EX-3.4 5 a2076682zex-3_4.txt EXHIBIT 3.4 EXHIBIT 3.4 CERTIFICATE OF THE DESIGNATIONS, PREFERENCES, RIGHTS AND LIMITATIONS OF SERIES B CONVERTIBLE PREFERRED STOCK OF WIRELESS WEBCONNECT!, INC. ---------------- Pursuant to Section 151 of the General Corporation Law of the State of Delaware ---------------- WIRELESS WEBCONNECT!, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY: That, pursuant to the authority expressly vested in the Board of Directors by Article Fifth of the Certificate of Incorporation of the Corporation, and pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors duly adopted by unanimous consent dated as of March 18, 2002, a resolution providing for the issuance of up to 200,000 shares of Series B Convertible Preferred Stock, which resolution is as follows: RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation by the provisions of Article Fifth of the Certificate of Incorporation of the Corporation, this Board of Directors hereby creates a series of the Preferred Stock, $0.01 par value, of the Corporation to consist of Two Hundred Thousand (200,000) shares, and this Board of Directors hereby fixes the designation and the powers, preferences and rights, and the qualifications, limitations or restrictions thereon, of the shares of such series (in addition to the powers, preferences and rights, and the qualifications, limitations or restrictions thereon, set forth in the Certificate of Incorporation, as amended, which are applicable to all series of the Preferred Stock, $.01 par value, of the Corporation) as follows: Two Hundred Thousand (200,000) shares of Preferred Stock, par value $.01 per share, of the Corporation are hereby constituted as a series of Preferred Stock designated as "Series B Convertible Preferred Stock" (hereinafter called the "Series B Stock") with the powers, preferences and rights hereinafter set forth. 1. DEFINITIONS. As used herein: "Board of Directors" means the Board of Directors of the Corporation. "Certificate of Designations" means the Certificate of the Designations, Preferences, Rights and Limitations of Series B Convertible Preferred Stock of the Corporation. "Common Stock" means (i) the class of stock designated as the common stock of the Corporation as of March 1, 2002, or (ii) any other class of stock resulting from successive changes or reclassification of such stock consisting solely of changes in par value, or from par value to no par value or from no par value to par value. "Issuance Consideration" means the consideration received by the Corporation for the issuance of a single share of the Series B Stock (subject to adjustment in the event of a stock 1 split, stock dividend, recapitalization or the like). The Issuance Consideration is initially $117.00 per share. "Liquidation Event" shall mean any liquidation, dissolution or winding-up of the Corporation or, at the option of the holders of a majority of the outstanding Series B Stock, voting as a single class, the share exchange of all issued and outstanding shares of Common Stock a consolidation or merger of the Corporation with or into any other corporation or other business organization, or the sale, lease or transfer of all or substantially all of the assets of the Corporation. "Liquidation Preference" shall have the meaning ascribed thereto in Paragraph 3 below. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. 2. DIVIDENDS. In the event the Board of Directors of the Corporation (the "Board of Directors") shall declare a cash dividend payable upon the outstanding shares of Common Stock out of funds of the Corporation legally available therefore pursuant to the General Corporation Law (the "DGCL") of the State of Delaware ("Legally Available Funds"), the Board of Directors shall at the same time declare a dividend payable on each share of Series B Stock equal to the amount of the dividend payable on the number of shares of Common Stock into which each such share of Series B Stock could then be converted into pursuant to the provisions of Section 5 below (irregardless of whether or not such shares could legally be converted at such time), such number to be determined as of the record date for the determination of holders of Common Stock entitled to receive such dividends. 3. PREFERENCE ON DISSOLUTION, LIQUIDATION OR WINDING UP. (a) In the event of the occurrence of a Liquidation Event, the holders of Series B Stock shall be entitled to receive, in preference to the holders of Common Stock or any other class of stock or series thereof ranking junior to the Series B Stock with respect to the distribution of assets, an amount equal to the product of the number of shares of Series B Stock held multiplied by the Issuance Consideration, plus an amount equal to all dividends accrued and unpaid thereon (including interest accrued thereon, if applicable) to the date fixed for distribution, and no more (the "Liquidation Preference"). If Legally Available Assets for distribution upon the occurrence of a Liquidation Event are insufficient to satisfy in full the Liquidation Preference, then the Liquidation Preference shall be reduced to such amount as can be satisfied out of the Legally Available Assets, and such amounts shall be paid to the holders of the Series B Stock on a pari passu basis (based on the number of shares of Series B Stock held). (b) Written notice of the occurrence of a Liquidation Event, stating a payment date and the place where the distributable amounts shall be payable shall be given by mail, postage prepaid, not less than 20 days prior to the payment date stated therein, to the holders of record of the Series B Stock at their respective addresses as the same shall appear on the books of the Corporation. 2 (c) No payment on account of such Liquidation Event shall be made to the holders of any class or series of capital stock ranking on a parity with the Series B Stock in respect of the distribution of assets, unless there shall likewise be paid at the same time to the holders of the Series B Stock like proportionate distributive amounts, ratably, in proportion to the full distributive amounts to which they and the holders of such parity stock are respectively entitled with respect to such preferential distribution. 4. VOTING RIGHTS. (a) Except as otherwise provided in this Certificate of Designations, each holder of Series B Stock shall be entitled to vote on all matters submitted for a vote of the holders of Common Stock a number of votes equal to the number of full shares of Common Stock into which such holder's shares of Series B Stock could then be converted pursuant to the provisions of Paragraph 5 below (irregardless of whether or not such shares could legally be converted at such time), such number to be determined as of the record date for the determination of holders of Common Stock entitled to vote on any such matter, or, if no record date is fixed, then the record date for determination of holders of Series B Stock entitled to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which such meeting is held. Except as otherwise required in this Certificate of Designations or by the DGCL, the holders of the Series B Stock shall vote with the holders of outstanding Common Stock and any other preferred shares entitled to vote on any such matter, and not as a separate class or series. (b) In addition to any vote or consent of stockholders required by law, the approval of the holders of a majority of the outstanding shares of Series B Stock, voting as a class, shall be required for the Corporation (i) to amend the Certificate of Incorporation or the Certificate of Designations to increase the authorized number of shares of Series B Stock; (ii) to reclassify any series of securities of the Corporation ranking junior to the Series B Stock with respect to dividend distributions or distributions upon the liquidation, winding up and dissolution of the Corporation to securities ranking on a parity with or senior to the Series B Stock in any such regard; (iii) to amend, repeal or change any of the provisions of the Certificate of Incorporation or the Certificate of Designations in any manner that would alter or change the powers, preferences or special rights of the shares of Series B Stock so as to affect them adversely, including without limitation changing the voting percentage required for approval by the holders of Series B Stock of the foregoing matters; (iv) otherwise to restrict the rights, preferences or privileges of the Series B Stock; or (v) to authorize a merger, share exchange of all issued and outstanding shares of Common Stock, consolidation, or reclassification of the Corporation with or into another Person, or the sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the Corporation's properties or assets in one or more related transactions to another Person, in each case, so as to eliminate the Series B Stock or otherwise affect the powers of preferences or rights of the Series B Stock as set forth in the Certificate of Incorporation or the Certificate of Designations. 5. CONVERSION RIGHTS. The shares of Series B Stock may be converted into shares of Common Stock on the terms and conditions set forth in this Section 5: 3 (a) At any time after April 1, 2003, and at the option of the Holder and upon written notice from the Holder to the Corporation, each share of Series B Stock shall be convertible at the option of the Holder thereof, at any time and from time to time, in the manner set forth herein, into 732.817 shares of Common Stock (the "Conversion Rate"); provided, however, that no shares of Series B Stock shall be convertible until such time as the Corporation has a sufficient number of shares of Common Stock authorized but unissued in order to permit the conversion of all shares of Series B Stock then issued and outstanding; which requirement must be satisfied by the Corporation on or prior to June 11, 2004. Written notice of a holder's conversion election shall be given by first-class mail, postage prepaid, to the Corporation at its principal office. Such notice shall state the date upon which the conversion is to occur, which date shall not be less than five business days from the date of the notice. Upon surrender of the certificates for the shares of Series B Stock to be converted (properly endorsed or assigned for transfer), the Corporation shall cause certificates representing shares of Common Stock to be issued in the name of the holder of such other Person as the holder may specify in writing. All share amounts set forth in this Section 5 shall be appropriately adjusted for stock splits, stock dividends, recapitalizations and the like. (b) Upon conversion of any Series B Stock, all accrued and unpaid dividends on the Series B Stock so converted shall be paid in cash. (c) If the Corporation shall at any time (i) pay or make a dividend or other distribution on any class or series of capital stock of the Corporation in Common Stock, (ii) subdivide (by means of a stock split or otherwise) its outstanding Common Stock into a larger number of shares or (iii) combine (by means of a reverse stock split or otherwise) its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior thereto shall be adjusted so that each share of Series B Stock shall thereafter be convertible into the number of shares of Common Stock which the holder of one share of Series B Stock would have held immediately following the happening of any of the events described in (i) - (iii) above had such stock been converted into Common Stock immediately prior to the record date, if any, in the case of a dividend, distribution, subdivision or combination with respect to which the Corporation has fixed a record date for the determination of stockholders entitled to receive such dividend, distribution, subdivision or combination or, if no such record date has been fixed, the effective date of such dividend, distribution, subdivision or combination. An adjustment made pursuant to this subsection (c) shall be effected at the time such dividend or distribution is made or paid or such subdivision or combination is effected and shall be effective retroactively with respect to conversions effected subsequent to any record date described in the immediately preceding sentence. (d) In case at any time or from time to time the Corporation shall pay any dividend or make any other distribution to the holders of Common Stock of (i) any securities or property of any nature whatsoever (other than cash or as provided in subsection (c) above), or (ii) any warrants or other rights to subscribe for or purchase capital stock of the Corporation, then the Conversion Rate shall be adjusted to that number determined by multiplying the Conversion Rate immediately prior to such adjustment by a fraction (A) the numerator of which shall be the fair value (as determined in good faith by the Board of Directors) per share of Common Stock at the record date for such dividend or other distribution and (B) the denominator of which shall be such fair value per share of Common Stock minus the portion applicable to one share of 4 Common Stock of the fair value (as determined in good faith by the Board of Directors) of any and all such securities or property to be distributed. A reclassification of the Common Stock into Common Stock and shares of any other class of securities shall be deemed a distribution by the Corporation to the holders of its Common Stock of such other Common Stock and of such other class of securities within the meaning of this subparagraph and, if the outstanding Common Stock shall be changed into a larger or smaller number of shares of Common Stock as a part of such reclassification, such change shall be deemed a subdivision or combination, an the case may be, of the outstanding Common Stock within the meaning of subsection (c) above. (e) The following provisions of this subsection (e) shall also be applicable to the making of adjustments to the Conversion Rate: (i) The adjustments required by this Section 5 shall be made whenever and as often as any specified event requiring an adjustment shall occur, except that no adjustment shall be made (except in the case of a subdivision or combination of shares of the Common Stock, as provided for in subsection (c) above) unless and until such adjustment either by itself or with other adjustments not previously made adds or subtracts at least 1/20th of a share to or from the Conversion Rate in effect immediately prior to the making of such adjustment. Any adjustment representing a change of less than such minimum amount (except as aforesaid) shall be carried forward and made so soon as such adjustment, together with other adjustments required by this Section 5 and not previously made, would result in a minimum adjustment. For the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of business on the date of its occurrence. (ii) If the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution to shareholders thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. (f) In the case of a merger, share exchange of all issued and outstanding shares of Common Stock, consolidation or the sale or conveyance of all or substantially all of the assets of the Corporation for which approval of the holders of the Common Stock is necessary, or in the case of any capital reorganization or any reclassification or similar change of the outstanding Common Stock (other than as at forth in subsection (c) above), each share of Series B Stock, if any, outstanding following such transaction shall thereafter be convertible into the kind and amount of securities or other securities or cash or other property receivable upon such merger, sale, conveyance, reorganization, reclassification or change by a holder of the number of shares of Common Stock into which such Series B Stock might have been converted immediately prior to such merger, sale, conveyance reorganization, reclassification or change, assuming such holder of Common Stock failed to exercise his rights of election, if any, as to the kind and amount of stock or other securities or cash or other property receivable upon such merger, sale, conveyance, reorganization, reclassification or change (provided that if the kind 5 and amount of stock or other securities or cash or other property receivable upon such merger, sale, conveyance, reorganization, reclassification or change is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised ("non-electing shares") then for the purpose of this subsection the kind and amount of stock or other securities or cash or other property receivable upon such merger, sale, conveyance, reorganization, reclassification or change by each non-electing share shall be deemed to be the kind and amount so receivable by a plurality of the non-electing shares); and, in any such case, appropriate adjustments (as determined in good faith by the Board of Directors) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holders of the Series B Stock to the and that the provisions set forth herein (including provisions with respect to changes in and other adjustments of the Conversion Rate) shall thereafter be applicable, as nearly as reasonably may be, in relation to any stock or other property thereafter deliverable upon the conversion of the Series B Stock. (g) Whenever the Conversion Rate or terms of conversion are adjusted or readjusted as herein provided, the Corporation shall prepare a notice setting forth such adjustment or readjustment and showing in detail the facts upon which each adjustment or readjustment is based, and such notice shall forthwith be mailed by first class mail to the holders of shares of Series B Stock so affected at their last known address shown on the stock books of the Corporation. (h) After such time as the Corporation has authorized but unissued shares of Common Stock equal to or exceeding the number of shares of Common Stock issuable upon conversion of all shares of Series B Stock: (i) the Corporation shall reserve and keep available, out of its authorized but unissued Common Stock or out of Common Stock held in its treasury, solely for the purpose of effecting the conversion of the Series B Stock, the full number of shares of Common Stock deliverable upon the conversion of all Series B Stock from time to time outstanding; and (ii) the Corporation shall from time to time in accordance with the DGCL increase the authorized amount of its Common Stock if at any time the authorized number of share of Common Stock remaining unissued shall not be sufficient to permit the conversion of all of the Series B Stock outstanding from time to time. (i) No fractional shares of Common Stock are to be delivered upon conversion, but the Corporation shall pay a cash adjustment in respect of any fraction of a share which would otherwise be deliverable in an amount equal to the same fraction of the current market price per share of Common Stock on the date of conversion, such current market price to be determined in good faith by the Board of Directors. (j) The Corporation will pay any issue and other taxes (other than income taxes) that may be payable in respect of any issue or delivery of Common Stock on conversion of Series B 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 stock in a name other than that in which the shares of Series B Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery 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. 6 6. NOTICES OF RECORD DATE. In the event that the Corporation shall propose at any time: (a) to declare any dividend or distribution upon its Common Stock, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus; (b) to effect any reclassification or recapitalization of its Common Stock outstanding involving a change in the Common Stock; or (c) to merge, engage in a share exchange of all issued and outstanding shares of Common Stock or consolidate with or into any other corporation (except for a Surviving Combination), or sell, lease or convey all or substantially all of its property or business, or to liquidate, dissolve or wind up; then, in connection with any such event, the Corporation shall send to the then holders of record of Series B Stock (the "Record Holders"): (i) in the case of the matters referred to in (a) and (b) above, at least ten (10) days prior written notice of the earlier of the date of record for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common Stock shall be entitled thereto) or the record date for determining rights to vote in respect of the matters referred to in (a) or (b) above; and (ii) in the case of the matters referred to in (c), at least ten (10) days prior written notice of the earlier of the date when the same shall take place (and specifying the date on which the holders of Common Stock shall be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event) or the record date for determining rights to vote in respect of the matters referred to in (c) above. Each such written notice shall be delivered or given by first class mail, postage prepaid, addressed to the Record Holders at the address for each such holder as shown on the books and records of the Corporation. 7. RESTRICTIONS ON CORPORATE ACTIONS. So long as any shares of Series B Stock are outstanding, the Corporation shall not, without obtaining the prior approval of the holders of a majority of the shares of Series B Stock outstanding at such time, take any of the following actions: (a) effect any sale, lease, assignment, transfer or other conveyance of all or substantially all of the assets of the Corporation, or any consolidation or merger involving the Corporation or any reclassification or other change of any stock, or any recapitalization, or any dissolution, liquidation or winding up of the Corporation; (b) purchase, redeem or otherwise acquire for value (or pay into or set aside as a sinking fund for such purpose) any of the Common Stock; provided, that this provision shall not apply to the purchase of shares of Common Stock from directors, officers, employees or consultants of or advisers to the Corporation upon any termination of employment or their affiliation with the Corporation or pursuant to agreements under which the Corporation has the option to repurchase such shares upon the occurrence of certain events, including the termination of employment by or service to the Corporation; 7 (c) authorize or issue, or obligate itself to issue, any other equity securities ranking senior to or on a parity with the Series B Stock as to dividend or redemption rights, liquidation preferences, conversion rights, voting rights or otherwise; (d) declare or pay dividends or declare or make any other distribution, direct or indirect (other than a dividend payable solely in shares of Common Stock) on account of the Common Stock or set apart any sum for any such purposes; or (e) increase or decrease (other than by redemption or conversion of the Preferred Stock) the total number of authorized shares of Preferred Stock or Common Stock. 8. INFORMATION RIGHTS: So long as any Person continues to hold at least one share of Series B Stock, the Corporation shall deliver to such Person audited annual and unaudited quarterly financial statements; provided, however, that such information rights shall terminate at such time that the Corporation becomes a "reporting company" under the Securities Exchange Act of 1934, as amended. IN WITNESS WHEREOF, the Corporation has caused hereunto this certificate to be signed by its Chief Executive Officer and Secretary as of March __, 2002. WIRELESS WEBCONNECT!, INC. By: /s/ John J. McDonald, Jr. John J. McDonald, Jr., Chief Executive Officer By: /s/ Richard F. Dahlson Richard F. Dahlson, Secretary 8