New Jersey Division of Revenue
Certificate of Amendment to the Restated Certificate of Incorporation
Pursuant to the provisions of Sections 14A:7, 14A:9-1(d), 14A:9-2(4) and
14A:9-4(3), Corporations, General, of the New Jersey Statutes, the undersigned
corporation executes the following Certificate of Amendment to its Certificate
of Incorporation:
1. The name of the corporation is Mediavest, Inc. (the "Corporation").
2. The following Certificate of Amendment to the Restated Certificate
of Incorporation of the Corporation (the "Certificate of Amendment")
was approved by the board of directors of the Corporation (the
"Board") on August 3, 2006:
Resolved, that Article III (a) of the Restated Certificate of
Incorporation of the Corporation be amended to read as follows:
"a. The total number of shares of capital stock which the
Corporation is authorized to issue is One Hundred and One Million
(101,000,000) shares, consisting of One Hundred Million (100,000,000)
shares of common stock, $0.0001 par value per share ("Common Stock"), and
One Million (1,000,000) shares of preferred stock, $0.0001 par value per
share ("Preferred Stock").
There is hereby created, out of the 1,000,000 shares of Preferred Stock of
the Corporation remaining authorized, unissued and undesignated, a series
of the Preferred Stock consisting of 100,000 shares, which series shall
have the following powers, designations, preferences and relative,
participating, optional or other rights, and the following qualifications,
limitations and restrictions (in addition to any powers, designations,
preferences and relative, participating, optional or other rights, and any
qualifications, limitations and restrictions, set forth in this
Certificate of Incorporation which are applicable to the Preferred Stock):
SECTION 1 Designation of Amount.
(a) One hundred thousand (100,000) shares of Preferred Stock shall be, and
hereby are, designated the "Series A Convertible Preferred Stock" (the
"Series A Preferred Stock"), par value .0001 per share.
(b) Subject to the requirements of the NJBCA, the Certificate of
Incorporation and this Certificate of Designation, the number of shares of
Preferred Stock that are designated as Series A Preferred Stock may be
increased or decreased by vote of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Series A Preferred Stock
to a number less than the number of such shares then outstanding plus the
number of such shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
other outstanding securities issued by the Corporation that are
convertible into or exercisable for Series A Preferred Stock. Any shares
of Series A Preferred Stock converted, redeemed, purchased or otherwise
acquired by the Corporation in any manner whatsoever shall, automatically
and without further action, be retired and canceled promptly after the
acquisition thereof.
SECTION 2 Certain Definitions.
Unless the context otherwise requires, the terms defined in this Section 2
shall have, for all purposes of this resolution, the meanings specified
(with terms defined in the singular having comparable meanings when used
in the plural).
"Affiliate" shall mean, with respect to any person, any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person and, in the case of a
person who is an individual, shall include (i) members of such specified
person's immediate family (as defined in Instruction 2 of Item 404(a) of
Regulation S-K under the Securities Act) and (ii) trusts, the trustee and
all beneficiaries of which are such specified person or members of such
person's immediate family as determined in accordance with the foregoing
clause (i). For the purposes of this definition, "control," when used with
respect to any person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to
the foregoing.
"Common Stock" shall mean the common stock, par value $.0001 per share, of
the Corporation.
"Conversion Date" shall have the meaning ascribed to such term in Section
6(d).
"Conversion Price" shall mean the Original Purchase Price of each share of
Common Stock, subject to adjustment from time to time in accordance with
Section 6(c).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Initial Issue Date" shall mean the date that shares of Series A Preferred
Stock are first issued by the Corporation.
"NJBCA" shall have the meaning set forth in the preamble to this
Certificate of Designation.
"Original Purchase Price" shall mean the per share purchase price for a
share of Series A Preferred Stock of $1.00, or such other price set forth
in the Purchase Agreement or other subscription agreements pursuant to
which Series A Preferred Stock is sold.
"person" shall mean any individual, partnership, company, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Preferred Stock" shall have the meaning set forth in the preamble to this
Certificate of Designation.
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"Purchase Agreement" shall mean the Series A Convertible Preferred Stock
Purchase Agreement, dated as of October ___, 2006, by and between the
Corporation and the purchaser identified therein.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Series A Preferred Stock" shall have the meaning set forth in Section 1.
"Series A Recapitalization Event" shall mean any stock dividend, stock
split, combination, reorganization, recapitalization, reclassification, or
other similar event involving a change in the capital structure of the
Series A Preferred Stock.
"Subsidiary" means, with respect to any person, (a) a company a majority
of whose capital stock with voting power, under ordinary circumstances, to
elect directors is at the time, directly or indirectly, owned by such
person, by a subsidiary of such person, or by such person and one or more
subsidiaries of such person, (b) a partnership in which such person or a
subsidiary of such person is, at the date of determination, a general
partner of such partnership, or (c) any other person (other than a
company) in which such person, a subsidiary of such person or such person
and one or more subsidiaries of such person, directly or indirectly, at
the date of determination thereof, has (i) at least a majority ownership
interest, (ii) the power to elect or direct the election of the directors
or other governing body of such person, or (iii) the power to direct or
cause the direction of the affairs or management of such person. For
purposes of this definition, a person is deemed to own any capital stock
or other ownership interest if such person has the right to acquire such
capital stock or other ownership interest, whether through the exercise of
any purchase option, conversion privilege or similar right.
SECTION 3 Voting Rights.
(a) General. Except as otherwise provided by the NJBCA and in addition to
any voting rights provided by the NJBCA or other applicable law, the
holders of Series A Preferred Stock shall be entitled to vote (or render
written consents) together with the holders of the Common Stock and any
other class or series of capital stock of the Corporation entitled to vote
together with the holders of the Common Stock as a single class on all
matters submitted for a vote of (or written consents in lieu of a vote as
permitted by the NJBCA, the Certificate of Incorporation and the Bylaws)
holders of Common Stock; and shall have such other voting rights as are
specified in the Certificate of Incorporation and this Certificate of
Designation. When voting together with the holders of Common Stock, each
share of Series A Preferred Stock shall entitle the holder thereof to cast
one vote for each vote that such holder would be entitled to cast had such
holder converted its Series A Preferred Stock into shares of Common Stock
as of the record date for determining the stockholders of the Corporation
eligible to vote on any such matter or, if no such record date is
established, at the date such vote is taken or any written consent of
stockholders is solicited. The holders of Series A Preferred Stock shall
be entitled to receive notice of any stockholders' meeting in accordance
with the Certificate of Incorporation and Bylaws of the Corporation.
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(b) Waivers. Except to the extent otherwise provided in this Certificate
of Designation or required by the NJBCA, the holders of the Series A
Preferred Stock may, via affirmative vote or written consent in lieu
thereof, waive any rights of the holders of the Series A Preferred Stock
set forth in this Certificate of Designation.
SECTION 4 Dividends.
(a) Dividend Amount. If the Board of Directors shall declare a dividend
payable upon the then outstanding shares of Common Stock, the holders of
the outstanding shares of Series A Preferred Stock shall be entitled to
the amount of dividends on the Series A Preferred Stock as would be
declared payable on the largest number of whole shares of Common Stock
into which the shares of Series A Preferred Stock held by each holder
thereof could be converted pursuant to the provisions of Section 6 hereof,
such number to be determined as of the record date for determination of
holders of Common Stock entitled to receive such dividend or, if no such
record date is established, as of the date of such dividend. Such
determination of "whole shares" shall be based upon the aggregate number
of shares of Series A Preferred Stock held by each holder, and not upon
each share of Series A Preferred Stock so held by the holder.
(b) Distributions Other than Cash. Whenever the distributions provided for
in this Section 4 shall be payable in property other than cash, the value
of such distribution shall be the fair market value thereof as determined
in good faith by the Board of Directors. All distributions (including
distributions other than cash) made hereunder shall be made pro rata to
the holders of Series A Preferred Stock.
(c) Equitable Adjustments. All numbers relating to the calculation of
dividends shall be subject to an equitable adjustment in the event of any
Series A Recapitalization Event.
SECTION 5 Liquidation Preference.
(a) Liquidation Preference of Series A Preferred Stock. In the event of
any liquidation, dissolution, or winding up of the Corporation, whether
voluntary or involuntary, or in the event of its insolvency, the holders
of Series A Preferred Stock shall be entitled to have set apart for them,
or to be paid, out of the assets of the Corporation available for
distribution to stockholders (whether such assets are capital, surplus or
earnings) after provision for payment of all debts and liabilities of the
Corporation in accordance with the NJBCA, before any distribution or
payment is made with respect to any shares of Common Stock or any other
class or series of capital stock of the Corporation designated to be
junior to the Series A Preferred Stock and subject to the liquidation
rights and preferences of any class or series of Preferred Stock
designated to be senior to, or on a parity with, the Series A Preferred
Stock with respect to liquidation preferences, an amount equal to the
greater of (i) $10.00 per share of Series A Preferred Stock (which amount
shall be subject to an equitable adjustment in the event of any Series A
Recapitalization Event) and (ii) such amount as would have been payable on
the largest number of whole shares of Common Stock into which the shares
of Series A Preferred Stock held by each holder thereof could have been
converted immediately prior to such event of liquidation, dissolution or
winding up pursuant to the provisions of Section 6 hereof.
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(b) Insufficient Assets. If, upon any liquidation, dissolution, or winding
up of the Corporation, whether voluntary or involuntary, the assets
legally available for distribution among the holders of the Series A
Preferred Stock shall be insufficient to permit payment to such holders of
the full preferential amount as provided for in Section 5(a) above, then
such holders shall share ratably in any distribution of available assets
according to the respective amounts which would otherwise be payable with
respect to the shares of Series A Preferred Stock held by them upon such
liquidating distribution if all amounts payable on or with respect to such
shares were paid in full, based upon the aggregate liquidation value
payable upon all shares of Series A Preferred Stock then outstanding.
(c) Cash-Out Election.
(i) Each holder of Series A Preferred Stock may elect, by written notice
to the Corporation given within 10 days after any such transaction is
consummated, to treat any of the following transactions as a dissolution
or winding up of the Corporation for the purposes of this Section 5: (1) a
consolidation or merger of the Corporation with or into any other
corporation or corporations, (2) a sale of all or substantially all of the
assets of the Corporation, (3) the issuance and/or sale by the Corporation
in a single or integrated transaction of shares of Common Stock (or
securities convertible into shares of Common Stock) constituting a
majority of the shares of Common Stock outstanding immediately following
such issuance (treating all securities convertible into shares of Common
Stock as having been fully converted and all options and other rights to
acquire shares of Common Stock or securities convertible into shares of
Common Stock as having been fully exercised) and (4) any other form of
acquisition or business combination where the Corporation is the target of
such acquisition and where a change in control occurs such that the person
or entity seeking to acquire the Corporation has the power to elect a
majority of the Board of Directors as a result of the transaction (each
such event an "Acquisition"); provided, however, that each holder of
Series A Preferred Stock shall have the right to elect the benefits of the
provisions of Section 6(c)(iv) hereof in lieu of receiving payment in
liquidation, dissolution or winding up of the Corporation pursuant to this
Section 5.
(ii) the provisions of this Section 5(c) shall not apply to any
reorganization, merger or consolidation involving (1) only a change in the
state of incorporation of the Corporation, or (2) a merger of the
Corporation with or into a wholly-owned subsidiary of the Corporation that
is incorporated in the United State of America.
(d) Distributions Other than Cash. Whenever the distribution provided for
in this Section 5 shall be payable in property other than cash, the value
of such distribution shall be the fair market value thereof as determined
in good faith by the Board of Directors of the Corporation. All
distributions (including distributions other than cash) made hereunder
shall be made pro rata to the holders of Series A Preferred Stock.
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(e) Equitable Adjustments. The amounts to be paid or set aside for payment
as provided above in this Section 5 shall be proportionately increased or
decreased in inverse relation to the change in the number of outstanding
shares resulting from any Series A Recapitalization Event.
SECTION 6 Conversion Rights.
(a) General. Subject to and upon compliance with the provisions of this
Section 6, each holder of shares of Series A Preferred Stock shall be
entitled, at its option, at any time, to convert all or any such shares of
Series A Preferred Stock into the number of fully paid and nonassessable
shares of Common Stock equal to the number obtained by dividing (i) the
Original Purchase Price of such Series A Preferred Stock, plus the amount
of any accumulated but unpaid dividends as of the Conversion Date by (ii)
the Conversion Price in effect at the close of business on the Conversion
Date (determined as provided in this Section 6).
(b) Fractions of Shares. No fractional shares of Common Stock shall be
issued upon conversion of shares of Series A Preferred Stock. If more than
one share of Series A Preferred Stock shall be surrendered for conversion
at one time by the same holder, the number of full shares of Common Stock
to be issued shall be computed on the basis of the aggregate number of
shares of Series A Preferred Stock so surrendered. Instead of any
fractional shares of Common Stock which would otherwise be issuable upon
conversion of any shares of Series A Preferred Stock, the Corporation
shall pay a cash adjustment in respect of such fractional share in an
amount equal to the product of such fraction multiplied by the fair market
value of one share of Common Stock on the Conversion Date as determined in
good faith by the Board of Directors.
(c) Adjustments to Conversion Price. The Conversion Price shall also be
subject to adjustment from time to time as follows:
(i) Upon Stock Dividends, Subdivisions or Splits. If, at any time
after the date hereof, the number of shares of Common Stock outstanding is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, following the
record date for the determination of holders of Common Stock entitled to
receive such stock dividend, or to be affected by such subdivision or
split-up, the Conversion Price shall be appropriately decreased so that
the number of shares of Common Stock issuable on conversion of Series A
Preferred Stock shall be increased in proportion to such increase in
outstanding shares.
(ii) Upon Combinations. If, at any time after the date hereof, the
number of shares of Common Stock outstanding is decreased by a combination
of the outstanding shares of Common Stock into a smaller number of shares
of Common Stock, then, following the record date to determine shares
affected by such combination, the Conversion Price shall be appropriately
increased so that the number of shares of Common Stock issuable on
conversion of each share of Series A Preferred Stock shall be decreased in
proportion to such decrease in outstanding shares.
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(iii) Capital Reorganization or Reclassification. If the Common
Stock issuable upon the conversion of the Series A Preferred Stock shall
be changed into the same or different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination or shares of stock
dividend provided for elsewhere in this Section 6(c), or the sale of all
or substantially all of the Corporation's properties and assets to any
other person), then and in each such event the holder of each share of
Series A Preferred Stock shall have the right thereafter to convert such
share into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other
change by holders of the number of shares of Common Stock into which such
shares of Series A Preferred Stock might have been converted, as the case
may be, immediately prior to such reorganization, reclassification or
change, all subject to further adjustment as provided herein.
(iv) Capital Reorganization, Merger or Sale of Assets. If at any
time or from time to time there shall be a capital reorganization of the
Common Stock (other than a subdivision, combination, reclassification, or
exchange of shares provided for elsewhere in this Section 6) or a merger
or consolidation of the Corporation with or into another corporation, or
the sale of all or substantially all of the Corporation's properties and
assets to any other person, then, as a part of such reorganization,
merger, or consolidation or sale, provision shall be made so that holders
of Series A Preferred Stock, as the case may be, shall thereafter be
entitled to receive upon conversion of the Series A Preferred Stock, the
number of shares of stock or other securities or property of the
Corporation, or of the successor corporation resulting from such merger,
consolidation or sale, to which such holder would have been entitled if
such holder had converted its shares of Series A Preferred Stock
immediately prior to such capital reorganization, merger, consolidation or
sale. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 6(c) with respect to the
rights of the holders of the Series A Preferred Stock after the
reorganization, merger, consolidation or sale to the end that the
provisions of this Section 6(c), including adjustment of the Conversion
Price then in effect for the Series A Preferred Stock and the number of
shares issuable upon conversion of the Series A Preferred Stock) shall be
applicable after that event in as nearly equivalent a manner as may be
practicable.
(v) Deferral in Certain Circumstances. In any case in which the
provisions of this Section 6(c) shall require that an adjustment shall
become effective immediately after a record date of an event, the
Corporation may defer until the occurrence of such event (1) issuing to
the holder of any Series A Preferred Stock converted after such record
date and before the occurrence of such event the shares of capital stock
issuable upon such conversion by reason of the adjustment required by such
event and issuing to such holder only the shares of capital stock issuable
upon such conversion before giving effect to such adjustments, and (2)
paying to such holder any amount in cash in lieu of a fractional share of
capital stock pursuant to Section 6(b) above; provided, however, that the
Corporation shall deliver to such holder an appropriate instrument or due
bills evidencing such holder's right to receive such additional shares and
such cash.
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(d) Exercise of Conversion Privilege. In order to exercise the conversion
privilege, the holder of any share of Series A Preferred Stock shall
surrender the certificate evidencing such share of Series A Preferred
Stock, duly endorsed or assigned to the Corporation in blank, at any
office or agency of the Corporation maintained for such purpose,
accompanied by written notice to the Corporation at such office or agency
that the holder elects to convert such Series A Preferred Stock or, if
less than the entire amount thereof is to be converted, the portion
thereof to be converted. Series A Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the date (the
"Conversion Date") of surrender of such shares of Series A Preferred Stock
for conversion in accordance with the foregoing provisions, and at such
time the rights of the holder of such shares of Series A Preferred Stock
as a holder shall cease, and the person or persons entitled to receive the
Common Stock issuable upon conversion shall be treated for all purposes as
the record holder or holders of such Common Stock as and after such time.
As promptly as practicable on or after the Conversion Date, the
Corporation shall issue and shall deliver at any office or agency of the
Corporation maintained for the surrender of Series A Preferred Stock a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of
a share, as provided in Section 6(b). In the case of any certificate
evidencing shares of Series A Preferred Stock that is converted in part
only, upon such conversion the Corporation shall also execute and deliver
a new certificate evidencing the number of shares of Series A Preferred
Stock that are not converted.
(e) Notice of Adjustment of Conversion Price. Whenever the provisions of
Section 6(c) require that the Conversion Price be adjusted as herein
provided, the Corporation shall compute the adjusted Conversion Price in
accordance with Section 6(c) and shall prepare a certificate signed by the
Corporation's chief executive officer or chief financial officer setting
forth the adjusted Conversion Price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for such purpose
for conversion of shares of Series A Preferred Stock and mailed by the
Corporation at its expense to all holders of Series A Preferred Stock at
their last addresses as they shall appear in the stock register.
(f) Corporation to Reserve Common Stock. The Corporation shall at all
times reserve and keep available, free from preemptive rights, out of the
authorized but unissued Common Stock or out of the Common Stock held in
treasury, for the purpose of effecting the conversion of Series A
Preferred Stock, the full number of shares of Common Stock then issuable
upon the conversion of all outstanding shares of Series A Preferred Stock.
Before taking any action that would cause an adjustment reducing the
conversion price below the then par value (if any) of the shares of Common
Stock deliverable upon conversion of the Series A Preferred Stock, the
Corporation will take any corporate action that, in the opinion of its
counsel, is necessary in order that the Corporation may validly and
legally issue fully paid and non-assessable shares of Common Stock at such
adjusted conversion price.
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(g) Taxes on Conversions. The Corporation will pay any and all original
issuance, transfer, stamp and other similar taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion
of Series A Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a
name other than that of the holder of the share(s) of Series A Preferred
Stock to be converted, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Corporation the
amount of any such tax, or has established to the satisfaction of the
Corporation that such tax has been paid."
3. The number of shares outstanding at the time of the adoption of the
Certificate of Amendment was: 4,000,000. The total number of shares entitled to
vote thereon was : 4,000,000.
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4. The number of shares voting for and against the Certificate of Amendment is
as follows:
Shares Voting for Amendment Shares Voting Against Amendment
3,720,000 None
Dated as of __________, 2006 MEDIAVEST, INC.
By:
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Robert Ellin, Chairman of the Board