SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADFORCE, INC.
AdForce, Inc., a Delaware corporation, hereby certifies that the Second
Amended and Restated Certificate of Incorporation of the corporation attached
hereto as EXHIBIT "A", which is incorporated herein by this reference, has been
duly adopted by the corporation's Board of Directors and stockholders in
accordance with Sections 242 and 245 of the Delaware General Corporation Law,
with the approval of the corporation's stockholders having been given by written
consent without a meeting in accordance with Section 228 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, said corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed by its by duly authorized
officer.
Dated: __________, 1999
ADFORCE, INC.
--------------------------------
Charles W. Berger, Chairman
EXHIBIT "A"
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADFORCE, INC.
ARTICLE I
The name of the corporation is AdForce, Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of
its registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
has authority to issue is Forty-Five Million (45,000,000) shares, consisting of
two classes: Forty Million (40,000,000) shares of Common Stock, $0.001 par value
per share, and Five Million (5,000,000) shares of Preferred Stock, $0.001 par
value per share.
The Board of Directors is authorized, subject to any limitations prescribed
by the law of the State of Delaware, to provide for the issuance of the shares
of Preferred Stock in one or more series, and, by filing a Certificate of
Designation pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, to fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions thereof,
and to increase or decrease the number of shares of any such series (but not
below the number of shares of such series then outstanding). The number of
authorized shares of Preferred Stock may also be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the stock of the corporation entitled to vote,
unless a vote of any other holders is required pursuant to a Certificate or
Certificates establishing a series of Preferred Stock.
Except as otherwise expressly provided in any Certificate of Designation
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Article IV, any new series
of Preferred Stock may be designated, fixed and determined as provided herein
by the Board of Directors without approval of the holders of Common Stock or
the holders of Preferred Stock, or any series thereof, and any such new
series may have powers, preferences and rights, including, without
limitation, voting rights, dividend rights, liquidation rights, redemption
rights and conversion rights, senior to, junior to or pari passu with the
rights of the Common Stock, the Preferred Stock, or any future class or
series of Preferred Stock or Common Stock.
ARTICLE V
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal the Bylaws of the corporation.
ARTICLE VI
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
(A) The conduct of the affairs of the corporation shall be managed under
the direction of its Board of Directors. The number of directors shall be fixed
from time to time exclusively by resolution of the Board of Directors.
(B) Notwithstanding the foregoing provision of this Article VI, each
director shall hold office until such director's successor is elected and
qualified, or until such director's earlier death, resignation or removal. No
decrease in the authorized number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(C) 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.
(D) Subject to the rights of the holders of any series 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; PROVIDED HOWEVER, that a director may not be removed without
casuse if the votes cast against removal of the director would be sufficient
to elect the director if voted cumulative (without regard to whether shares
may otherwise be voted cumulatively) at an election at which the same total
number of votes
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were cast and either the number of directors elected at the most recent
annual meeting of stockholders, or if greater, the number of directors for
whom removal is being sought, were then being elected.
(E) 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 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.
(F) Election of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
(G) Following the closing of the Initial Public Offering, no action shall
be taken by the stockholders of the corporation except at an annual or special
meeting of stockholders called in accordance with the Bylaws of the corporation,
and no action shall be taken by the stockholders by written consent.
(H) Advance notice of stockholder nominations for the election of
directors of the corporation and of business to be brought by stockholders
before any meeting of stockholders of the corporation shall be given in the
manner provided in the Bylaws of the corporation. Business transacted at
special meetings of stockholders shall be confined to the purpose or purposes
stated in the notice of meeting.
ARTICLE VII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
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Neither any amendment nor repeal of this Article VII, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article VII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
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