Linkshare Corp. - By-Laws
BY-LAWS
OF
LINKSHARE CORPORATION
ARTICLE I
Offices
Section 1.01 Principal Office. The principal office of LinkShare
Corporation (the "Corporation") shall be where the Board of Directors of the
Corporation (the "Board") determines from time to time or the business of the
Corporation requires.
Section 1.02 Other Offices. The Corporation also may have offices at such
other places as the Board determines from time to time or the business of the
Corporation requires.
ARTICLE II
Meetings of Stockholders
Section 2.01 Place of Meetings, etc. Except as otherwise provided in these
By-Laws, all meetings of the stockholders shall be held at such dates, times and
places as shall be determined by the Board and as shall be stated in the notices
of the meeting or in waivers of notice thereof.
Section 2.02 Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of such other business as properly may
be brought before the meeting shall be held on such date and at such time as
shall be set by the Board.
Section 2.03 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Chairman, the Chief Executive
Officer or the President and shall be called by the President or the Secretary
upon the written request of a majority of the Board. The request shall state the
date, time, place and purpose of the proposed meeting.
Section 2.04 Notice of Meetings. Except as otherwise required or permitted
by law, whenever the stockholders are required or permitted to take any action
at a meeting, written notice thereof 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. A copy of the notice of any meeting
shall be delivered personally or shall be mailed, 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 the meeting. If mailed, the notice shall be given
when deposited in the United States mail, postage prepaid, and shall be directed
to each stockholder at his or her address as it appears on the record of
stockholders, or to such other address which such stockholder may have furnished
by written
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request to the Secretary of the Corporation. Notice of any meeting of
stockholders shall be deemed waived by any stockholder who attends the meeting,
except when the stockholder attends the meeting for the express purpose of
objecting at the beginning thereof to the transaction of any business because
the meeting is not lawfully called or convened. Notice need not be given to any
stockholder who submits, either before or after the meeting, a signed waiver of
notice. Unless the Board, after the adjournment of a meeting, shall fix a new
record date for the adjourned meeting, or unless the adjournment is for more
than thirty (30) days, notice of an adjourned meeting need not be given if the
place, date and time to which the meeting shall be adjourned is announced at the
meeting at which the adjournment is taken.
Section 2.05 Quorum. Except as otherwise provided by statute or by the
Certificate of Incorporation of the Corporation, at any meeting of stockholders,
the presence, in person or by proxy, of the holders of a majority of the
outstanding shares of the Corporation entitled to vote at such meeting shall be
necessary and sufficient to constitute a quorum for the transaction of business.
Whether or not a quorum shall be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or by
proxy, shall have the power to adjourn the meeting.
Section 2.06 Voting. At all meetings of the stockholders, every stockholder
having the right to vote thereat shall be entitled to one vote for every share
of stock registered in his or her name as of the record date and entitling him
or her to so vote. A stockholder may vote in person or by proxy. Except as
otherwise provided by statute or by the Certificate of Incorporation of the
Corporation, any corporate action, other than the election of directors, which
is to be taken by a vote of the stockholders at a meeting shall be authorized by
not less than a majority of the votes cast in person or by proxy by stockholders
entitled to vote thereon. Directors shall be elected as provided in Section 3.03
of Article III of these By-Laws. Written ballots shall not be required for
voting on any matter unless ordered by the Chairman of the meeting.
Section 2.07 Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after 11 months from its date,
unless the proxy provides for a longer period.
Section 2.08 Conduct of Meetings. At each meeting of the stockholders the
Chief Executive Officer shall act as chairman of the meeting. The President, or
such other person as is appointed by the chairman of the meeting, shall act as
Secretary of the meeting and shall keep the minutes thereof. The order of
business at all meetings of the stockholders shall be as determined by the
chairman of the meeting.
Section 2.09 Consent of Stockholders in Lieu of Meeting. Any action which
may be taken at any annual or special meeting of 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 all of the outstanding shares entitled to vote thereon.
Section 2.10 Fixing of Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment
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thereof, the Board shall fix a record date which shall not precede the date upon
which the resolution fixing the record date is adopted by the Board and shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting. If the Board does not fix a record date for such purpose, the
record date for such purpose shall be at the close of business on the day next
preceding the day on which notice is given, or, if no notice is given, the day
on which the meeting is held.
ARTICLE III
Board of Directors
Section 3.01 Powers. The property, business and affairs of the Corporation
shall be managed by the Board which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation of the Corporation or by these By-Laws directed
or required to be exercised or done by the stockholders.
Section 3.02 Number of Board Members. The number of directors which shall
constitute the entire Board shall initially be three. The number of directors
may be increased or decreased from time to time by the Board by resolution
adopted by vote of a majority of the then authorized number of directors, except
that the number of directors may not be decreased to less than two unless all
the shares of the Corporation are owned beneficially and of record by less than
two stockholders. When used in these By-Laws, the phrase "entire Board" means
the total number of directors which the Corporation would have if there were no
vacancies.
Section 3.03 Election and Term. Except as otherwise provided by law or by
these By-Laws, the Board shall be elected annually at the annual meeting of the
stockholders and the persons receiving a plurality of the votes cast shall be so
elected. Subject to his or her earlier death, resignation or removal as provided
in Section 3.04 of this Article III, each director shall hold office until his
or her successor shall have been duly elected and shall have qualified.
Section 3.04 Removal. A director may be removed at any time, with or
without cause, by the affirmative vote of the holders of a majority of the
shares then entitled to vote at an election of directors.
Section 3.05 Resignations. Any director may resign at any time by giving
written notice of his or her resignation to the Corporation. A resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not be
necessarv to make it effective.
Section 3.06 Vacancies. Any vacancy in the Board arising from an increase
in the number of directors or otherwise may be filled by the vote of a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director. Subject to his or her earlier death, resignation or removal
as provided in Section 3.04 of this Article III, each director so
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elected shall hold office until the next annual meeting of stockholders and
until his or her successor shall have been duly elected and shall have
qualified.
Section 3.07 Chairman of the Board. The directors shall elect one of their
members to be Chairman of the Board. The Chairman shall be subject to the
control of and may be removed by the Board. The Chairman shall perform such
duties as may from time to time be assigned by the Board.
Section 3.08 Place of Meetings. Except as otherwise provided in these
By-Laws, all meetings of the Board shall be held at such places as the Board
determines from time to time.
Section 3.09 Annual Meeting. The annual meeting of the Board shall be held
either (a) without notice immediately after the annual meeting of stockholders
and in the same place, or (b) as soon as practicable after the annual meeting of
stockholders on such date and at such time and place as the Board determines.
Section 3.10 Regular Meetings. Regular meetings of the Board shall be held
on such dates and at such places and times as the Board determines. Notice of
regular meetings need not be given, except as otherwise required by law.
Section 3.11 Special Meetings. Special meetings of the Board may be called
by or at the direction of the Chairman, the Chief Executive Officer or the
President. The request shall state the date, time, place and purpose of the
proposed meeting.
Section 3.12 Notice of Meetings. Notices of special meetings of the Board
(and of each annual meeting held pursuant to subdivision (b) of Section 3.08 of
this Article III) if mailed, shall be mailed to each director addressed to him
or her at his or her residence or usual place of business, not later than three
(3) days before the meeting is scheduled to commence, or shall be sent to him or
her at such place by telegraph, cable, facsimile, telex or any other form of
recorded communication, or be delivered personally or by telephone, not later
than the day before such day of the meeting. The notice may be given by the
Chairman, the Chief Executive Officer, the President or the Secretary of the
Corporation.
Section 3.13 Quorum and Voting. At all meetings of the Board, the presence
of a majority of the entire Board shall be necessary and sufficient to
constitute a quorum for the transaction of business, and 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. A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting to another place, date and time.
Section 3.14 Conduct of Meetings. At each meeting of the Board, the
Chairman or, in his or her absence, a director chosen by a majority of the
directors present, shall act as chairman of the meeting. The President or, in
his or her absence, any person appointed by the chairman of the meeting, shall
act as Secretary of the meeting and keep the minutes thereof. The order of
business at all meetings of the Board shall be as determined by the chairman of
the meeting.
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Section 3.15 Written Consent to Action in Lieu of a Meeting. Any action
required or permitted to be taken at any meeting of the Board or of any
committee may be taken without a meeting if all members of the Board or
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.
Section 3.16 Meetings Held Other Than in Person. Members of the Board or
any committee may participate in a meeting of the Board or committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at the
meeting.
ARTICLE IV
Officers
Section 4.01 Executive Officers, etc. The Board shall elect as executive
officers of the Corporation a Chief Executive Officer, a President and a
Secretary. The Board also may elect one or more Vice Presidents (any of whom may
be designated as Executive Vice Presidents or otherwise), a Treasurer and any
other officers it deems necessary or desirable for the conduct of the business
of the Corporation, each of whom shall have such powers and duties as the Board
determines.
Section 4.02 Duties.
(a) The Chief Executive Officer. The Chief Executive Officer shall
have overall responsibility for the management and direction of the
business and affairs of the Corporation and shall exercise such duties as
customarily pertain to the office of Chief Executive Officer and such other
duties as may be prescribed from time to time by the Board of Directors. He
shall be the senior officer of the Corporation and in case of the inability
or failure of the President to perform his duties, he shall perform the
duties of the President. He may appoint and terminate the appointment or
election of officers, agents, or employees other than those appointed or
elected by the Board. He may sign, execute and deliver, in the name of the
Corporation, powers of attorney, contracts, bonds and other obligations
which implement policies established by the Board. The Chief Executive
Officer shall perform such other duties as may be prescribed from time to
time by the Board or these Bylaws.
(b) The President. The President of the Corporation shall be
responsible for the active direction of the daily business of the
Corporation and shall exercise such duties as customarily pertain to the
office of President and such other duties as may be prescribed from time to
time by the Board. The President may sign, execute and deliver, in the name
of the Corporation, powers of attorney, contracts, bonds and other
obligations which implement policies established by the Board. In the
absence or disability of the Chief Executive Officer, the President shall
perform the duties and exercise the powers of the Chief Executive Officer.
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(c) Vice Presidents. Vice Presidents shall have such powers and
perform such duties as may be assigned to them by the Chief Executive
Officer, the President, the executive committee, if any, or the Board. A
Vice President may sign and execute contracts and other obligations
pertaining to the regular course of his duties which implement policies
established by the Board.
(d) The Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board. The Secretary shall cause
notice to be given of meetings of stockholders, of the Board, and of any
committee appointed by the Board. He shall have custody of the corporate
seal, minutes and records relating to the conduct and acts of the
stockholders and Board, which shall, at all reasonable times, be open to
the examination of any director. The Secretary or any Assistant Secretary
may certify the record of proceedings of the meetings of the stockholders
or of the Board or resolutions adopted at such meetings; may sign or attest
certificates, statements or reports required to be filed with governmental
bodies or officials; may sign acknowledgments of instruments; may give
notices of meetings; and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
(e) The Treasurer. Subject to the control of the Board, the Treasurer
shall have the care and custody of corporate funds and the books relating
thereto; shall perform all other duties incident to the office of
Treasurer; and shall have such other powers and duties as the Board, the
Chief Executive Officer or the President assigns to him or her. In the
absence or disability of the Treasurer or in the event there is no
Treasurer, the Chief Executive Officer or the President, or such other
person as is appointed by the Chief Executive Officer or President, shall
perform the duties and exercise the powers of the Treasurer.
Section 4.03 Election; Removal. Subject to his or her earlier death,
resignation or removal as hereinafter provided, each officer shall hold his or
her office until his or her successor shall have been duly elected and shall
have qualified. Any officer may be removed at any time, with or without cause,
by the Board.
Section 4.04 Resignations. Any officer may resign at any time by giving
written notice of his or her resignation to the Corporation. A resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not be
necessary to make it effective.
Section 4.05 Vacancies. If an office becomes vacant for any reason, the
Board shall fill the vacancy, and each officer so elected shall serve for the
remainder of his or her predecessor's term.
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ARTICLE V
Provisions Relating to Stock Certificates and Stockholders
Section 5.01 Certificates. Certificates for the Corporation's capital stock
shall be in such form as required by law and as approved by the Board. Each
certificate shall be signed in the name of the Corporation by (i) the Chief
Executive Officer, the President or any Vice President and (ii) the Secretary,
the Treasurer or any Assistant Secretary or any Assistant Treasurer and shall
bear the seal of the Corporation or a facsimile thereof. If any certificate is
countersigned by a transfer agent or registered by a registrar, other than the
Corporation or its employees, the signature of any officer of the Corporation
may be a facsimile signature. In case any officer, transfer agent or registrar
who shall have signed or whose facsimile signature was placed on any certificate
shall have ceased to be such officer, transfer agent or registrar before the
certificate shall be issued, it may nevertheless be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Section 5.02 Lost Certificates, etc. The Board or any transfer agent of the
Corporation may issue a new certificate for shares in place of any certificate
theretofore issued by it, alleged to have been lost, mutilated, stolen or
destroyed, and the Board (or any transfer agent of the Corporation authorized to
do so by a resolution of the Board) may require the owner of the lost,
mutilated, stolen or destroyed certificate, or his or her legal representatives,
to make an affidavit of that fact and to give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
Corporation on account of the alleged loss, mutilation, theft or destruction of
the certificate or the issuance of a new certificate.
Section 5.03 Transfers of Shares. Transfers of shares shall be registered
on the books of the Corporation maintained for that purpose after due
presentation of the stock certificates therefor appropriately endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer.
ARTICLE VI
General Provisions
Section 6.01 Dividends, etc. To the extent permitted by law, the Board
shall have full power and discretion, subject to the provisions of the
Certificate of Incorporation of the Corporation and the terms of any other
corporate document or instrument binding upon the Corporation, to determine
what, if any, dividends or distributions shall be declared and paid or made.
Section 6.02 Fixing of Record Date for Dividends and Other Action. The
Board shall fix a record date for the purpose of determining the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or for the purpose of any other action. The record date fixed for
such purpose shall not precede the date upon which the resolution fixing the
record date is adopted and shall be no more than sixty (60) days prior to
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such action. If the Board does not fix a record date, the record date for
determining the stockholders for any such purpose shall be at the close of
business on the date on which the Board adopts the resolution relating thereto.
Section 6.03 Seal. The Corporation's seal shall be in such form as is
required by law and as shall be approved by the Board.
Section 6.04 Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board.
ARTICLE VII
Indemnification
Section 7.01 Indemnification.
(a) The Corporation shall indemnify to the fullest extent now or
hereafter provided for or permitted by law each person involved in, or made
or threatened to be made a party to, any action, suit, claim or proceeding,
arbitration, alternative dispute resolution mechanism, investigation,
administrative or legislative hearing or any other actual, threatened,
pending or completed proceeding, whether civil or criminal, or whether
formal or informal, and including an action by or in the right of the
Corporation or any other corporation, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, whether profit or
non-profit (any such entity, other than the Corporation, being hereinafter
referred to as an "Enterprise"), and including appeals therein (any such
process being hereinafter referred to as a "Proceeding"), by reason of the
fact that such person, such person's testator or intestate (i) is or was a
director or officer of the Corporation, or (ii) while serving as a director
or officer of the Corporation, is or was serving, at the request of the
Corporation, as a director, officer, or in any other capacity, any other
Enterprise, against any and all judgments, fines, penalties, amounts paid
in settlement, and expenses, including attorneys' fees, actually and
reasonably incurred as a result of or in connection with any Proceeding, or
any appeal therein, except as provided in Section 7.01 (b) of this Article
VII.
(b) No indemnification shall be made to or on behalf of any such
person if a judgment or other final adjudication adverse to such person
establishes that such person's acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause
of action so adjudicated, or that such person personally gained in fact a
financial profit or other advantage to which such person was not legally
entitled. In addition, no indemnification shall be made with respect to any
Proceeding initiated by any such person against the Corporation, or a
director or officer of the Corporation, other than to enforce the terms of
this Article VII, unless such Proceeding was authorized by the Board.
Further, no indemnification shall be made with respect to any settlement or
compromise of any Proceeding unless and until the Corporation has consented
to such settlement or compromise.
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Section 7.02 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation Law of the
State of Delaware.
ARTICLE VIII
Amendments
(a) The holders of shares entitled at the time to vote for the election of
directors shall have power to adopt, amend, or repeal these By-Laws by vote of
not less than a majority of such shares, and the Board of Directors by vote of
not less than a majority of the entire Board shall have power equal in all
respects to that of the stockholders to adopt, amend, or repeal these By-Laws.
However, any By-Law adopted by the Board may be amended or repealed by vote of
the holders of a majority of the shares entitled at the time to vote for the
election of directors.
(b) If any By-Law or By-laws regulating an impending election of directors
is adopted, amended, or repealed by the Board, there shall be set forth in the
notice of the next meeting of stockholders for the election of directors the
By-Law or By-Laws so adopted, amended, or repealed, together with a concise
statement of the changes made.
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