CERTIFICATE OF AMENDMENT OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

EBIZ.NET, INC.

 

                        eBiz.net, Inc., a corporation organized and existing under and by virtue of the

General Corporation Law of the State of Delaware,

 

                        DOES HEREBY CERTIFY:

 

                        FIRST: That by a unanimous written consent of the Board of Directors of eBiz.net, Inc., dated as of the date hereof, resolutions were duly adopted setting forth a proposed amendment of the Amended and Restated Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

 

                        RESOLVED, that, subject to the approval of the stockholders of this

            Corporation, the First Article of the Amended and Restated Certificate of

            Incorporation of this Corporation be, and it hereby is, amended in its entirety to

            read in full as follows:

 

                        "FIRST: The name of the corporation is Affinity Internet, Inc. (the

            "Corporation")."

 

                        SECOND: That thereafter, pursuant to resolution of its Board of Directors, the majority stockholders of said corporation took action by executing a written consent in lieu of special meeting in accordance with Section 228 of the General Corporation Law of the State of Delaware pursuant to which a majority of the outstanding number of shares was voted in favor of the amendment.

 

                        THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

FOURTH: That the capital of said corporation shall not be reduced under or

by reason of said amendment.

 

IN WITNESS WHEREOF, eBiz.net, Inc. has caused this certificate to be signed by John McIntyre, its President and Chief Executive Officer, this 11th day of May, 2000.

 

 

 

                                                                        BY:      _________________________________

                                                                                    John McIntyre, President and Chief

                                                                                    Executive Officer

                                                           

 

State of Delaware

 

Office of the Secretary of State

 

___________________________

 

 

 

 

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF

 

DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT                

COPY OF THE CERTIFICATE OF INCORPORATION OF "EBIZ.NET,  INC.",

 

FILED IN THIS OFFICE ON THE TWELFTH DAY OF OCTOBER, A.D. 1999,               

 

AT 9 O'CLOCK A.M.

           

            A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE

 

NEW CASTLE COUNTY RECORDER OF DEEDS.

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                _______________________________

Edward J. Freel, Secretary of State

 

AUTHENTICATION: 0023620

 

3110415     8100

.                                                                                                           DATE:  10-13-99                      

991431874

 

 

           

 

STATE OF DELAWARE

SECRETARY OF STATE

DIVIS10N OF CORPORATIONS

FILED 09:00 AM 10/12/1999

                991431874 - 3110425

 

CERTIFICATE OF INCORPORATION

 

OF

 

EBIZ.NET, INC.

 

 

1.         The name of the Corporation is eBiznet, Inc.

 

2.         The address of its registered office in the State of Delaware is 1013 Centre Road, Wilmington, County of New Castle. The name of its registered agent at such address is Corporation Service Company.

 

3.         The nature of the business of the Corporation and the objects or purposes to be transacted, promoted or carried on by it are as follows: 'To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

 

4.         The total number of shares of all classes of stock that the Corporation is

authorized to issue is SIXTY MILLION (60,000,000) shares of Common Stock with a

par value of ONE THOUSANDTH OF ONE CENT ($0.00001) per share.

 

5.         The name and mailing address of the sole incorporator is as follows:

 

                        Name                                       Mailing Address

 

                        Misako Maki Sack                   c/o MORRISON & FOERSTER LLP

                                                                        425 Market Street

                                                                        San Francisco, CA 94105-2482

 

6.         The board of directors is expressly authorized to make, alter, or repeal the bylaws of the Corporation.

 

7.         Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.

 

8.         Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of  trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of

the Delaware Code order a meeting, of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

 

9.         The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation..

 

10.       To the fullest extent permitted by Delaware statutory or decisional law, as amended or interpreted, no director of this Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.  This Article 10 does not affect the availability of equitable remedies for breach of fiduciary duties.

 

I, the undersigned, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant tot he General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and, accordingly, have hereunto set my hand this 12th day of October, 1999.

 

 

                                                            ______________________________

                                                                        Misako Maki Sack

                                                                        Sole Incorporator

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State of Delaware

 

Office of the Secretary of State

_______________________

 

 

 

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF

 

DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT

 

COPY OF THE RESTATED CERTIFICATE  OF “EBIZ.NET,  INC.",  FILED IN

 

THIS OFFICE ON THE TWENTY-FIFTH  DAY OF OCTOBER, A.D. 1999, AT 9

 

O'CLOCK A.M.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                        ________________________________

Edward J. Freel, Secretary of State

 

3110415    8100

 

AUTHENTICATION:    0129952

991512867

DATE:   12-09-99

 

 

 

            STATE OF DELAWARE

                SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 10/25/1999

                991451162 - 3110415

 

                                                                                                                                    Filing Copy

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

of

 

eBiz.net, Inc.

 

 

The undersigned, having filed its original Certificate of Incorporation with the

Secretary of State of the State of Delaware on October 12, 1999, does hereby amend and restate its

Certificate of incorporation and certify as follows

 

FIPST: The name of the corporation is eBiz.net, Inc. (hereinafter the "Corporation").

 

SECOND: The address of the registered office of the Corporation in the State of Delaware is 1013 Centre Poad, in the City of Wilmington, County of New Castle, State of Delaware, 19805. The name of its registered agent at that address is Corporation Service Company.

 

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)       Classes of Stock. The Corporation is authorized to issue three (3) classes of stock to be designated, respectively, “Common Stock,” “Nonvoting Common Stock” and “Preferred Stock”. (Shares of Common Stock and Nonvoting Common Stock are sometimes collectively referred to herein as “Common Shares.”)  The total number of shares of capital stock which the Corporation is authorized to issue is 65,000,000 shares, of which 30,000,000 shares shall be Common Stock, 30,000,000 shares shall be Nonvoting Common Stock and 5,000,000 shares shall be Preferred Stock. All Common Shares and Preferred Stock shall have a par value of $0.00001 per share.

 

            Subject to the rights of any outstanding series of Preferred Stock to consent there to as may

be required by this Certificate of Incorporation or law, the Board of Directors shall have authority

by resolution to issue the Preferred Stock from time to time on such terms as it may determine and

 

 

 

 

to divide the Preferred Stock into one or more series and, in connection with the creation of any such series, to determine and fix by the resolution or resolutions providing for the issuance of shares thereof.

 

(a)        the distinctive designation of such series, the number of shares which shall constitute such series, which number may be increased or decreased (but not below the number of shares then outstanding) from time to time by action of  the Board of Directors, and the stated value thereof, if different from the par value thereof;

 

(b)        the dividend rate, the times of payment of dividends on the shares of such  series, whether dividends shall be cumulative, and, if so, from what date or dates, and the preference or relation which such dividends will bear to the dividends payable an any shares of stock of any other class or anv other series of Preferred Stock;

 

(c)        the price or prices at which,  and the terms and conditions on which, the shares of such series may be redeemed;

 

(d)        whether or not the shares of such series shall be entitled to The benefit of a retirement or sinking fund to be applied to the. purchase or redemption of such shares and, if so entitled, the amount of such fund and the terms and provisions relative to the operation thereof;

 

(e)        whether or not the shares of such series shall be convertible into, or exchangeable for, any other shares of stock of the Corporation or any other securities and, if so convertible or exchangeable, the conversion price or prices, or the rates of exchange, and any adjustments thereof, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange;

 

(f)         the rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Corporation;

 

(g)        whether or not the shares of such series shall have priority over or parity with or be junior to the shares of any other class or series in any respect, or shall be entitled to the benefit of limitations restricting (i) the creation of indebtedness of the Corporation, (ii) the issuance of shares of any other class or series having priority over or being on a parity with the shares of such series in any respect, or (iii) the payment of dividends on, the making of other distributions in respect of, or the purchase or redemption of shares of any other class or series on a parity with or ranking junior to the shares of such series as to dividends or assets, and the terms of any such restrictions, or any other restriction with respect to shares of any other class or series on a parity with or ranking junior to the shares of such series in any respect;

 

(h)        whether such series shall have voting rights, in addition to any voting rights provided by law and, if so, the terms of such voting rights, which may be general or limited; and

 

 

 

 

(j)         any other powers, preferences, privileges, and relative, participating, optional, or other special rights of such series, and the qualifications, limitations or restrictions thereof, to the full extent now or hereafter permitted by law.

 

The powers, preferences and relative, participating, option and other special rights of each series of  Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.  All shares of any one series of Preferred Stock shall be identical in all respects with all other shares of such series, except

that shares of any one series issued at different times may differ as to the dates from which dividends thereon shall be cumulative

 

(B)       Rights, Preferences, Privileges and Restrictions of Series A Preferred Stock.  A series of Preferred Stock is hereby created designated – “Series A Preferred Stock” and consisting of 60,000 shares. The rights, preferences, privileges and restrictions granted to and imposed on the Series A Preferred Stock are as follows:

 

1.  Dividend Provisions.  (a) The holders of shares of Series A Preferred Stock

shall be entitled to receive, prior and in preference to the declaration or payment of any dividend or distribution to the holders of Common Shares or any other shares or securities of the Corporation ranking junior to the Series A Preferred Stock with respect to the payment of dividends or the distribution.of assets on liquidation ("Junior Securities”), dividends which shall accrue cumulatively on each share of Series A Preferred Stock at the rate and in the manner prescribed in this subsection 1(a) from and including the date of issuance of such share of Series A Preferred Stock to but excluding the date on which any redemption of such share of Series A Preferred Stock shall have been effected, and payable when, as and if any dividend or distribution is declared by the Board of Directors on any share of any class of stock. The date on which the Corporation initially issues a share of Series A Preferred Stock will be deemed to be its "date of issuance" regardless of the number of times transfer of such share of Series A Preferred Stock is made or the number of certificates which may be issued to evidence a share of Series A Preferred Stock.

 

(i)         Dividends shall accrue on each share of Series A Preferred Stock

(and on any accrued and unpaid dividends thereon) at a rate per annum (computed on the basis of a 360-day year of twelve 30-day months) compounded annually, of 10%, of the Original Series A Preferred Stock Issue Price (as defined below) (as adjusted for stock splits, stock dividends, combinations, recapitalizations and similar events). Such dividends shall be payable when, as and if any dividend or distribution is declared or paid by the Corporation on any share of any class of stock. In the event of any liquidation, dissolution or winding up of the Corporation or the redemption of a share of Series A Preferred Stock or the bankruptcy of the Corporation, all accrued and unpaid dividends on a share of Series A Preferred Stock shall be added to the liquidation preference of such share on the payment date under subsection 2(a) below, or on the date of redemption of such share or upon the bankruptcy of the Corporation, as the case may be, accrued cumulatively to but excluding such payment date or redemption date or bankruptcy at the rate per annum set forth above.

 

 

 

(ii)        No dividend or other distribution (other than a dividend or

distribution payable solely in Common Shares) shall be paid on or set apart for payment on the Common Shares or other Junior Securities nor shall any payment be made on account of the purchase, redemption or retirement of any Common Shares or other Junior Securities or any calls, warrants, rights or options exercisable for or convertible into any Common Shares or other Junior Securities, unless all accrued and unpaid dividends on the Series A Preferred Stock have been or contemporaneously are paid in cash in accordance herewith; provided, however. that, in all cases subject to the approval of the Board of Directors (A) the Corporation may redeem Series A Preferred Stock as provided in Section 3 and (B) the Corporation may repurchase Common Shares owned by employees of, or consultants to, the Corporation or its subsidiaries on termination of their employment or consultancy. No dividend shall be declared on any series of Preferred Stock ranking as to dividends on a parity with the Series A Preferred Stock unless there shall have been declared on all shares then outstanding of Series A Preferred Stock, like proportionaie dividends, ratably, in proportion to the respective dividends payable in respect of such series of Preferred Stock_ In the event that the Corporation fails to pay the full dividends accrued on all outstanding shares of Series A Preferred Stock, any partial amounts which are paid as dividends by The Corporation with respect to the Series A Preferred Stock shall be paid to the holders of such shares of Series A Preferred Stock in proportion (as nearly as practicable) to the amount such holders would be entitled to receive if they were to be paid the full accrued and unpaid dividends on  the Series A Preferred Stock.

 

2.         Liquidation Preference.

 

(a)        In the event of any liquidation, dissolution or winding up of

the Corporation,either voluntary or involuntary, the holders of Series A Preferred Stock shall be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the Corporation to the holders of Common Shares or any other.junior Securities by reason of their ownership thereof, an amount per share in cash equal to $ 1,000 for each outstanding share of Series A Preferred Stock (as adjusted for stock splits, stock dividends, combinations, recapitalizations and other similar events) (the "Original Series A Preferred Stock Issue Price"), plus all accrued but unpaid dividends on each share of Series A Preferred Stock as of the date of such event. If upon the occurrence of such event, the assets and funds thus distributed among the holders of the Series A Preferred Stock shall be insufficient to permit the payment to such holders of the full aforesaid preferential amounts, then the entire assets and funds of the Corporation legally available for distribution shall be distributed ratably among the holders of the Series A Preferred Stock in proportion to the liquidation preference of the shares owned by each such holder. No payment on account of any such liquidation, dissolution or winding-up of the Corporation shall be paid to any holder of shares of Series A Preferred Stock unless there shall be paid at the same time to all holders of shares of Series A Preferred Stock proportionate amounts determined ratably in proportion to the full amounts to which the holders of all outstanding shares of Series A Preferred Stock are respectively entitled with respect to such distribution.

 

(b)        Following completion of the distribution required by the first sentence of

paragraph (a) of this Section 2, if assets remain in the Corporation, the holders of the Common

 

 

Shares shall share ratably in all remaining assets of the Corporation, based on the number of Common Shares then. outstanding.

 

(c)         Unless the holders of sixty-six and two-thirds percent (66 2/3%) of the

outstanding shares of Series A Preferred Stock agree otherwise by vote or written consent as provided by law, for purposes of this Section 2, the completion of a sale of all or substantially all of the Corporation's assets determined on a consolidated basis or a sale of all or more than 50% of the Corporation's outstanding voting securities (whether by merger, recapitalization, consolidation, reorganization, combination, liquidation or otherwise) to an Independent Third Party (as defined below) or group of Independent Third Parties shall be deemed to be a liquidation,,dissolution or winding up within the meaning of this Section 2. "Independent Third Party" means any person or entity who, immediately prior to the contemplated transaction, does not own in excess of ten percent (10%) of the Corporation's Common Shares (a “10% 0wner”), who is not controlling, controlled by or under common control with any such 10% Owner and who is not the spouse or issue of any such 10% Owner or a trust for the benefit of such 10% Owner or the spouse or issue of such 10% Owner.

 

3.         Redemption.

 

                        (a)        On or before the earlier of (i) three business days after the completion

of an IPO (as defined below) or (ii) October 31, 2006 (as That date may be extended pursuant to the

terms of Section 3(d) hereof) (each a "Redemption Date," and collectively the "Redemption Dates”), the Corporation shall redeem on such Redemption Date all outstanding Series A Preferred Stock which it may lawfully redeem by paying in cash therefor a sum per share equal to the Original Series A Preferred Stock Issue Price plus any accrued but unpaid dividends on such share of Series A Preferred Stock as of the Redemption Date (the "Redemption Price").  For purposes hereof, an “IPO” shall mean an underwritten public offering of shares of Common Stock of the Corporation pursuant to a registration statement filed and effective under the Securities Act of 1933, as amended.

 

(b)        At least fifteen (15), but no more than sixty (60) days prior to each

Redemption Date, the Corporation shall mail written notice, first class postage prepaid, to each holder of record (at the close of business on the business day next preceding the day on which notice is given) of the Series A Preferred Stock at the address last shown on the records of the Corporation for such holder or given by the holder to the Corporation for the purpose of notice, notifying such holder of the redemption of the Series A Preferred Stock to be redeemed, specifying the number of shares which will be redeemed from such holder, the Redemption Date, the Redemption Price, the place at which payment may be obtained and such other information as the Corporation may deem advisable to provide (the "Redemption Notice").  In the event the Corporation is lawfully able to redeem only part of the then outstanding Series A Preferred Stock (a "Partial Redemption"), then the Series A Preferred Stock shall be redeemed ratably, in proportion to the product of the Original Series A Preferred Stock Issue Price of each such share and the number of such shares owned by each holder. At any time thereafter when additional funds of the Corporation are legally.available for the redemption of shares of Series A Preferred Stock, such funds will immediately be used to redeem the balance of the shares which the Corporation has become obliged to redeem on the Redemption Date (or such lesser maximum amount that shall be lawful at such time), but which it has not redeemed.

 

In the case of a redemption effected as the result of an IPO, the Redemption Notice may state that the redemption is conditioned upon the completion of the TO and may state an approximate Redemption Date.

 

(c)        Two (2) days prior to each Redemption Date, the Corporation shall deposit

the Redemption Price for all outstanding shares of Series A Preferred Stock designated for redemption with a bank or trust company having aggregate capital and surplus in excess of $150,000,000 as a trust fund for the benefit of the respective holders of the shares designated for redemption and not yet redeemed. Simultaneously, the Corporation shall deposit irrevocable instructions and authority to each bank or trust company to pay, on and after the Redemption Date, the Redemption Price of the shares of Series A Preferred Stock so designated for redemption to the holders thereof upon surrender of their certificates.

 

(d)        The date set forth in 3(a)(ii) may be extended for up to three (3) one-

year periods with the approval (by vote or written consent, as provided by law) of holders of six

and two-thirds percent (66 2/3%) of the outstanding shares of Series A Preferred Stock

 

4.         Status of Redeemed Stock.   In the event any shares of Series A Preferred Stock shall be redeemed pursuant to Section 3, the shares so redeemed shall be canceled and shall not be issuable by the Corporation.

 

5.         Protective Provisions

 

(a)        In addition to any other rights provided by law or set forth herein, so long as

any shares of Series A Preferred Stock are outstanding, the Corporation shall not without first obtaining the approval (by vote or written consent as provided by law) of the holders of sixty-          six and two-thirds percent (66 2/3%) of the outstanding shares of Series A Preferred Stock.

 

(i)         create, authorize or designate any shares of any class or series

of stock, (or issue any securities that are convertible into or exercisable for each a class or series) that are on a parity with or senior to the Series A Stock with respect to the payment of dividends or the distribution of assets on liquidation including, without limitation, authorization or issuance of additional shares of Series A Preferred Stock;

 

(ii)        create, authorize, designate or issue any sham of any class or series of

capital stock of the corporation or any securities that are directly or indirectly convertible into or exercisable for any class or series of capital stock of the Corporation, other than the issuance of Common Shares or options to acquire Common Shares to employees as approved by the Board of Directors of the Corporation;

 

 

 

 

(iii)       increase the authorized number of shares of any class or series of

capital stock of the Corporation;

 

(iv)       effect any liquidation or dissolution of the Corporation;

 

(v)        declare or pay any dividend on (including a dividend payable in stock

of the Corporation), make any other distribution with respect to, or repurchase, any stock of the Corporation or any other securities that are convertible into or exercisable for such stock except as permitted by the proviso to the first sentence of Section I (a)(ii);

 

(vi)       effect any merger or consolidation of the Corporation with or into

any other corporation or other entity;  sell, lease, exchange or otherwise dispose of, in a single transaction or a series of related transactions, all or substantially all of the assets of the Corporation; or effect any recapitalization of the Corporation; or

 

(vii)      amend this Certificate of Incorporation or the Corporation’s

Amended and Restated By-Laws in any manner that adversely affects the rights, preferences or privileges of the Series A Preferred Stock.

 

6.         Voting Rights.   Except as provided in this Certificate of Incorporation,

any Shareholders Agreements entered into by the holders of Series A Preferred Stock or required by applicable law, the holders of Series A Preferred Stock shall not have the right to vote.

 

(C)       Rights, Preferences, Privileges and Restrictions of Common Shares.  The rights,

preferences, privileges and restrictions granted to and imposed on the Common Stock and the

Nonvoting Common Stock are as follows:

 

I.          Dividend Rights.  Subject to the prior rights of holders of all classes of stock

at the time outstanding having prior rights as to dividends, the holders of the Common Shares shall

be entitled to receive, when, as and if declared by the Board of Directors, out of any assets of the Corporation legally available therefor, such dividends or other distributions as may be declared from time to time by the Board of Directors. When, as and if dividends or other distributions are declared, whether payable in cash, in property or in shares of stock of the Corporation, other than in shares of Common Stock or Nonvoting Common Stock, the holders of Common Stock and the holders of Nonvoting Common Stock shall be entitled, to share equally, share for share, in such dividends or other distributions, No dividends or other distributions shall be declared or paid with respect to the Common Shares in shares of Common Stock or Nonvoting Common Stock or options, warrants or rights to acquire such stock or securities convertible into or exchangeable for shares of such stock, except dividends or other distributions payable ratably according to the number of Common Shares held by the holders of such Common Shares in shares of, or options, warrants or rights to acquire, or securities convertible into or exchangeable for, Common Stock to holders of Common Stock and Nonvoting Common Stock to holders of Nonvoting Common Stock.

 

 

 

 

                        2.         Liquidation Rights.  In the event of any liquidation, dissolution or winding

up of the Corporation, either voluntarily or involuntarily, the assets of the Corpora6ou shall be

distributed as provided in Section 2 of Paragraph (8) of this Article IV.

 

3.         Voting Rights.

 

(a)        Except as otherwise provided in this Certificate of Incorporation, any

shareholders agreements entered into by the holders of Common Shares or required by applicable law, the holder of each share of Common Stock shall have the right to one vote for each such share, and shall be entitled to notice of any shareholders' meeting in accordance with the bylaws of the Corporation, and shall be entitled to vote upon such matters and in such manner as may be provided by law.

 

(b)        The holders of shares of Nonvoting Common Stock, shall not have the right

to vote and shall not be entitled to notice of any shareholders' meeting, except as expressly set forth herein or as may be required by law and except that such holders shall be entitled  to vote as a separate class on any amendment to this subsection 3(b) and on any amendment to this Certificate of Incorporation which adversely affects the rights, preferences or privileges of the Nonvoting Common Stock.

 

(c)        Except as otherwise provided in subsection (3)(b) above, on any matter on

which the holders of Common Stock and the holders of Nonvoting Common Stock are each entitled to vote, both classes of Common Shares entitled to vote shall vote together as a single class, and each holder of Common Shares entitled to vote shall be entitled to one vote for each share of Common Stock and one vote for each share of Nonvoting Common Stock held by such holder.

 

(d)        In addition to any affirmative vote required by law or by this Certificate of

Incorporation, the affirmative vote or written consent of the holders of not less than a majority of the then outstanding shares of both classes of Common, Shares, voting together as a single class, shall be required for any increase, reduction or other change in the authorized number of shares of any class of Common Shares.

 

4.         Conversion Rights of Common Stock and Nonvoting Common Stock.

 

(a)        Each share of Common Stock held-by a Regulated Stockholder (as

defined below) shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share, at the office of the Corporation or any transfer agent for the Common Stock, into one (1) fully-paid and non-assessable share of Nonvoting Common Stock..  Each share of Nonvoting Common Stock shall be convertible, at the option of the holder thereof,  at any time after the date of issuance of such share, at the office of the Corporation or any transfer agent for the Nonvoting Common Stock, into one (1) fully-paid and non-assessable share of Common Stock; provided, however, that no Regulation Y Stockholder (as defined below) shall be entitled to convert any such shares into shares of Common Stock to the extent that, as a result of such conversion, such holder and its affiliates, directly or indirectly, would own, control or have the power to vote a

 

 

 

greater number of shares of Common Stock or other securities of any kind issued by the Corporation than such holder and its affiliates shall be permitted to own, control or have the power to vote under any law, regulation, rule or other requirement of any governmental authority at the time applicable to such holder or its affiliates. Each conversion of shares of Common Stock into shares of Nonvoting Common Stock, and each conversion of shares of Nonvoting Common Stock into shares of Common Stock, shall be effected in the manner specified in Section 4(f) below.

 

            As used in this Certificate of Incorporation, the following terms shall have the meanings as set forth below:

 

            “Regulated Stockholder” means (a) any stockholder (i) that is subject to the provisions of Regulation Y of the Board of Governors of the Federal Reserve System (12 C.F.R- Part 225) or any successor to such regulation ("Regulation Y") or (ii) that is a federal licensee under the Small Business Investment Act of 1958, as amended (an "SDX"), and (b) any affiliates of any such Regulated Stockholder that is a transferee of any shares of capital stock of the Corporation, so long as such affiliate shall hold, and only with respect to, such shares of capital stock or shares issued upon conversion of such shares.

 

“Regulation Y Stockholder” means (a) any stockholder (other than an SBIC) that is subject To the provisions of Regulation Y and (b) any affiliate of any such Regulation Y Stockholder (other than an. SSIC) that is a transferee of any shares of capital stock of the Corporation, so long as such affiliate shall hold, and only with respect to, such shares of capital stock or shares issued upon conversion of such shares.

 

(b)        The Corporation shall at all times reserve and keep available out of

its authorized but unissued shares of Common Stock and Nonvoting Common Stock or its Treasury shares, solely for the purpose of issue upon conversion of shares of Nonvoting Common Stock and Common Stock, such number of shares of such class as shall then be issuable upon the conversion of all outstanding shares of Nonvoting Common Stock and Common Stock,

 

(c)        Shares of Common Stock and Nonvoting Common Stock that are

converted into shares of any other Class shall not be reissued, except for reissuance in connection

with the conversion of shares of Nonvoting Common Stock or Common Stock into shares of

Common Stock or Nonvoting Common Stock.

 

(d)        The issue of certificates; evidencing shares of Common Stock or

nonvoting Common Stock upon conversion of shares of Nonvoting Common Stock or Common

Stock, respectively, shall be made without charge to the holders of such shares for any issue tax in respect thereof or other cost incurred by the Corporation in connection with such conversion; provided, however,  the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the holder of the shares of Common Stock or Nonvoting Common Stock converted.

 

 

 

(e)        If the Corporation shall in any manner subdivide (by stock split, stock

dividend or otherwise) or combine (by reverse stock split or otherwise) the outstanding shares of the Common Stock or the Nonvoting Common Stock, the outstanding shares of the other class of Common Shares shall be proportionately subdivided or combined, as the case may be, and effective provision shall be made for the protection of all conversion rights of the Common Stock and Nonvoting Common Stock hereunder. In case of any reorganization, reclassification or change of Common Shares, or in case of any consolidation of the Corporation with one or more other corporations or a merger of the Corporation with another entity (other than a consolidation or merger in which the Corporation  is the continuing entity and which does not result in any reclassification or change of outstanding Common Shares), or in the case of any sale, lease or other disposition to another entity (other than a wholly owned subsidiary of the Corporation) of all or substantially all the assets of the Corporation, each holder of a share of Common Stock or Nonvoting Common Stock shall have the right at any time thereafter, so long as the conversion right hereunder with respect to such Common Share would exist had such event not occurred, to convert such share into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reorganization, reclassification, change, consolidation, merger, sale, lease of other disposition by a holder of the number of Common Shares of the class into which such Common Shares might have been converted immediately prior to such reorganization, reclassification, change, consolidation, merger, sale, lease or other disposition. In the event of such a reorganization, reclassification, change, consolidation, merger, sale, lease or other disposition, effective provision shall be made in the charter of the resulting or surviving corporation or otherwise for the protection of the conversion rights of the Common Shares of each class that shall be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities and property deliverable upon conversion of Common Shares into which such Common Shares might have been convened immediately prior to such event. The Corporation shall not be a party to any merger, consolidation or recapitalization pursuant to which any holder of shares of Nonvoting Common Stock would be required to take (i) any voting securities which would cause such holder to violate any law, regulation or other requirement of any governmental body applicable to such holder, or (ii) any securities convertible into voting securities which if such conversion took place would cause such holder to violate any law, regulation or other requirernent of my governmental body applicable to such holder, other than securities which are specifically provided to be convertible only in the event that such conversion may occur without any such violation.

 

                        (f)         Mechanics of Conversion.

 

(i)         Each conversion of Common Shares of the Corporation into another

 class of Common Shares of the Corporation as provided in this Section 4 shall be effected by the surrender of the certificate(s) evidencing the Common Shares to be converted (The "Converting Shares") at the principal office of the Corporation (or such other office or agency of the Corporation as the Corporation may designate by notice in writing to the holders of such Common Shares) at any time during its usual business hours, together with written notice by the holder of such Converting Shares, (i) stating that the holder desires to convert the Converting Shares or a specified number of such Converting Shares, evidenced by such certificate(s) into shares of the class into which such shares may be converted , the "Converted Shares"), and (ii) giving the name(s) (with addresses) and denominations in which the certificate(s) evidencing the Converted Shares shall be issued, and instructions for the delivery thereof .  The Corporation shall promptly notify each Regulated Stockholder of record of its receipt of such notice. Except as otherwise provided in subsection 4(f)(ii), upon receipt of the notice described in the first sentence of this subsection 4(f)(i), together with the certificates(s) evidencing the Converting Shares, the Corporation shall be obligated to, and shall, issue and deliver in accordance with such instructions the certificate(s) evidencing the Converted Shares issuable upon such conversion and a certificate

(which shall contain such legends, if any, as were set forth on the surrendered certificate(s)) representing any shares which were represented by the certificate(s) surrendered to the Corporation in connection with such conversion but which were not Converting Shares and, therefore, were not converted; provided, however, that if such conversion is subject to subsection 4(f)(iv) below, the Corporation shall not issue such certificate(s) until the expiration of The Deferral Period referred to therein. Such conversion, to the extent permitted by law, "shall be deemed to have been effected as of the close of business on the date on which such certificate(s) shall have been surrendered and such written notice " have been received by the Corporation, and at such time the rights of the holder of such Converting Shares as such holder shall cease (except that in the case of a conversion subject to Subsection 4(t)(iv) below, the conversion shall be deemed effective upon expiration of the Deferral Period referred to therein), and the person(s) in whose name or names any certificate(s) evidencing the Converted Shares are to be issued upon such conversion shall be deemed to have become the holder(s) of record of the Converted Shares.

 

(ii)        Notwithstanding any provision of subsection 4(f)(i) to the contrary,

the Corporation shall not be required to record the conversion of, and no Regulation Y Stockholder shall be entitled to convert shares of Nonvoting Common Stock into shares of Common Stock unless such conversion is permitted under applicable law; provided, however, that the Corporation shall be entitled to rely without independent verification upon the representation of any holder that the conversion of shares by such holder is permitted under applicable law, and in no event shall the Corporation be liable to any such holder or any third party arising from any such conversion whether or not permitted by applicable law.

 

(iii)       Upon the issuance of the Converted Shares in accordance with this

Section 4, such shares shall be deemed to be duly authorized, validly issued, fully paid and non-assessable.

 

(iv)       The Corporation shall not convert or directly or indirectly redeem,

purchase or otherwise acquire any shares of Series A Preferred Stock or Common Shares or take any other action affecting the voting rights of such shares, if such action will increase the percentage of outstanding voting securities owned or controlled by any Regulation Y Stockholder (other than the stockholder which requested that the Corporation take such action, or which otherwise waives in writing its rights under this subsection 4(f)(iv)) unless the Corporation has complied with this Section 4(f)(iv). In such event, the Corporation shall promptly (and in any event, within 5 days) give written notice (the "First Notice") of such action to each such Regulation Y Stockholder. The Corporation will defer making any conversion, redemption, purchase or other acquisition or taking any such other action for a period of 30 days (the "Deferral Period”) after giving the First Notice in order to allow each such Regulation Y Stockholder to determine whether it wishes to convert or take any other action with respect to the Common Shares it owns, controls

 

or has the power to vote, and if any such Regulation Y Stockholder then elects to convert any shares of Common Shares, it shall notify the Corporation in writing within 20 days of the issuance of the First Notice, in which case the Corporation (i ) shall promptly notify from time to time each other Regulation Y Stockholder holding shares of each proposed conversion and the proposed transactions and (ii) effect the conversion requested by all Regulation Y Stockholders in response to the notices issued pursuant to this subsection 4(f)(iv) at the end of the Deferral Period or as soon thereafter as is reasonably practicable.  Notwithstanding the foregoing, at any time at which any Common Shares are held by a Regulation Y Stockholder, the Corporation will not directly or indirectly redeem, purchase, or acquire Common Shares or take any other action affecting outstanding Common Shares if such action will increase above 4.9% the percentage of any class of voting securities of the Corporation, or increase above 24.9% the percentage of outstanding Common Shares, owned, held or controlled by any Regulation Y Stockholder (other than a stockholder which waives in writing its rights under this section 4).

 

                                    (iv)       If the conversion is in connection with an underwritten offer  of securities registered pursuant to the Securities Act of 1933, as amended, the conversion may, at the option of any holder tendering capital stock for conversion as permitted herein, be conditioned upon the closing of such underwritten sale of securities pursuant to such offering in which event the person(s) entitled to receive the shares issuable upon such conversion shall not be deemed to have converted such shares until immediately prior to the closing of such sale of securities.

 

            FIFTH:  The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation and for further definition, limitation and regulation of the powers of the Corporation and 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 directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-laws of the Corporation.

 

            (C)       Election of directors need not be by written ballot unless the By-Laws so provide.

 

            (D)       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 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:  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.

 

SEVENTH:  No director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that to the extent required by the provisions of Section 102(b)(7) of the GCL or any successor statute, or any other laws of the State of Delaware, this provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of The GCL or (iv) for any transaction from which the director derived an unproper personal benefit. If the GCL hereafter is amended to authorize the further elimination of or limitation on personal liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended GCL. Any repeat or modification of this Article Seventh by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification. The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section and, as provided in said section, shall advance expenses, including reasonable attorneys' fees, if any and all such persons, and the indemnification and advancement of expenses provided for herein shall not be deemed exclusive of any other rights to which a person seeking indemnification or.advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.

 

EIGHTH: Whenever a compromise or arrangement is proposed between the

Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under Section 291 of Title 8 of the GCL or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under Section 279 of Title 8 of the GCL, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.

 

This Amended and Restated Certificate of Incorporation was duly adopted in

accordance with the provisions of Sections 242 and 245 of the GCL.

 

IN WITNESS WHEREOF, the Corporation caused this Amended and

Restated Certificate  of Incorporation to be executed by its President and attested to by its Secretary on this 25th day of October, 1999.

 

 

 

 

 

 

 

By: ______________________________

            John McIntyre,

            President

 

 

 

Attest:

 

 

 

By: _______________________________

            John Zdanowski,

            Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDED

AND

RESTATED

 

BY-LAWS

 

OF

 

EBIZ.NET, INC.

 

---------

 

ARTICLE I

 

SHAREHOLDERS AGREEMENT

 

SECTION 1. BYLAWS SUBJECT TO SHAREHOLDERS AGREEMENT.

--Each of the provisions of these By-laws are subject to and qualified by reference to the provisions of the Shareholders Agreement dated as of October 25, 1999 entered into by and among the corporation and the parties listed on Schedule A thereto (the "Shareholders Agreement"). Without limiting the generality of the foregoing, in the event of conflict between any provision of the By-laws and any provision of the Shareholders Agreement, the terms and conditions of the Shareholders Agreement shall control

 

ARTICLE II

 

OFFICES

 

                                    SECTION 1.  REGISTERED OFFICE – The registered office shall be

established and maintained at the office of CorpAmerica, in the City of Dover, in the County of Kent, in the State of Delaware, and said corporation shall be the registered agent of this corporation in charge thereof.

 

SECTION 2. OTHER OFFICES.--The corporation may have other offices,

either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

 

ARTICLE III

 

MEETINGS OF STOCKHOLDERS

 

 

                                    SECTION 1.  ANNUAL MEETINGS. – Annual meetings of

stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware,

 

and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.

 

                                    If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day.  At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

 

                                    SECTION 2.  OTHER MEETINGS. – Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

 

                                    SECTION 3.  VOTING. – Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period.  Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot.  All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

 

                                    A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held.  The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

 

                                    SECTION 4.  QUORUM. – Except as otherwise required by law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders.  In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present.  At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

 

                       

 

 

 

 

 

 

 

 

SECTION 5. SPECIAL MEETINGS.--Special meetings of the stockholders for any

purpose or purposes maybe called by the President or Secretary, or by resolution of the directors or by vote of the stockholders holding twenty five (25) percent or more of the outstanding stock of the corporation.

 

SECTION 6. NOTICE OF MEETINGS.--Written notice, stating the place, date

and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

 

SECTION 7. ACTION WITHOUT MEETING.--Unless otherwise provided by the

Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

ARTICLE IV

 

DIRECTORS

 

SECTION 1. NUMBER AND TERM.--The number of directors constituting the

Board of Directors shall be not more than nine nor less than one, as fixed from time to time by action of the stockholders or the Board of Directors. The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his or her successor shall be elected and shall qualify. Directors need not be stockholders.

 

SECTION 2. RESIGNATIONS.--Any director, member of a. committee or other

officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

 

SECTION 3. VACANCIES.--If the office of any director, member of a committee

or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen provided, however, that if there are no directors then in office due to such a vacancy, the stockholders may elect a successor who shall hold office for the unexpired term and until his successor shall be elected and qualified.

 

SECTION 4. REMOVAL.--Except as hereinafter provided, any director or directors

may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

 

Unless the Certificate of Incorporation otherwise provides, stockholders .may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.

 

            If the holders of any class or series are entitled to- elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

 

SECTION 5. INCREASE OF NUMBER.--The number of directors may be

increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

 

SECTION 6. POWERS.--The Board of Directors shall exercise all of the powers of

the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

 

SECTION 7. COMMITTEES.--The Board of Directors may, by resolution or

resolutions passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

 

 

 

 

Any such committee, to the extent provided in the resolution of the Board of

Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these ByLaws or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

 

SECTION 8. MEETINGS.--The newly elected directors,may hold their first meeting

for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

 

Regular meetings of the directors may be held without notice at such places and

times as shall be determined from time to time by resolution of the directors.

 

Special meetings of the board may be called by the President or by the Secretary on

the written request of any two directors on at least two days' notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

 

Unless otherwise restricted by the Certificate of Incorporation or these By-Laws,

members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall presence in person at the meeting.

 

SECTION 9. QUORUM.--A majority of the directors shall constitute a

quorum for the transaction of business. If at any meeting of the board. there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

 

SECTION 10. COMPENSATION. --Directors shall not receive any stated salary for

their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

 

 

 

SECTION 11. ACTION WITHOUT MEETING. --Any action required, or

permitted to be taken at any meting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

 

ARTICLE V

 

OFFICERS

 

SECTION 1. OFFICERS.--The officers of the corporation shall be a

President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualified. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

 

SECTION 2. OTHER OFFICERS AND AGENTS.--The Board of Directors

may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

 

SECTION 3. CHAIRMAN.--The Chairman of the Board of Directors, if

one be elected shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

 

SECTION 4. PRESIDENT.--The President shall preside at all meetings of

the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation subject to the authorization and control of the Board of Directors. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts on behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

 

SECTION 5. VICE-PRESIDENT.--Each Vice-President shall have such

powers and shall perform such duties as shall be assigned to him by the directors.

 

SECTION 6. TREASURERS. --The Treasurer shall have the custody of the

corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation. He shall deposit all moneys and other

 

 

 

valuables in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors.

 

The Treasurer shall disburse the funds of the corporation as may be ordered

by the Board of Directors, or the President, taking proper vouchers for such disbursements. He shall render to the President and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he shall give the corporation a bond for the faithful discharge of his duties in such amount and with such surety as the board shall prescribe.

 

SECTION 7. SECRETARY.--The Secretary shall give, or cause to be given,

notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

 

SECTION 8. ASSISTANT TREASURERS AND ASSISTANT

SECRETARIES. --Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

 

ARTICLE VI

 

MISCELLANEOUS

 

SECTION 1. CERTIFICATES OF STOCK.--Certificates of stock, signed by

the Chairman or Vice Chairman of the Board of Directors, if they be elected, President. or Vice- President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any or all the signatures may be facsimiles.

 

SECTION 2. LOST CERTIFICATES. --A new certificate of stock may be issued in

the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against, any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

 

 

 

 

 

 

SECTION 3. TRANSFER OF SHARES.--The shares of stock of the corporation

shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person. in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

 

SECTION 4. STOCKHOLDERS RECORD DATE.--In order that the corporation

may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

SECTION 5. DIVIDENDS. --Subject to the provisions of the Certificate of

Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

 

SECTION 6. SEAL.--The corporate seal shall be circular in form and shall

contain the name of the corporation, the year of its creation and the words "CORPORATE SEAL DELAWARE." Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

SECTION 7. FISCAL YEAR.--The fiscal year of the corporation shall

be determined by resolution of the Board of Directors.

 

SECTION 8. CHECKS, All checks, drafts or other orders for the payment of

money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from. time to time by resolution of the Board of Directors.

 

 

SECTION 9. NOTICE AND WAIVER OF NOTICE.--Whenever any notice

is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

 

Whenever any notice whatsoever is required to be given under the provisions

of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

ARTICLE VII

 

AMENDMENTS

 

These By-Laws may be altered or repealed and 13-y-Laws may be made at

any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and -entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special meeting.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I HEREBY CERTIFY that the foregoing is a full, true and correct copy of

the By-Laws of eBiz.net, Inc., a Delaware Corporation, as in effect on the date hereof.

 

 

                                                                                                                                   

                                                                        John Zdanowski, Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State of Delaware

 

Office of the Secretary of State

 

 

 

 

            I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF

 

DELAWARE, DO HEREBY CERTIFY THAT THE SAID “EBIZ.NET, INC.”,

 

FILED A CERTIFICATE OF AMENDMENT, CHANGING ITS NAME TO “AFFINITY

 

INTERNET, INC.”, THE ELEVENTH DAY OF MAY, A.D. 2000, AT 6

 

O’CLOCK P.M.

 

 

 

 

 

 

 

                                                           

 

 

 

 

 

                                                                                                                                   

                                                                        Edward J. Freel, Secretary of State

 

3110415    8320                                              AUTHENTICATION:    0434636

 

                                                                                    DATE:                 05-12-00

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF AMENDMENT OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

EBIZ.NET, INC.

 

 

            eBiz.net, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

 

            DOES HEREBY CERTIFY:

 

            FIRST:  That by a unanimous written consent of the Board of Directors of eBiz.net, Inc., dated as of the date hereof, resolutions were duly adopted setting forth a proposed amendment of the Amended and Restated Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof.  The resolution setting forth the proposed amendment is as follows:

 

                        RESOLVED, that, subject to the approval of the stockholders of this

            Corporation, the First Article of the Amended and Restated Certificate of

            Incorporation of this Corporation be, and it hereby is, amended in its entirety to

            read in full as follows:

 

                        “FIRST:  The name of the corporation is Affinity Internet, Inc. (the

            “Corporation”).”

 

                        SECOND:  That thereafter, pursuant to resolution of its Board of Directors, the majority stockholders of said corporation took action by executing a written consent in lieu of special meeting in accordance with Section 228 of the General Corporation Law of the State of Delaware pursuant to which a majority of the outstanding number of shares was voted in favor of the amendment.

 

                        THIRD:  That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

                        FOURTH:  That the capital of said corporation shall not be reduced under or by reason of said amendment.

 

            IN WITNESS WHEREOF, eBiz.net, Inc. has caused this certificate to be signed by John McIntyre , its President and Chief Executive Officer, this 11th day of May, 2000.

 

 

                                                            By:                                                                              

                                                                        John McIntyre, President and Chief

                                                                        Executive Officer

 

 

State of Delaware

 

Office of the Secretary of State

 

 

 

 

            I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF

 

DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT

 

COPY OF THE CERTIFICATE OF AMENDMENT OF “EBIZ.NET, INC.”,

 

CHANGING ITS NAME FROM “EBIZ.NET, INC.” TO AFFINITY INTERNET,

 

INC.”, FILED IN THIS OFFICE ON THE ELEVENTH DAY OF MAY, A.D.

 

2000. AT 6  O’CLOCK P.M.

           

            A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE

 

NEW CASTLE COUNTY RECORDER OF DEEDS.

 

 

 

 

 

 

 

 

 

 

                                                                                                                                   

                                                            Edward J. Freel, Secretary of State

 

 

 

 

3110415    8100                                  AUTHENTICATION: 0434511

 

001242513                                                      DATE:                         05-12-00

 

 

 

 

State of Delaware

 

Office of the Secretary of State

 

 

 

 

            I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF

 

DELAWARE, DO HEREBY CERTIFY THE SAID “EBIZ.NET, INC.”, FILED A CERTIFICATE

 

OF AMENDMENT, CHANGING ITS NAME FROM “EBIZ.NET, INC.” TO AFFINITY

 

INTERNET, INC.”,  THE ELEVENTH DAY OF MAY, A.D.2000. AT 6  O’CLOCK P.M.

           

 

 

 

 

 

 

 

 

 

                                                                                                                                   

                                                            Edward J. Freel, Secretary of State

 

 

 

 

3110415    8320                                  AUTHENTICATION: 0434636

 

001242718                                                      DATE:                         05-12-00