AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SWWT, INC.
SWWT, Inc., (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"GCL"), does hereby certify as follows:
(1) The name of the Corporation is SWWT, Inc. The
Corporation was originally incorporated under the name Sweetwater, Inc. The
original certificate of incorporation of the Corporation was filed with the
office of the Secretary of State of the State of Delaware on September 17,
1993.
(2) This Amended and Restated Certificate of Incorporation
was duly adopted in accordance with Sections 242 and 245 of the GCL
pursuant to a written consent in accordance with Section 228 of the GCL.
(3) This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the certificate of incorporation
of the Corporation, as heretofore amended or supplemented.
(4) The text of the Certificate of Incorporation is restated
in its entirety as follows:
FIRST: The name of the Corporation is SWWT, Inc.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 15 E. North Street, in the City of
Dover, County of Kent. The name of its registered agent at that address is
Incorporating Services Ltd.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: (a) Authorized Capital Stock. The total number of
shares of stock which the Corporation shall have authority to issue is
800,000,000 shares of capital stock, consisting of (i) 750,000,000 shares
of common stock, par value $.001 per share (the "Common Stock"), and (ii)
50,000,000 shares of preferred stock, par value $.001 per share (the
"Preferred Stock").
(b) Preferred Stock. The Board of Directors is hereby
expressly authorized to provide for the issuance of all or any shares of
the Preferred Stock in one or more classes or series, and to fix for each
such class or series such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of
such class or series, including, without limitation, the authority to
provide that any such class or series may be (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on
such conditions, and at such times, and payable in preference to, or in
such relation to, the dividends payable on any other class or classes or
any other series; (iii) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; or (iv)
convertible into, or exchangeable for, shares of any other class or classes
of stock, or of any other series of the same or any other class or classes
of stock, of the Corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution
or resolutions.
(c) Class of Preferred Stock Outstanding. The Corporation
currently has authorized a series of Preferred Stock designated as its
Series B Preferred Stock, par value $.001 per share (the "Series B
Preferred Stock"). Such series currently consists of 1,000,000 authorized
shares. The rights, powers, designations, preferences, qualifications and
limitations of such Series B Preferred Stock are set forth in the
Certificate of Designations, which is attached hereto as Exhibit A.
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and regulation of the
powers of the Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(b) The Board of Directors shall consist of not less than
three or more than twenty-five members, the exact number of which shall be
fixed from time to time by resolution adopted by the affirmative vote of a
majority of the active Board of Directors.
(c) The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one- third of the total number of directors
constituting the entire Board of Directors; provided, however, that in the
event that the total number of directors is not divisible by three,
remaining directors after even division among the three classes shall be
apportioned among the classes beginning with the class with the longest
remaining term. The initial division of the Board of Directors into classes
shall be made by the decision of the affirmative vote of a majority of the
entire Board of Directors. The term of the initial Class I directors shall
terminate on the date of the 2001 annual meeting; the term of the initial
Class II directors shall terminate on the date of the 2002 annual meeting;
and the term of the initial Class III directors shall terminate on the date
of the 2003 annual meeting. At each succeeding annual meeting of
stockholders beginning in 2001, successors to the class of directors whose
term expires at that annual meeting shall be elected for a three-year term.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director.
(d) A director shall hold office until the annual meeting
for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
(e) Subject to the terms of any one or more classes or
series of Preferred Stock, any vacancy on the Board of Directors that
results from an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided that a quorum
is present, and any other vacancy occurring on the Board of Directors may
be filled by a majority of the Board of Directors then in office, even if
less than a quorum, or by a sole remaining director. Any director of any
class elected to fill a vacancy resulting from an increase in the number of
directors of such class shall hold office for a term that shall coincide
with the remaining term of that class. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of his predecessor. Subject to the
rights, if any, of the holders of shares of Preferred Stock then
outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least a majority of the voting power
of the Corporation's then outstanding capital stock entitled to vote
generally in the election of directors. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of Preferred
Stock issued by the Corporation shall have the right, voting separately by
class or series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms of this
Amended and Restated Certificate of Incorporation applicable thereto, and
such directors so elected shall not be divided into classes pursuant to
this Article FIFTH unless expressly provided by such terms.
(f) In addition to the powers and authority hereinbefore or
by statute expressly conferred upon them, the directors are hereby
empowered to 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 GCL, this Amended and Restated Certificate of
Incorporation, and any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if
such By-Laws had not been adopted.
SIXTH: No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the GCL as the same
exists or may hereafter be amended. If the GCL is amended hereafter to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent authorized by the GCL, as so
amended. Any repeal or modification of this Article SIXTH shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
SEVENTH: The Corporation shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as to
a person who has ceased to be a director or officer of the Corporation and
shall inure to the benefit of his or her heirs, executors and personal and
legal representatives; provided, however, that, except for proceedings to
enforce rights to indemnification, the Corporation shall not be obligated
to indemnify any director or officer (or his or her heirs, executors or
personal or legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors.
The right to indemnification conferred by this Article SEVENTH shall
include the right to be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in advance of its
final disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article SEVENTH to directors and
officers of the Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Amended and
Restated Certificate of Incorporation, the By-Laws of the Corporation, any
statute, agreement, vote of stockholders or disinterested directors or
otherwise.
Any repeal or modification of this Article SEVENTH shall not
adversely affect any rights to indemnification and to the advancement of
expenses of a director or officer of the Corporation existing at the time
of such repeal or modification with respect to any acts or omissions
occurring prior to such repeal or modification.
EIGHTH: The Corporation expressly elects to be governed by
Section 203 of the GCL.
NINTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL)
outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of the
Corporation.
TENTH: In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of
Directors shall have the power to adopt, amend, alter or repeal the
Corporation's By-Laws. The affirmative vote of at least a majority of the
entire Board of Directors shall be required to adopt, amend, alter or
repeal the Corporation's By-Laws. The Corporation's By-Laws also may be
adopted, amended, altered or repealed by the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of the shares
entitled to vote at an election of directors.
ELEVENTH: 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 in this Amended and Restated Certificate of Incorporation, the
Corporation's By-Laws or the GCL, and all rights herein conferred upon
stockholders are granted subject to such reservation; provided, however,
that, notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation (and in addition to any other vote that may be
required by law), the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of the shares entitled to vote at an
election of directors shall be required to amend, alter, change or repeal,
or to adopt any provision as part of this Amended and Restated Certificate
of Incorporation inconsistent with the purpose and intent of Articles
FIFTH, EIGHTH and TENTH of this Amended and Restated Certificate of
Incorporation or this Article ELEVENTH.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed on its behalf this
1st day of August, 2000.
SWWT, INC.
By:/s/ Jonathan V. Diamond
Name: Jonathan V. Diamond
Title: President
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
OF
SERIES B PREFERRED STOCK
OF
SWWT, INC.
Pursuant to Section 151 of
the Delaware General Corporation Law
SWWT, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
That, pursuant to the authority vested in the Board of
Directors of the Corporation by Article FOURTH of the Certificate of
Incorporation of the Corporation, as amended, and pursuant to the
provisions of Section 151 of the Delaware General Corporation Law, the
Board of Directors of the Corporation, at a meeting duly convened on April
14, 2000 duly adopted the following resolution:
RESOLVED that, pursuant to the authority vested in the Board
of Directors of the Corporation by Article FOURTH of the Corporation's
Certificate of Incorporation, as amended, of the Preferred Stock, par value
$.001 per share, of the Corporation ("Preferred Stock"), there shall be
designated a series of 1,000,000 shares which shall be issued in and
constitute a single series to be known as "Series B Preferred Stock"
(hereinafter called the "Series B Preferred Stock"). The shares of Series B
Preferred Stock shall have the voting powers, designations, preferences and
other special rights, and qualifications, limitations and restrictions
thereof set forth below:
I. VOTING RIGHTS AND PREEMPTIVE RIGHTS
(a) Except as otherwise provided by law, the holders of the
Series B Preferred Stock shall be entitled to vote at or participate in any
meeting of stockholders, and to participate in any action proposed to be
taken by written consent, in each case with the holders of the common
stock, par value $.001 of the Corporation (the "Common Stock") and with the
holders of any other series of convertible Preferred Stock having the right
to vote on an as converted basis, voting or acting together as one class on
an as converted basis, and to receive notice of any such meeting or any
such proposed action in the same manner as notice is provided to holders of
the Common Stock.
(b) The holders of the Series B Preferred Stock shall have no
preemptive rights or other subscription rights.
II. LIQUIDATION
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary, before
any distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of the Common Stock
or any other stock of the Corporation having rights or preferences as to
assets junior to the rights and preferences of the Series B Preferred
Stock, the holders of the Series B Preferred Stock shall be entitled to the
payment in cash of $.01 per share.
(b) If, upon any such liquidation, dissolution or winding up,
the assets of the Corporation distributable among the holders of the Series
B Preferred Stock shall be insufficient to pay to them in full the
preferential amounts specified above, then such assets, or the proceeds
thereof, shall be distributed among the holders of the Series B Preferred
Stock ratably in proportion to the amounts which would be payable to them
respectively, if such preferential amounts were paid to them in full.
(c) In addition to the amount set forth in paragraph (a) of this
Section II the holders of the Series B Preferred Stock shall also be
entitled to such amount per share of the Series B Preferred Stock as would
have been payable had each share been converted to Common Stock immediately
prior to such liquidation, dissolution or winding up of the Company.
III. CONVERSION
The holders of the Series B Preferred Stock shall have the
following conversion rights (the "Conversion Rights"):
(a) CONVERSION. Each share of Series B Preferred shall be
automatically converted on the next business day (the "Conversion Date")
following the later of (x) the date of filing of a certificate of amendment
to the Corporation's Certificate of Incorporation that increases the number
of authorized shares of Common Stock to a number sufficient to permit the
conversion of all of the then outstanding shares of Series B Preferred
Stock into shares of Common Stock and (y) the date on which the Equity
Financing (as defined below) is completed. Upon the occurrence of the later
of such events, each share of Series B Preferred Stock shall be converted
into that number of fully paid and non-assessable shares of the Common
Stock determined by dividing (x) 75,777,162 (the "Total Common Stock")
(such number being intended to have equaled 21.222 multiplied by the number
of shares of outstanding Common Stock of the Corporation, on a fully
diluted basis, immediately prior to the Effective Time (as defined in the
Agreement and Plan of Merger, dated as of April 14, 2000, among the
Corporation, E-Newco, Inc. and ENWC Acquisition, Inc.); it being understood
that such number reflecting the Total Common Stock shall be adjusted on the
Conversion Date to the extent necessary to ensure it so reflects such
product) by (y) the aggregate number of shares of Series B Preferred Stock
outstanding on the Conversion Date (such quotient, the "Conversion Ratio").
The Conversion Ratio shall be subject from time to time to adjustment as
herein set forth. "Equity Financing" shall mean one or more related rounds
of financing completed after the Effective Time in connection with which a
minimum of $15.0 million of cash is received by the Corporation in
connection with the issuance of equity securities (or other securities
convertible into, or exercisable or exchangeable for, equity securities) of
the Corporation.
(b) EXCHANGE OF CERTIFICATE. Upon surrender of any certificate
or certificates representing Series B Preferred Stock, thereupon the
Corporation shall promptly issue and deliver at such office to such holder
of Series B Preferred Stock a certificate or certificates for the number of
shares of the Common Stock to which he shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close
of business on the date of such surrender of the shares of Series B
Preferred Stock to be converted, and the person or persons entitled to
receive the shares of the Common Stock issuable upon such conversion shall
be treated for all purposes as the record holder or holders of such shares
of the Common Stock on such date.
(c) SUBDIVISION OR COMBINATION OF COMMON STOCK. If the
Corporation shall, at any time or from time to time after the date of
issuance of the Series B Preferred Stock, effect a subdivision of the
outstanding Common Stock, the number of shares representing the Total
Common Stock immediately before that subdivision shall be proportionately
increased, and conversely if the Corporation shall at any time or from time
to time after the date of issuance of the Series B Preferred Stock combine
the outstanding shares of the Common Stock, the number of shares
representing the Total Common Stock immediately before the combination
shall be proportionately decreased. Any adjustment under this subparagraph
(c) shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(d) COMMON STOCK DIVIDENDS. In the event the Corporation at any
time, or from time to time after the date of issuance of the Series B
Preferred Stock, shall make or issue, or fix a record date for the
determination of stockholders entitled to receive, a dividend or other
distribution payable in additional shares of the Common Stock, then and in
each such event, the Conversion Ratio then in effect shall be adjusted as
of the time of such issuance or, in the event such a record date shall have
been fixed, as of the close of business on such record date, by increasing
the number of shares representing the Total Common Stock by an amount equal
to the number of shares of Common Stock that would have been issuable in
payment of such dividend or distribution had all of the shares of Series B
Preferred Stock been converted into Common Stock immediately prior to such
issuance or record date, as applicable; provided, however, if such record
date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Conversion
Ratio shall be recomputed accordingly as of the close of business on such
record date and thereafter the Conversion Ratio shall be adjusted pursuant
to this subparagraph (d) as of the time of actual payment of such dividends
or distributions.
(e) OTHER DIVIDENDS. In the event the Corporation at any time or
from time to time after the date of issuance of the Series B Preferred
Stock shall make or issue, or fix a record date for the determination of
stockholders entitled to receive, a dividend or other distribution payable
in securities of the Corporation other than shares of the Common Stock,
then and in each such event provision shall be made so that the holders of
Series B Preferred Stock shall receive upon conversion thereof in addition
to the number of shares of the Common Stock receivable thereupon, the
amount of securities of the Company which they would have received had
their Series B Preferred Stock been converted into the Common Stock on the
date of such event and had they thereafter, during the term from the date
of such event to and including the date of conversion, retained such
securities receivable by them as aforesaid during such period, giving
application to all adjustments called for during such period under this
Section III with respect to the rights of the holders of the Series B
Preferred Stock.
(f) REORGANIZATIONS, ETC. If the Common Stock issuable upon the
conversion of the Series B 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 of shares, stock dividend, reorganization,
merger, consolidation or sale of assets, provided for elsewhere in this
Section III), then and in each such event the holder of each share of
Series B 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
exchange, by holders of the number of shares of the Common Stock into which
such share of Series B Preferred Stock might have been converted
immediately prior to such reorganization, reclassification or change, all
subject to further adjustment as provided herein.
(g) OTHER REORGANIZATIONS. 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 III) or merger or consolidation of the
Corporation with or into another corporation, or the sale of all or
substantially all of the Company's properties and assets to any other
person, then, as a part of such reorganization, merger, consolidation or
sale, provision shall be made so that the holders of the Series B Preferred
Stock shall thereafter be entitled to receive upon conversion of the Series
B 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 or consolidation, to which a holder of that number of shares of
Common Stock deliverable upon conversion of the Series B Preferred Stock
would have been entitled on 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 III with respect
to the rights of the holders of the Series B Preferred Stock after the
reorganization, merger, consolidation or sale to the end that the
provisions of this Section III (including adjustment of the Conversion
Ratio then in effect and number of shares issuable upon conversion of the
Series B Preferred Stock) shall be applicable after the event as nearly
equivalent as may be practicable.
(h) EQUITABLE ADJUSTMENT. In case any event shall occur as to
which the provisions of the Section III are not strictly applicable but the
failure to make any adjustment would not fairly protect the rights
represented by the Series B Preferred Stock in accordance with the
essential intent and principles of this Section III, then, in each such
case, the board of directors of the Corporation shall in good faith, using
reasonable methods, make or arrange for an equitable adjustment to the
number of shares of Common Stock and the Conversion Ration, provided that
such adjustment is acceptable to the holders of the majority of shares of
Series B Preferred Stock. The adjustments set forth in this Section III
shall similarly apply to any and all successive transactions or events
requiring any adjustments hereunder.
(i) COMPUTATION OF ADJUSTMENT. In each case of an adjustment of
the Conversion Ratio or the number of shares of the Common Stock or other
securities issuable upon conversion of the Series B Preferred Stock, the
Corporation, at its expense, shall compute such adjustment or readjustment
in accordance with the provisions hereof and prepare a certificate showing
such adjustment or readjustment, and shall send said certificate to each
registered holder of the Series B Preferred Stock at the holder's address
as shown in the Corporation's books. The certificate shall set forth such
adjustment or readjustment, showing in detail the facts upon which such
adjustment is based.
(j) NOTICE OF CERTAIN EVENTS. In the event of (i) any taking by
the Corporation of a record of the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to receive
any dividend or other distribution, or (ii) any capital reorganization of
the Corporation, any reclassification or recapitalization of the capital
stock of the Corporation, any transfer of all or substantially all of the
assets of the Corporation to any other corporation or to any other entity
or person, any consolidation or merger involving the Corporation and any
other corporation, or any liquidation or winding up of the Corporation, the
Corporation shall send to each holder of Series B Preferred Stock, not more
than 20 nor less than 10 days prior to the date specified therein, a notice
specifying (A) the date on which any such record is to be taken for the
purpose of such dividend or distribution, (B) the date on which any such
reorganization, reclassification, transfer, consolidation, merger,
dissolution, liquidation or winding up is expected to become effective, and
(C) the time, if any, that is to be fixed, as to when the holders of record
of the Common Stock (or other securities, including the Series B Preferred
Stock) shall be entitled to exchange their shares of the Common Stock (or
other securities) for securities or other property deliverable upon such
reorganization, reclassification, transfer, consolidation, merger,
dissolution, liquidation or winding up.
(k) NO FRACTIONAL SHARES. No fractional shares of the Common
Stock shall be issued upon conversion of the Series B Preferred Stock. In
lieu of any fractional shares to which the holder would otherwise be
entitled, the Corporation shall pay cash equal to the product of such
fraction multiplied by the fair market value of one share of the Common
Stock on the date of conversion, as determined in good faith by the Board
of Directors.
(l) AUTHORIZED COMMON STOCK. The Corporation shall take all
actions necessary to authorize, and at all times thereafter take all
actions to reserve and keep available out of its authorized but unissued
shares of the Common Stock solely for the purpose of effecting the
conversion of the shares of the Series B Preferred Stock, such number of
its shares of the Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of the Series B Preferred
Stock; and if at any time the number of authorized but unissued shares of
the Common Stock shall not be sufficient to effect the conversion of all
then outstanding shares of the Series B Preferred Stock, the Corporation
will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of the Common
Stock to such number of shares as shall be sufficient for such purpose.
(m) DELIVERY OF NOTICE. Any notice required by the provisions of
this Section III to be given to the holders of shares of the Series B
Preferred Stock shall be given by either hand-delivery, telecopy, overnight
mail or certified or registered mail, postage prepaid, and addressed to
each holder of record at his address appearing on the books of the
Corporation and shall be deemed received, if hand-delivered, upon delivery,
if telecopied, upon confirmation of receipt, and if mailed (whether by
overnight, certified or registered mail), upon receipt.
(n) NO AVOIDANCE. The Corporation shall not amend its
Certificate of Incorporation or participate in any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, for the purpose of avoiding or seeking to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Corporation, but will at all times in good faith
assist in carrying out all such action as may be reasonably necessary or
appropriate in order to protect the conversion rights of the holders of the
Series B Preferred Stock against dilution or other impairment.
IV. SERIES B PREFERRED STOCK RESTRICTIONS ON CORPORATE
ACTION
Without the consent of the holders of record of a majority of
the shares of Series B Preferred Stock at the time outstanding, given in
writing or by vote at any regular or special meeting of stockholders, the
Corporation shall not amend, alter or remove any of the provisions of the
Corporation's certificate of incorporation or authorize any
reclassification of the Series B Preferred Stock, in either case so as to
affect adversely the preferences, special rights or powers of the Series B
Preferred Stock, either directly or indirectly, or through a merger or
consolidation with any corporation, or authorize any shares of the
Corporation ranking, either as to the payment of dividends or upon
liquidation, dissolution or winding up, prior to the Series B Preferred
Stock.
V. SERIES B PREFERRED STOCK DIVIDENDS
When and as dividends are declared on the Common Stock, the
holders of the Series B Preferred Stock shall be entitled to share in such
dividends with the holders of the Common Stock together as one class on an
as converted basis.
VI. SERIES B PREFERRED STOCK PAYMENTS
All payments with respect to the Series B Preferred Stock shall
be sent to the holders thereof at their respective addresses, as the same
shall appear on the books of the Corporation.
VII. OPTIONAL REDEMPTION OF SERIES B PREFERRED STOCK
Unless restricted by applicable law, all of the shares of Series
B Preferred Stock will be subject to redemption at the option of the
Corporation, in whole, but not in part, at a redemption price per share
equal to the Pro Rata Cash Balance Per Share (as defined below), in cash
out of legally available funds, if the Equity Financing is not completed on
or prior to 180 days after the Effective Time (the "Deadline Date"). The
election to exercise the optional redemption right under this Section VII
shall be made by means of a class vote of the holders of the Common Stock
of the Corporation (without participation by holders of the Series B
Preferred Stock on an as-converted basis or otherwise) taken within 20 days
of the Deadline Date. In the event the Corporation duly elects to redeem
the Series B Preferred Stock pursuant to the terms of this Section VII,
notice of such redemption shall be given by first class mail, postage paid,
mailed to each holder of record of the shares of Series B Preferred Stock
at such holder's address as the same appears on the stock register of the
Corporation; provided, however, that no failure to give such notice nor any
defect therein shall affect the validity of the proceeding for the
redemption of any shares of Series B Preferred Stock to be redeemed, except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (i) the redemption date (which shall be not less than 10 nor more
than 30 days after the date of mailing of the notice and no more than 50
days after the Deadline Date); (ii) the redemption price; and (iii) the
place or places where certificates for such shares are to be surrendered
for payment for the redemption price. Notice having been mailed as
aforesaid, from and after the redemption date (unless default shall be made
by the Corporation in providing money on the redemption date for the
payment of the redemption price of the shares of Series B Preferred Stock
called for redemption), the shares of Series B Preferred Stock shall no
longer be deemed to be outstanding and shall have the status of authorized
but unissued shares of Series B Preferred Stock and all rights of the
holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price. "Pro Rata Cash Balance Per Share" shall mean the greater of (1)
$0.00 per share and (2) the quotient obtained by dividing (x) the cash and
cash equivalents balance held by the Corporation on the Deadline Date as
certified in good faith by the Board of Directors of the Corporation, by
(y) the number of shares of Series B Preferred Stock outstanding on the
Deadline Date.
VIII. AMENDMENTS TO SERIES B PREFERRED STOCK
The Corporation shall not, without a class vote of the holders
of the Common Stock of the Corporation (without participation by holders of
the Series B Preferred Stock on an as-converted basis or otherwise) amend,
alter or repeal any provision of this Certificate of Designations
(including, without limitation, Section VII hereof) so as to adversely
affect the relative rights, preferences, qualifications, limitations or
restrictions of the Common Stock as compared to those of the Series B
Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations has been
executed by the Corporation by its President, Patrick E. Thomas, this 14th
day of April, 2000.
SWWT, INC.
By: /s/ Patrick E. Thomas
Name: Patrick E. Thomas
Title: President
