancies will
be filled by the stockholders) in accordance with the rule that each
Class of directors shall be as nearly equal in number of directors as
possible. Notwithstanding such rule, in the event of any change in the
authorized number of directors each director then continuing to serve
as such will nevertheless continue as a director of the Class of which
he or she is a member, until the expiration of his or her current term
or his earlier death, resignation or removal. If any newly created
directorship or vacancy on the Board of Directors, consistent with the
rule that the three Classes shall be as nearly equal in number of
directors as possible, may be allocated to one or two or more Classes,
then the Board of Directors shall allocate it to that of the available
Classes whose term of office is due to expire at the earliest date
following such allocation. When the Board of Directors fills a vacancy,
the director chosen to fill that vacancy shall be of the same Class as
the director he or she succeeds and shall hold office until such
director's successor shall have been elected and qualified or until
such director shall resign or shall have been removed. No reduction of
the
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authorized number of directors shall have the effect of removing any
director prior to the expiration of such director's term of office."
4. Article XII of the Corporation's Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE XII
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
and all rights conferred on stockholders herein are granted subject to
this reservation; provided, however, that any amendment of Article VI
or of this Article XII will require an affirmative vote of the holders
of sixty-six and two-thirds percent (66 2/3%) or more of the total
voting power of all outstanding shares of voting stock of the
Corporation."
4. Article XIII of the Corporation's Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE XIII
This corporation elects to be governed by Section 203 of the Delaware
General Corporation Law."
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Junaid Sheikh, its Chief Executive Officer, on this
20th day of July, 1999.
/s/ Junaid Sheikh
--------------------------------------
Junaid Sheikh
Chief Executive Officer
ATTEST:
/s/ Donald K. McCauley
- --------------------------------------
Donald K. McCauley
Secretary
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