**Exhibit 3.4**

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**CERTIFICATE OFDESIGNATION OF RIGHTS, PREFERENCES AND PRIVILEGES OF SERIES D PARTICIPATINGPREFERRED STOCK OF INTRAWARE, INC.**

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The undersigned, Peter Jackson, does hereby certify:

 

1.             Thathe is duly elected and acting President and Chief Executive Officer ofIntraware, Inc., a Delaware corporation (the ***“Corporation”***).

 

2.             Thatpursuant to the authority conferred upon the Board of Directors by the Amendedand Restated Certificate of Incorporation of the said Corporation, the saidBoard of Directors of the Corporation on September 8, 2005 adopted thefollowing resolutions creating a series of 0.0001 shares of Preferred Stockdesignated as Series D Participating Preferred Stock:

 

“RESOLVED, that pursuant to the authority vested inthe Board of Directors of the corporation by the Amended and RestatedCertificate of Incorporation, the Board of Directors does hereby provide forthe issue of a series of Preferred Stock of the Corporation and does hereby fixand herein state and express the designations, powers, preferences and relativeand other special rights and the qualifications, limitations and restrictionsof such series of Preferred Stock as follows:

 

Section 1.               Designationand Amount.  The shares ofsuch series shall be designated as ***“Series D ParticipatingPreferred Stock.”*** The Series D Participating PreferredStock shall have a par value of $0.0001 per share, and the number of sharesconstituting such series shall be 300,000.

 

Section 2.               ProportionalAdjustment.  In the event thatthe Corporation shall at any time after the issuance of any share or shares of Series DParticipating Preferred Stock (i) declare any dividend on Common Stock ofthe Corporation (***“Common Stock”***) payable inshares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combinethe outstanding Common Stock into a smaller number of shares, then in each suchcase the Corporation shall simultaneously effect a proportional adjustment tothe number of outstanding shares of Series D Participating PreferredStock.

 

Section 3.               Dividendsand Distributions.

 

(a)           Subject to the prior and superiorright of the holders of any shares of any series of Preferred Stock rankingprior and superior to the shares of Series D Participating Preferred Stockwith respect to dividends, the holders of shares of Series D ParticipatingPreferred Stock shall be entitled to receive when, as and if declared by theBoard of Directors out of funds legally available for the purpose, quarterlydividends payable in cash on the last day of January, April, July, and October ineach year (each such date being referred to herein as a ***“QuarterlyDividend Payment Date”***), commencing on the first QuarterlyDividend Payment Date after the first issuance of a share or fraction of ashare of Series D Participating Preferred Stock, in an amount per share(rounded to the nearest cent) equal to 1,000 times the aggregate per shareamount of all cash dividends, and 1,000 times the aggregate per share amount(payable in kind) of all non-cash dividends or other distributions other than adividend payable in shares of Common Stock or a subdivision of the outstandingshares of Common Stock (by reclassification or otherwise), declared on theCommon Stock since the immediately preceding Quarterly Dividend Payment Date, or,with respect to the first Quarterly Dividend Payment Date, since the firstissuance of any share or fraction of a share of Series D ParticipatingPreferred Stock.

 

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(b)           The Corporation shall declare adividend or distribution on the Series D Participating Preferred Stock asprovided in paragraph (a) above immediately after it declares adividend or distribution on the Common Stock (other than a dividend payable inshares of Common Stock).

 

(c)           Dividends shall begin to accrue onoutstanding shares of Series D Participating Preferred Stock from theQuarterly Dividend Payment Date first following the date of issue of suchshares of Series D Participating Preferred Stock, unless the date of issueof such shares is prior to the record date for the first Quarterly DividendPayment Date, in which case dividends on such shares shall begin to accrue fromthe date of issue of such shares, or unless the date of issue is a QuarterlyDividend Payment Date or is a date after the record date for the determinationof holders of shares of Series D Participating Preferred Stock entitled toreceive a quarterly dividend and before such Quarterly Dividend Payment Date,in either of which events such dividends shall begin to accrue from suchQuarterly Dividend Payment Date.  Accruedbut unpaid dividends shall not bear interest. Dividends paid on the shares of Series D Participating PreferredStock in an amount less than the total amount of such dividends at the timeaccrued and payable on such shares shall be allocated pro rata on ashare-by-share basis among all such shares at the time outstanding.  The Board of Directors may fix a record datefor the determination of holders of shares of Series D ParticipatingPreferred Stock entitled to receive payment of a dividend or distributiondeclared thereon, which record date shall be no more than 30 days prior to thedate fixed for the payment thereof.

 

Section 4.               VotingRights.  The holders of sharesof Series D Participating Preferred Stock shall have the following votingrights:

 

(a)           Each share of Series DParticipating Preferred Stock shall entitle the holder thereof to 1,000 voteson all matters submitted to a vote of the stockholders of the Corporation.

 

(b)           Except as otherwise provided hereinor by law, the holders of shares of Series D Participating Preferred Stockand the holders of shares of Common Stock shall vote together as one class onall matters submitted to a vote of stockholders of the Corporation.

 

(c)           Except as required by law, theholders of Series D Participating Preferred Stock shall have no specialvoting rights and their consent shall not be required (except to the extentthat they are entitled to vote with holders of Common Stock as set forthherein) for taking any corporate action.

 

Section 5.               CertainRestrictions.

 

(a)           The Corporation shall not declare anydividend on, make any distribution on, or redeem or purchase or otherwiseacquire for consideration any shares of Common Stock after the

 

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first issuance of a share or fraction of a share of Series DParticipating Preferred Stock unless concurrently therewith it shall declare adividend on the Series D Participating Preferred Stock as required by Section 3hereof.

 

(b)           Whenever quarterly dividends or otherdividends or distributions payable on the Series D Participating PreferredStock as provided in Section 3 are in arrears, thereafter and until allaccrued and unpaid dividends and distributions, whether or not declared, onshares of Series D Participating Preferred Stock outstanding shall havebeen paid in full, the Corporation shall not

 

(i)            declare or pay dividends on, makeany other distributions on, or redeem or purchase or otherwise acquire forconsideration any shares of stock ranking junior (either as to dividends orupon liquidation, dissolution or winding up) to the Series D ParticipatingPreferred Stock;

 

(ii)           declare or pay dividends on, or makeany other distributions on any shares of stock ranking on a parity (either asto dividends or upon liquidation, dissolution or winding up) with the Series DParticipating Preferred Stock, except dividends paid ratably on the Series DParticipating Preferred Stock and all such parity stock on which dividends arepayable or in arrears in proportion to the total amounts to which the holdersof all such shares are then entitled;

 

(iii)          redeem or purchase or otherwiseacquire for consideration shares of any stock ranking on a parity (either as todividends or upon liquidation, dissolution or winding up) with the Series DParticipating Preferred Stock, provided that the Corporation may at any timeredeem, purchase or otherwise acquire shares of any such parity stock inexchange for shares of any stock of the Corporation ranking junior (either asto dividends or upon dissolution, liquidation or winding up) to the Series DParticipating Preferred Stock;

 

(iv)          purchase or otherwise acquire forconsideration any shares of Series D Participating Preferred Stock, or anyshares of stock ranking on a parity with the Series D ParticipatingPreferred Stock, except in accordance with a purchase offer made in writing orby publication (as determined by the Board of Directors) to all holders of suchshares upon such terms as the Board of Directors, after consideration of therespective annual dividend rates and other relative rights and preferences ofthe respective Series and classes, shall determine in good faith willresult in fair and equitable treatment among the respective series or classes.

 

(c)           The Corporation shall not permit anysubsidiary of the Corporation to purchase or otherwise acquire forconsideration any shares of stock of the Corporation unless the Corporationcould, under paragraph (a) of this Section 5, purchase orotherwise acquire such shares at such time and in such manner.

 

Section 6.               ReacquiredShares.  Any shares of Series DParticipating Preferred Stock purchased or otherwise acquired by theCorporation in any manner whatsoever shall be retired and canceled promptlyafter the acquisition thereof.  All suchshares shall upon their cancellation become authorized but unissued shares ofPreferred Stock and may be reissued as part of a new series of Preferred Stockto be created by resolution or resolutions of the Board of Directors, subjectto the

 

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conditions and restrictions onissuance set forth herein and in the Amended and Restated Certificate ofIncorporation, as then amended.

 

Section 7.               Liquidation,Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, theholders of shares of Series D Participating Preferred Stock shall beentitled to receive an aggregate amount per share equal to 1,000 times theaggregate amount to be distributed per share to holders of shares of CommonStock plus an amount equal to any accrued and unpaid dividends on such sharesof Series D Participating Preferred Stock.

 

Section 8.               Consolidation,Merger, etc.  In case theCorporation shall enter into any consolidation, merger, combination or othertransaction in which the shares of Common Stock are exchanged for or changedinto other stock or securities, cash and/or any other property, then in anysuch case the shares of Series D Participating Preferred Stock shall atthe same time be similarly exchanged or changed in an amount per share equal to1,000 times the aggregate amount of stock, securities, cash and/or any otherproperty (payable in kind), as the case may be, into which or for which eachshare of Common Stock is changed or exchanged.

 

Section 9.               No Redemption.  The shares of Series D ParticipatingPreferred Stock shall not be redeemable.

 

Section 10.             Ranking.  The Series D Participating PreferredStock shall rank junior to all other series of the Corporation’s PreferredStock as to the payment of dividends and the distribution of assets, unless theterms of any such series shall provide otherwise.

 

Section 11.             Amendment.  The Amended and Restated Certificate ofIncorporation of the Corporation shall not be further amended in any mannerwhich would materially alter or change the powers, preference or special rightsof the Series D Participating Preferred Stock so as to affect themadversely without the affirmative vote of the holders of a majority of theoutstanding shares of Series D Participating Preferred Stock, votingseparately as a series.

 

Section 12.             FractionalShares.  Series D ParticipatingPreferred Stock may be issued in fractions of a share which shall entitle theholder, in proportion to such holder’s fractional shares, to exercise votingrights, receive dividends, participate indistributions and to have the benefit of all other rights of holders of Series DParticipating Preferred Stock.

 

RESOLVED FURTHER, that the President, Chief ExecutiveOfficer or any Vice President and the Secretary or any Assistant Secretary ofthis corporation be, and they hereby are, authorized and directed to prepareand file a Certificate of Designation of Rights, Preferences and Privileges inaccordance with the foregoing resolution and the provisions of Delaware law andto take such actions as they may deem necessary or appropriate to carry out theintent of the foregoing resolution.”

 

I further declare under penalty of perjury that thematters set forth in the foregoing Certificate of Designation are true andcorrect of my own knowledge.

 

Executed at Orinda,California, on September 23, 2005.

 
|   | /s/ PETER JACKSON                      |   |
|--------|----------------------------------------|--------|
|   | Peter Jackson                          |
|   | President and  Chief Executive Officer |

 

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