Exhibit 3.3
RESTATED BYLAWS
OF
ADFORCE, INC.
(A DELAWARE CORPORATION)
As Adopted February 18, 1999
RESTATED BYLAWS
OF
ADFORCE, INC.
a Delaware corporation
TABLE OF CONTENTS
PAGE
----
ARTICLE I - STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1: Annual Meetings . . . . . . . . . . . . . . . . . . . 1
Section 1.2: Special Meetings. . . . . . . . . . . . . . . . . . . 1
Section 1.3: Notice of Meetings. . . . . . . . . . . . . . . . . . 1
Section 1.4: Adjournments. . . . . . . . . . . . . . . . . . . . . 1
Section 1.5: Quorum. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6: Organization. . . . . . . . . . . . . . . . . . . . . 2
Section 1.7: Voting; Proxies . . . . . . . . . . . . . . . . . . . 2
Section 1.8: Fixing Date for Determination of Stockholders
of Record . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.9: List of Stockholders Entitled to Vote . . . . . . . . 3
Section 1.10: Action by Written Consent of Stockholders . . . . . .. 3
Section 1.11: Inspectors of Elections . . . . . . . . . . . . . . . 4
Section 1.12: Notice of Stockholder Business; Nominations . . . . . 5
ARTICLE II - BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . 7
Section 2.1: Number; Qualifications. . . . . . . . . . . . . . . . 7
Section 2.2: Election; Resignation; Removal; Vacancies . . . . . . 7
Section 2.3: Regular Meetings. . . . . . . . . . . . . . . . . . . 8
i
RESTATED BYLAWS
OF
ADFORCE, INC.
a Delaware corporation
TABLE OF CONTENTS (CONT'D)
PAGE
----
Section 2.4: Special Meetings. . . . . . . . . . . . . . . . . . . 8
Section 2.5: Telephonic Meetings Permitted . . . . . . . . . . . . 8
Section 2.6: Quorum; Vote Required for Action. . . . . . . . . . . 9
Section 2.7: Organization. . . . . . . . . . . . . . . . . . . . . 9
Section 2.8: Written Action by Directors . . . . . . . . . . . . . 9
Section 2.9: Powers. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.10: Compensation of Directors . . . . . . . . . . . . . . 9
ARTICLE III - COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1: Committees. . . . . . . . . . . . . . . . . . . . . . 9
Section 3.2: Committee Rules . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV - OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.1: Generally . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.2: Chief Executive Officer . . . . . . . . . . . . . . . 10
Section 4.3: Chairperson of the Board. . . . . . . . . . . . . . . 11
Section 4.4: President . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.5: Vice President. . . . . . . . . . . . . . . . . . . . 11
Section 4.6: Chief Financial Officer . . . . . . . . . . . . . . . 11
Section 4.7: Treasurer . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.8: Secretary . . . . . . . . . . . . . . . . . . . . . . 12
ii
RESTATED BYLAWS
OF
ADFORCE, INC.
a Delaware corporation
TABLE OF CONTENTS (CONT'D)
PAGE
----
Section 4.9: Delegation of Authority . . . . . . . . . . . . . . . 12
Section 4.10: Removal . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V - STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.l: Certificates. . . . . . . . . . . . . . . . . . . . . 12
Section 5.2: Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificate . . . . . . . . . . . . . 12
Section 5.3: Other Regulations . . . . . . . . . . . . . . . . . . 12
ARTICLE VI - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.1: Indemnification of Officers and Directors . . . . . . 13
Section 6.2: Advance of Expenses . . . . . . . . . . . . . . . . . 13
Section 6.3: Non-Exclusivity of Rights . . . . . . . . . . . . . . 13
Section 6.4: Indemnification Contracts . . . . . . . . . . . . . . 14
Section 6.5: Effect of Amendment . . . . . . . . . . . . . . . . . 14
ARTICLE VII - NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.l: Notice. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.2: Waiver of Notice. . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII - INTERESTED DIRECTORS. . . . . . . . . . . . . . . . . . . . 15
Section 8.1: Interested Directors; Quorum. . . . . . . . . . . . . 15
iii
RESTATED BYLAWS
OF
ADFORCE, INC.
a Delaware corporation
TABLE OF CONTENTS (CONT'D)
PAGE
----
ARTICLE IX - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9.1: Fiscal Year . . . . . . . . . . . . . . . . . . . . . 15
Section 9.2: Seal. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9.3: Form of Records . . . . . . . . . . . . . . . . . . . 15
Section 9.4: Reliance Upon Books and Records . . . . . . . . . . . 15
Section 9.5: Certificate of Incorporation Governs. . . . . . . . . 16
Section 9.6: Severability. . . . . . . . . . . . . . . . . . . . . 16
ARTICLE X - AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10.1: Amendments. . . . . . . . . . . . . . . . . . . . . . 16
iv
RESTATED BYLAWS
OF
ADFORCE, INC.
(a Delaware corporation)
As Adopted February 18, 1999
ARTICLE I
STOCKHOLDERS
SECTION 1.1: ANNUAL MEETINGS. An annual meeting of stockholders
shall be held for the election of directors at such date, time and place,
either within or without the State of Delaware, as the Board of Directors
shall each year fix. Any other proper business may be transacted at the
annual meeting.
SECTION 1.2: SPECIAL MEETINGS. Special meetings of stockholders for
any purpose or purposes may be called at any time by the Board of Directors,
and shall be called upon the request of the Chairperson of the Board of
Directors, the Chief Executive Officer, the President or by a majority of the
members of the Board of Directors. Special meetings may not be called by any
other person or persons. If a special meeting of stockholders is called at
the request of any person or persons OTHER THAN by a majority of the members
of the Board of Directors, then such person or persons shall request such
meeting by delivering a written request to call such meeting to each member
of the Board of Directors, and the Board of Directors shall then determine
the time, date and place of such special meeting, which shall be held not
more than one hundred twenty (120) nor less than thirty-five (35) days after
the written request to call such special meeting was delivered to each member
of the Board of Directors.
SECTION 1.3: NOTICE OF MEETINGS. Written notice of all meetings of
stockholders shall be given stating the place, date and time of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by applicable law or the
Certificate of Incorporation of the Corporation, such notice shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder of record entitled to vote at such meeting.
SECTION 1.4: ADJOURNMENTS. Any meeting of stockholders may adjourn
from time to time to reconvene at the same or another place, and notice need
not be given of any such adjourned meeting if the time, date and place
thereof are announced at the meeting at which the adjournment is taken;
PROVIDED, HOWEVER, that if the adjournment is for more than thirty (30) days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, then a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at
the meeting. At the adjourned meeting the Corporation may transact any
business that might have been transacted at the original meeting.
SECTION 1.5: QUORUM. At each meeting of stockholders the holders of
a majority of the shares of stock entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the transaction
of business, except if otherwise required by applicable law. If a quorum
shall fail to attend any meeting, the chairperson of the meeting or the
holders of a majority of the shares entitled to vote who are present, in
person or by proxy, at the meeting may adjourn the meeting. Shares of the
Corporation's stock belonging to the Corporation (or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation are held, directly or indirectly, by the Corporation),
shall neither be entitled to vote nor be counted for quorum purposes;
PROVIDED, HOWEVER, that the foregoing shall not limit the right of the
Corporation or any other corporation to vote any shares of the Corporation's
stock held by it in a fiduciary capacity.
SECTION 1.6: ORGANIZATION. Meetings of stockholders shall be
presided over by such person as the Board of Directors may designate, or, in
the absence of such a person, the Chairperson of the Board of Directors, or,
in the absence of such person, the President of the Corporation, or, in the
absence of such person, such person as may be chosen by the holders of a
majority of the shares entitled to vote who are present, in person or by
proxy, at the meeting. Such person shall be chairperson of the meeting and,
subject to Section 1.11 hereof, shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting
and the conduct of discussion as seems to him or her to be in order. The
Secretary of the Corporation shall act as secretary of the meeting, but in
such person's absence the chairperson of the meeting may appoint any person
to act as secretary of the meeting.
SECTION 1.7: VOTING; PROXIES. Unless otherwise provided by law or
the Certificate of Incorporation, and subject to the provisions of Section
1.8 of these Bylaws, each stockholder shall be entitled to one (1) vote for
each share of stock held by such stockholder. Each stockholder entitled to
vote at a meeting of stockholders, or to express consent or dissent to
corporate action in writing without a meeting, may authorize another person
or persons to act for such stockholder by proxy. Such a proxy may be
prepared, transmitted and delivered in any manner permitted by applicable
law. Voting at meetings of stockholders need not be by written ballot unless
such is demanded at the meeting before voting begins by a stockholder or
stockholders holding shares representing at least one percent (1%) of the
votes entitled to vote at such meeting, or by such stockholder's or
stockholders' proxy; PROVIDED, HOWEVER, that an election of directors shall
be by written ballot if demand is so made by any stockholder at the meeting
before voting begins. If a vote is to be taken by written ballot, then each
such ballot shall state the name of the stockholder or proxy voting and such
other information as the chairperson of the meeting deems appropriate.
Directors shall be elected by a plurality of the votes of the shares present
in person or represented by proxy at the meeting and entitled to vote on the
election of directors. Unless otherwise provided by applicable law, the
Certificate of Incorporation or these Bylaws, every matter other than the
election of directors shall be decided by the affirmative vote of the holders
of a majority of the shares of stock entitled to vote thereon
-2-
that are present in person or represented by proxy at the meeting and are
voted for or against the matter.
SECTION 1.8: FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
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 precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors and which shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action. If no record date is
fixed by the Board of Directors, then the record date shall be as provided by
applicable law. 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 1.9: LIST OF STOCKHOLDERS ENTITLED TO VOTE. A complete list
of stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number
of shares registered in the name of each stockholder, 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 (10) 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 at
the meeting.
SECTION 1.10: ACTION BY WRITTEN CONSENT OF STOCKHOLDERS.
(a) PROCEDURE. Unless otherwise provided by the Certificate of
Incorporation, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the 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. Written stockholder consents shall bear
the date of signature of each stockholder who signs the consent and shall be
delivered to the Corporation by delivery to its registered office in the
State of Delaware, to its principal place of business or to any officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. No written consent shall be effective to take the action
set forth therein unless, within sixty (60) days of the earliest dated
consent delivered to the Corporation in the manner provided above, written
consents signed by a sufficient number of stockholders to take the action set
forth therein are delivered to the Corporation in the manner provided above.
-3-
(b) NOTICE OF CONSENT. Prompt notice of the taking of corporate
action by stockholders without a meeting by less than unanimous written
consent of the stockholders shall be given to those stockholders who have not
consented thereto in writing and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date
for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
Corporation. In the case of a Certificate Action (as defined below), if the
Delaware General Corporation Law so requires, such notice shall be given
prior to filing of the certificate in question. If the action which is
consented to requires the filing of a certificate under the Delaware General
Corporation Law (a "CERTIFICATE ACTION"), then if the Delaware General
Corporation Law so requires, the certificate so filed shall state that
written stockholder consent has been given in accordance with Section 228 of
the Delaware General Corporation Law and that written notice of the taking of
corporate action by stockholders without a meeting as described herein has
been given as provided in such section.
SECTION 1.11: INSPECTORS OF ELECTIONS.
(a) APPLICABILITY. Unless otherwise provided in the Corporation's
Certificate of Incorporation or required by the Delaware General Corporation
Law, the following provisions of this Section 1.11 shall apply only if and
when the Corporation has a class of voting stock that is: (i) listed on a
national securities exchange; (ii) authorized for quotation on an automated
interdealer quotation system of a registered national securities association;
or (iii) held of record by more than 2,000 stockholders; in all other cases,
observance of the provisions of this Section 1.11 shall be optional, and at
the discretion of the Corporation.
(b) APPOINTMENT. The Corporation shall, in advance of any meeting
of stockholders, appoint one or more inspectors of election to act at the
meeting and make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting.
(c) INSPECTOR'S OATH. Each inspector of election, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of such inspector's ability.
(d) DUTIES OF INSPECTORS. At a meeting of stockholders, the
inspectors of election shall (i) ascertain the number of shares outstanding
and the voting power of each share, (ii) determine the shares represented at
a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period of time a record
of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
-4-
(e) OPENING AND CLOSING OF POLLS. The date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting shall be announced by the chairperson of the meeting. No
ballot, proxies or votes, nor any revocations thereof or changes thereto,
shall be accepted by the inspectors after the closing of the polls unless the
Court of Chancery upon application by a stockholder shall determine otherwise.
(f) DETERMINATIONS. In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, any information provided
in connection with proxies in accordance with Section 212(c)(2) of the
Delaware General Corporation Law, ballots and the regular books and records
of the Corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized
by the record owner to cast or more votes than the stockholder holds of
record. If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make their
certification of their determinations pursuant to this Section 1.11 shall
specify the precise information considered by them, including the person or
persons from whom they obtained the information, when the information was
obtained, the means by which the information was obtained and the basis for
the inspectors' belief that such information is accurate and reliable.
SECTION 1.12: NOTICE OF STOCKHOLDER BUSINESS; NOMINATIONS.
(a) ANNUAL MEETING OF STOCKHOLDERS.
(i) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the stockholders
shall be made at an annual meeting of stockholders (A) pursuant to the
Corporation's notice of such meeting, (B) by or at the direction of the Board
of Directors or (C) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of the notice provided for in
this Section 1.12, who is entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section 1.12.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of
subparagraph (a)(i) of this Section 1.12, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation and such
other business must otherwise be a proper matter for stockholder action. To
be timely, a stockholder's notice must be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the sixtieth (60th) day nor earlier than the close of business on
the ninetieth (90th) day prior to the first anniversary of the preceding
year's annual meeting (except in the case of the 1999 annual meeting, for
which such notice shall be timely if delivered in the same time period as if
such meeting were a special meeting governed by subparagraph (b) of this
Section 1.12); PROVIDED, HOWEVER, that in the event that the date of the
annual meeting is more than thirty (30) days before or more than sixty (60)
days after such anniversary date, notice by the stockholder to be timely must
be so delivered not earlier than the close of business on the ninetieth
(90th) day prior to such annual meeting and not later than the
-5-
close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. Such stockholder's notice shall set forth: (a) as to each
person whom the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), including
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected; (b) as to any other business
that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest
in such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (1) the name and address of such stockholder, as they appear
on the Corporation's books, and of such beneficial owner, and (2) the class
and number of shares of the Corporation that are owned beneficially and held
of record by such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
subparagraph (a)(ii) of this Section 1.12 to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased board of directors at least seventy (70) days prior to the
first anniversary of the preceding year's annual meeting (or, if the annual
meeting is held more than thirty (30) days before or sixty (60) days after
such anniversary date, at least seventy (70) days prior to such annual
meeting), a stockholder's notice required by this Section 1.12 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive office of the Corporation not later
than the close of business on the tenth (10th) day following the day on which
such public announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of such meeting.
Nominations of persons for election to the Board of Directors may be made at
a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of such meeting (i) by or at the
direction of the Board of Directors or (ii) provided that the Board of
Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time
of giving of notice of the special meeting, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 1.12. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of Directors, any such stockholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
subparagraph (a)(ii) of this Section 1.12 shall be delivered to the Secretary
of the Corporation at the principal executive offices of the Corporation
-6-
not earlier than the ninetieth (90th) day prior to such special meeting and
not later than the close of business on the later of the sixtieth (60th) day
prior to such special meeting or the tenth (10th) day following the day on
which public announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such
meeting.
(c) GENERAL.
(i) Only such persons who are nominated in accordance with
the procedures set forth in this Section 1.12 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 1.12. Except as otherwise provided
by law or these Bylaws, the chairperson of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 1.12 and, if any
proposed nomination or business is not in compliance herewith, to declare
that such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 1.12, the term "PUBLIC
ANNOUNCEMENT" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
1.12, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 1.12 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1: NUMBER; QUALIFICATIONS. The Board of Directors shall
consist of one or more members. The initial number of directors shall be
seven (7), and thereafter shall be fixed from time to time by resolution of
the Board of Directors. No decrease in the authorized number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director. Directors need not be stockholders of the Corporation.
SECTION 2.2: ELECTION; RESIGNATION; REMOVAL; VACANCIES. Subject to
the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, following the closing of
the corporation's initial public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of Common Stock to the public (the "INITIAL PUBLIC
OFFERING"), the directors shall be divided, with respect to the time for
which they severally hold office, into three classes designated as Class I,
Class II and Class III, respectively. Directors shall be assigned to each
-7-
class in accordance with a resolution or resolutions adopted by the Board of
Directors, with the number of directors in each class to be divided as
equally as possible. The term of office of the Class I directors shall
expire at the corporation's first annual meeting of stockholders following
the closing of the Initial Public Offering, the term of office of the Class
II directors shall expire at the corporation's second annual meeting of
stockholders following the closing of the Initial Public Offering, and the
term of office of the Class III directors shall expire at the corporation's
third annual meeting of stockholders following the closing of the Initial
Public Offering. At each annual meeting of stockholders commencing with the
first annual meeting of stockholders following the closing of the Initial
Public Offering, directors elected to succeed those directors of the class
whose terms then expire shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their election.
Prior to the closing of the Initial Public Offering, each director shall hold
office until the next annual meeting of stockholders and until such
director's successor is elected and qualified, or until such director's
earlier death, resignation or removal. Any director may resign at any time
upon written notice to the Corporation. Subject to the rights of the holders
of any series of Preferred Stock, any vacancy occurring in the Board of
Directors for any cause, and any newly created directorship resulting from
any increase in the authorized number of directors, shall, unless (i) the
Board of Directors determines by resolution that any such vacancies or newly
created directorships shall be filled by the stockholders, or (ii) as
otherwise provided by law, be filled only by the affirmative vote of a
majority of the directors then in office, although less than a quorum, or by
a sole remaining director, and not by the stockholders. Any director elected
in accordance with the preceding sentence shall hold office for the remainder
of the full term of the director for which the vacancy was created or
occurred. Subject to the rights of any holders of Preferred Stock, any
director or the entire Board of Directors may be removed, only with cause, by
the holders of a majority of the shares then entitled to vote at an election
of directors.
SECTION 2.3: REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such places, within or without the State of
Delaware, and at such times as the Board of Directors may from time to time
determine. Notice of regular meetings need not be given if the date, times
and places thereof are fixed by resolution of the Board of Directors.
SECTION 2.4: SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairperson of the Board of Directors, the
President or a majority of the members of the Board of Directors then in
office and may be held at any time, date or place, within or without the
State of Delaware, as the person or persons calling the meeting shall fix.
Notice of the time, date and place of such meeting shall be given, orally or
in writing, by the person or persons calling the meeting to all directors at
least four (4) days before the meeting if the notice is mailed, or at least
twenty-four (24) hours before the meeting if such notice is given by
telephone, hand delivery, telegram, telex, mailgram, facsimile or similar
communication method. Unless otherwise indicated in the notice, any and all
business may be transacted at a special meeting.
SECTION 2.5: TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors, or any committee of the Board, may participate in a meeting of the
Board or such committee by means of conference telephone or similar
communications equipment by means of which all
-8-
persons participating in the meeting can hear each other, and participation
in a meeting pursuant to conference telephone or similar communications
equipment shall constitute presence in person at such meeting.
SECTION 2.6: QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of
the Board of Directors a majority of the total number of authorized directors
shall constitute a quorum for the transaction of business. Except as
otherwise provided herein or in the Certificate of Incorporation, or required
by law, the vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
SECTION 2.7: ORGANIZATION. Meetings of the Board of Directors shall
be presided over by the Chairperson of the Board of Directors, or in such
person's absence by the President, or in such person's absence by a
chairperson chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in such person's absence the chairperson of the meeting may
appoint any person to act as secretary of the meeting.
SECTION 2.8: WRITTEN ACTION BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
or such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee, respectively.
SECTION 2.9: POWERS. The Board of Directors may, except as otherwise
required by law or the Certificate of Incorporation, exercise all such powers
and do all such acts and things as may be exercised or done by the
Corporation.
SECTION 2.10: COMPENSATION OF DIRECTORS. Directors, as such, may
receive, pursuant to a resolution of the Board of Directors, fees and other
compensation for their services as directors, including without limitation
their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 3.1: COMMITTEES. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors 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 a member of the committee, the member or members thereof
present at any meeting of such committee who are not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such
committee, to the extent provided in a resolution of the Board of Directors,
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
-9-
affixed to all papers that may require it; but no such committee shall have
the power or authority in reference to the following matters: (i) approving
or adopting, or recommending to the stockholders, any action or matter
expressly required by the Delaware General Corporation Law to be submitted to
stockholders for approval or (ii) adopting, amending or repealing any bylaw
of the Corporation.
SECTION 3.2: COMMITTEE RULES. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence
of such rules each committee shall conduct its business in the same manner as
the Board of Directors conducts its business pursuant to Article II of these
Bylaws.
ARTICLE IV
OFFICERS
SECTION 4.1: GENERALLY. The officers of the Corporation shall
consist of a Chief Executive Officer and/or a President, one or more Vice
Presidents, a Secretary, a Treasurer and such other officers, including a
Chairperson of the Board of Directors and/or Chief Financial Officer, as may
from time to time be appointed by the Board of Directors. All officers shall
be elected by the Board of Directors; PROVIDED, HOWEVER, that the Board of
Directors may empower the Chief Executive Officer of the Corporation to
appoint officers other than the Chairperson of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer or the Treasurer. Each
officer shall hold office until such person's successor is elected and
qualified or until such person's earlier resignation or removal. Any number
of offices may be held by the same person. Any officer may resign at any time
upon written notice to the Corporation. Any vacancy occurring in any office
of the Corporation by death, resignation, removal or otherwise may be filled
by the Board of Directors.
SECTION 4.2: CHIEF EXECUTIVE OFFICER. Subject to the control of the
Board of Directors and such supervisory powers, if any, as may be given by
the Board of Directors, the powers and duties of the Chief Executive Officer
of the Corporation are:
(a) To act as the general manager and, subject to the control of
the Board of Directors, to have general supervision, direction and control of
the business and affairs of the Corporation;
(b) To preside at all meetings of the stockholders;
(c) To call meetings of the stockholders to be held at such times
and, subject to the limitations prescribed by law or by these Bylaws, at such
places as he or she shall deem proper; and
(d) To affix the signature of the Corporation to all deeds,
conveyances, mortgages, guarantees, leases, obligations, bonds, certificates
and other papers and instruments in writing which have been authorized by the
Board of Directors or which, in the judgment of the Chief Executive Officer,
should be executed on behalf of the Corporation; to sign certificates for
shares
-10-
of stock of the Corporation; and, subject to the direction of the Board of
Directors, to have general charge of the property of the Corporation and to
supervise and control all officers, agents and employees of the Corporation.
The President shall be the Chief Executive Officer of the Corporation unless
the Board of Directors shall designate another officer to be the Chief
Executive Officer. If there is no President, and the Board of Directors has
not designated any other officer to be the Chief Executive Officer, then the
Chairperson of the Board of Directors shall be the Chief Executive Officer.
SECTION 4.3: CHAIRPERSON OF THE BOARD. The Chairperson of the Board
of Directors shall have the power to preside at all meetings of the Board of
Directors and shall have such other powers and duties as provided in these
Bylaws and as the Board of Directors may from time to time prescribe.
SECTION 4.4: PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation unless the Board of Directors shall have
designated another officer as the Chief Executive Officer of the Corporation.
Subject to the provisions of these Bylaws and to the direction of the Board
of Directors, and subject to the supervisory powers of the Chief Executive
Officer (if the Chief Executive Officer is an officer other than the
President), and subject to such supervisory powers and authority as may be
given by the Board of Directors to the Chairperson of the Board of Directors,
and/or to any other officer, the President shall have the responsibility for
the general management the control of the business and affairs of the
Corporation and the general supervision and direction of all of the officers,
employees and agents of the Corporation (other than the Chief Executive
Officer, if the Chief Executive Officer is an officer other than the
President) and shall perform all duties and have all powers that are commonly
incident to the office of President or that are delegated to the President by
the Board of Directors.
SECTION 4.5: VICE PRESIDENT. Each Vice President shall have all such
powers and duties as are commonly incident to the office of Vice President,
or that are delegated to him or her by the Board of Directors or the Chief
Executive Officer. A Vice President may be designated by the Board to
perform the duties and exercise the powers of the Chief Executive Officer in
the event of the Chief Executive Officer's absence or disability.
SECTION 4.6: CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall be the Treasurer of the Corporation unless the Board of Directors shall
have designated another officer as the Treasurer of the Corporation. Subject
to the direction of the Board of Directors and the Chief Executive Officer,
the Chief Financial Officer shall perform all duties and have all powers that
are commonly incident to the office of Chief Financial Officer.
SECTION 4.7: TREASURER. The Treasurer shall have custody of all
monies and securities of the Corporation. The Treasurer shall make such
disbursements of the funds of the Corporation as are authorized and shall
render from time to time an account of all such transactions. The Treasurer
shall also perform such other duties and have such other powers as are
commonly
-11-
incident to the office of Treasurer, or as the Board of Directors or the
Chief Executive Officer may from time to time prescribe.
SECTION 4.8: SECRETARY. The Secretary shall issue or cause to be
issued all authorized notices for, and shall keep, or cause to be kept,
minutes of all meetings of the stockholders and the Board of Directors. The
Secretary shall have charge of the corporate minute books and similar records
and shall perform such other duties and have such other powers as are
commonly incident to the office of Secretary, or as the Board of Directors or
the Chief Executive Officer may from time to time prescribe.
SECTION 4.9: DELEGATION OF AUTHORITY. The Board of Directors may
from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
SECTION 4.10: REMOVAL. Any officer of the Corporation shall serve at
the pleasure of the Board of Directors and may be removed at any time, with
or without cause, by the Board of Directors. Such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation.
ARTICLE V
STOCK
SECTION 5.1: CERTIFICATES. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairperson or Vice-Chairperson of the Board of Directors, or the President
or a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the Corporation, certifying the
number of shares owned by such stockholder in the Corporation. Any or all of
the signatures on the certificate may be a facsimile.
SECTION 5.2: LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE
OF NEW CERTIFICATES. The Corporation may issue a new certificate of stock in
the place of any certificate previously issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or such owner's legal representative,
to agree to indemnify the Corporation and/or to give the Corporation a bond
sufficient to indemnify it, against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate.
SECTION 5.3: OTHER REGULATIONS. The issue, transfer, conversion and
registration of stock certificates shall be governed by such other
regulations as the Board of Directors may establish.
-12-
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 INDEMNIFICATION OF OFFICERS AND DIRECTORS. Each person
who was or is made a party to, or is threatened to be made a party to, or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "PROCEEDING"), by reason of the fact that
such person (or a person of whom such person is the legal representative), is
or was a director or officer of the Corporation or a Reincorporated
Predecessor (as defined below) or is or was serving at the request of the
Corporation or a Reincorporated Predecessor (as defined below) as a director
or officer of another corporation, or of a partnership, joint venture, trust
or other enterprise, including service with respect to employee benefit
plans, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the Delaware General Corporation Law, against all
expenses, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes and penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith, provided such person acted in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the person's conduct was unlawful. Such
indemnification shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of such person's heirs, executors
and administrators. Notwithstanding the foregoing, the Corporation shall
indemnify any such person seeking indemnity in connection with a Proceeding
(or part thereof) initiated by such person only if such Proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. As
used herein, the term "REINCORPORATED PREDECESSOR" means a corporation that
is merged with and into the Corporation in a statutory merger where (a) the
Corporation is the surviving corporation of such merger; (b) the primary
purpose of such merger is to change the corporate domicile of the
Reincorporated Predecessor to Delaware.
SECTION 6.2: ADVANCE OF EXPENSES. The Corporation shall pay all
expenses (including attorneys' fees) incurred by such a director or officer
in defending any such Proceeding as they are incurred in advance of its final
disposition; PROVIDED, HOWEVER, that if the Delaware General Corporation Law
then so requires, the payment of such expenses incurred by such a director or
officer in advance of the final disposition of such Proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be
determined ultimately that such director or officer is not entitled to be
indemnified under this Article VI or otherwise; and PROVIDED, FURTHER, that
the Corporation shall not be required to advance any expenses to a person
against whom the Corporation directly brings a claim, in a Proceeding,
alleging that such person has breached such person's duty of loyalty to the
Corporation, committed an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law, or derived an improper
personal benefit from a transaction.
SECTION 6.3: NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person in this Article VI shall not be exclusive of any other right that such
person may have or hereafter
-13-
acquire under any statute, provision of the Certificate of Incorporation,
Bylaw, agreement, vote or consent of stockholders or disinterested directors,
or otherwise. Additionally, nothing in this Article VI shall limit the
ability of the Corporation, in its discretion, to indemnify or advance
expenses to persons whom the Corporation is not obligated to indemnify or
advance expenses pursuant to this Article VI.
SECTION 6.4: INDEMNIFICATION CONTRACTS. The Board of Directors is
authorized to cause the Corporation to enter into indemnification contracts
with any director, officer, employee or agent of the Corporation, or any
person serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, including employee benefit plans, providing
indemnification rights to such person. Such rights may be greater than those
provided in this Article VI.
SECTION 6.5: EFFECT OF AMENDMENT. Any amendment, repeal or
modification of any provision of this Article VI shall be prospective only,
and shall not adversely affect any right or protection conferred on a person
pursuant to this Article VI and existing at the time of such amendment,
repeal or modification.
ARTICLE VII
NOTICES
SECTION 7.1: NOTICE. Except as otherwise specifically provided
herein or required by law, all notices required to be given pursuant to these
Bylaws shall be in writing and may in every instance be effectively given by
hand delivery (including use of a delivery service), by depositing such
notice in the mail, postage prepaid, or by sending such notice by prepaid
telegram, telex, overnight express courier, mailgram or facsimile. Any such
notice shall be addressed to the person to whom notice is to be given at such
person's address as it appears on the records of the Corporation. The notice
shall be deemed given (i) in the case of hand delivery, when received by the
person to whom notice is to be given or by any person accepting such notice
on behalf of such person, (ii) in the case of delivery by mail, upon deposit
in the mail, (iii) in the case of delivery by overnight express courier, when
dispatched, and (iv) in the case of delivery via telegram, telex, mailgram or
facsimile, when dispatched.
SECTION 7.2: WAIVER OF NOTICE. Whenever notice is required to be
given under any provision of these Bylaws, a written waiver of notice, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice.
-14-
ARTICLE VIII
INTERESTED DIRECTORS
SECTION 8.1: INTERESTED DIRECTORS; QUORUM. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or committee thereof that authorizes the contract or transaction,
or solely because his, her or their votes are counted for such purpose, if:
(i) the material facts as to his, her or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; (ii) the material facts as to his, her or
their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof, or the stockholders. Interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1: FISCAL YEAR. The fiscal year of the Corporation shall
be determined by resolution of the Board of Directors.
SECTION 9.2: SEAL. The Board of Directors may provide for a
corporate seal, which shall have the name of the Corporation inscribed
thereon and shall otherwise be in such form as may be approved from time to
time by the Board of Directors.
SECTION 9.3: FORM OF RECORDS. Any records maintained by the
Corporation in the regular course of its business, including its stock
ledger, books of account and minute books, may be kept on, or be in the form
of, magnetic tape, diskettes, photographs, microphotographs or any other
information storage device, provided that the records so kept can be
converted into clearly legible form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any
person entitled to inspect the same.
SECTION 9.4: RELIANCE UPON BOOKS AND RECORDS. A member of the Board
of Directors, or a member of any committee designated by the Board of
Directors shall, in the performance of such person's duties, be fully
protected in relying in good faith upon records of the Corporation and upon
such information, opinions, reports or statements presented to the
Corporation by any
-15-
of the Corporation's officers or employees, or committees of the Board of
Directors, or by any other person as to matters the member reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
SECTION 9.5: CERTIFICATE OF INCORPORATION GOVERNS. In the event of
any conflict between the provisions of the Corporation's Certificate of
Incorporation and Bylaws, the provisions of the Certificate of Incorporation
shall govern.
SECTION 9.6: SEVERABILITY. If any provision of these Bylaws shall be
held to be invalid, illegal, unenforceable or in conflict with the provisions
of the Corporation's Certificate of Incorporation, then such provision shall
nonetheless be enforced to the maximum extent possible consistent with such
holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such
provision held to be invalid, illegal, unenforceable or in conflict with the
Certificate of Incorporation, that are not themselves invalid, illegal,
unenforceable or in conflict with the Certificate of Incorporation) shall
remain in full force and effect.
ARTICLE X
AMENDMENT
SECTION 10.1: AMENDMENTS. Stockholders of the Corporation holding a
majority of the Corporation's outstanding voting stock then entitled to vote
at an election of directors shall have the power to adopt, amend or repeal
Bylaws. To the extent provided in the Corporation's Certificate of
Incorporation, the Board of Directors of the Corporation shall also have the
power to adopt, amend or repeal Bylaws of the Corporation.
-16-
CERTIFICATION OF RESTATED BYLAWS
OF
ADFORCE, INC.
(A DELAWARE CORPORATION)
KNOW ALL BY THESE PRESENTS:
I, Rex S. Jackson, certify that I am Secretary of AdForce, Inc., a
Delaware corporation (the "COMPANY"), that I am duly authorized to make and
deliver this certification, that the attached Bylaws are a true and correct
copy of the Restated Bylaws of the Company in effect as of the date of this
certificate.
Dated: March __, 1999
______________________________
Rex S. Jackson, Secretary