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
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Section 2.4: Special Meetings . . . . . . . . . . . . . . . . . . . 8
Section 2.5: Telephonic Meetings Permitted. . . . . . . . . . . . . 9
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. . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.8: Secretary. . . . . . . . . . . . . . . . . . . . . . . 12
ii
RESTATED BYLAWS
OF
ADFORCE, INC.
a Delaware corporation
TABLE OF CONTENTS (CONT'D)
PAGE
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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. . . . . . . . . . . . . . . . . . . 13
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. . . . . . . . . . . . . . . 14
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
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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. . . . . . . . . . . . 16
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, the holders of shares of the
Corporation that are entitled to cast not less a majority of the total number of
votes entitled to be cast by all stockholders at such meeting, 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
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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.
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(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.
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(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
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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
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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 reasonably 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, with or without
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 cause if the votes cast against removal of the director, or not
consenting in writing to the removal, would be sufficient to elect the
director if voted cumulatively (without regard to whether shares may
otherwise be voted cumulatively) at an election at which the same total
number of votes were cast (or, if the action is taken by written consent, all
shares entitled to vote were voted) 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.
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
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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 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
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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 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;
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(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 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
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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 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.
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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.
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
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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 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
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stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice.
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.
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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 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.
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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