<PAGE> 1
Exhibit 3.3
FORM OF SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MEDIA METRIX, INC.
(Under Sections 242 and 245 of the Delaware General
Corporation Law)
It is hereby certified that:
1. The name of the Corporation is Media Metrix,
Inc. (the "Corporation").
2. The Certificate of Incorporation of the
Corporation originally filed with the
Secretary of State of the State of Delaware
on March 26, 1997 is hereby amended and
restated in its entirety to read as follows:
FIRST: The name of the corporation is JUPITER MEDIA METRIX,
INC. (the "Corporation").
SECOND: The address of the Corporation's registered office in
the State of Delaware is United Corporate Services, Inc., 15 East North Street,
Dover, DE 19901. The name of the Corporation's registered agent at such address
is United Corporate Services.
THIRD: 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 (the "GCL").
FOURTH: Section 1. CLASSES AND NUMBER OF SHARES. The total
number of shares of all classes of stock which the Corporation has authority
to issue is 160 million (160,000,000) shares of which 150 million shares shall
be Common Stock, par value $.01 per share (the "Common Stock") and 10 million
(10,000,000) shares shall be Preferred Stock, par value $.01 per share, which
shall have such designations as may be authorized by the Board of Directors
from time to time (the "Preferred Stock").
Section 2. PREFERRED STOCK. The Board of Directors is hereby
authorized, subject to the provisions contained in this Article Fourth, to
issue the Preferred Stock from time to time in one or more series, which
Preferred Stock shall rank senior to the Common Stock as to dividends and
distribution of assets of the Corporation on dissolution, as hereinafter
provided, and shall have such distinctive designations as may be stated in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors. In such resolution or resolutions providing for the
issuance of shares of a particular series of Preferred Stock, the Board of
Directors is hereby expressly authorized and empowered to fix the number of
shares constituting such series and to fix the relative rights and preferences
of the shares of the series so established to the full extent allowable by law
except insofar as such rights and preferences are fixed herein. Such
authorization in the Board of Directors shall expressly
- 1 -
<PAGE> 2
include the authority to fix and determine the relative rights and preferences
of such shares in all respects including, without limitation, the following:
1. the rate of dividend;
2. whether shares can be redeemed or called and,
if so, the redemption or call price and terms
and conditions of redemption or call;
3. the amount payable upon shares in the event
of dissolution, voluntary and involuntary
liquidation or winding up of the affairs of
the Corporation;
4. purchase, retirement or sinking fund
provisions, if any, for the call, redemption
or purchase of shares;
5. the terms and conditions, if any, on which
shares may be converted into Common Stock or
any other securities;
6. whether or not shares have voting rights, and
the extent of such voting rights, if any; and
7. whether shares shall be cumulative,
noncumulative, or partially cumulative as to
dividends and the date from which any
cumulative dividends are to accumulate.
FIFTH: Meetings of the stockholders of the Corporation may be
held within or without the State of Delaware, as the Bylaws may provide. The
books of the Corporation may be kept (subject to any provisions contained in
the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws of the
Corporation. Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
SIXTH: In the furtherance and not in limitation of objects,
purposes and powers conferred by statute, the Board of Directors is expressly
authorized to make, alter or repeal the Bylaws of the Corporation.
Notwithstanding anything in this Amended and Restated Certificate of
Incorporation to the contrary, Bylaw Sections 2.04, 3.02, 3.03, and Article XII
may not be repealed or amended in any respect, and no provision inconsistent
therewith may be adopted by the stockholders unless such action is approved by
either (a) a majority of the Continuing Directors or (b) the affirmative vote
of the holders of (i) eighty percent (80%) of the outstanding shares of capital
stock of the Corporation entitled to vote generally, and (ii) if an Interested
Stockholder is proposing such amendment, sixty-six and two-thirds percent (66
2/3%) of the outstanding shares of the capital stock of the Corporation
entitled to vote generally which are not beneficially owned, directly or
indirectly, by such Interested Stockholder.
SEVENTH: Subject to the rights of the holders of any series of
Preferred Stock:
(a) any action required or permitted to be taken by the
stockholders of the Corporation must be effected at
a duly called annual or special meeting of
stockholders of the Corporation and may not be
effected by any consent in writing of such
stockholders and
(b) special meetings of stockholders of the Company may
be called only by (i) the Chairman of the Board or
(ii) the Secretary of the Corporation within 10
calendar days after receipt of the written request of
a majority of the total
- 2 -
<PAGE> 3
number of Directors which the Corporation would have
if there were no vacancies.
At any annual or special meeting of stockholders of the Corporation,
only such business will be conducted or considered as has been brought before
such meeting in the manner provided in the ByLaws or the Corporation.
Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of at least
80% of the Voting Stock, voting together as a single class, will be required to
amend or repeal, or adopt any provision inconsistent with, this Article
Seventh.
EIGHTH: (a) CLASSIFICATION OF BOARD OF DIRECTORS. The Board of
Directors shall consist of nine (9) directors; provided that the number of
directors may be increased from time to time by resolution adopted by the
affirmative vote of a majority of the Continuing Directors. Upon the
consummation of the Corporation's initial public offering of its Common Stock,
directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of Directors.
Class I directors shall serve until the 2000 Annual Meeting of Stockholders,
Class II directors shall serve until the 2001 Annual Meeting of Stockholders
and Class III directors shall serve until the 2002 Annual Meeting of
Stockholders.
At each annual meeting of stockholders beginning in 2000, successors
to the class of directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with
the remaining term of the class, but in no case will a decrease in the number
of directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his or her term expires
and until his or her successor shall be elected and qualified. Any vacancy on
the Board of Directors for any reason, and any directorships resulting from any
increase in the number of directors of the Board of Directors, may be filled by
a majority of the Board of Directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the next election
of the class for which such directors shall have been chosen and until their
successors shall be elected and qualified. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of stock issued by
the Corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Certificate of Incorporation applicable
thereto, such directors so elected shall not be divided into classes pursuant
to this Article Eighth, Section(a), and the number of such directors shall not
be counted in determining the maximum number of directors permitted under the
foregoing provision of this Article Eighth, Section (a), in each case unless
expressly provided by such terms.
(b) AMENDMENT OR REPEAL. Notwithstanding anything in this Amended
and Restated Certificate of Incorporation to the contrary, the provisions set
forth in this Article Eighth may not be repealed or amended in any respect,
unless such action is approved by either (a) a majority of the Continuing
Directors (in addition to the vote otherwise required by the GCL) or (b) the
affirmative vote of the holders of (i) eighty percent (80%) of the Voting
Shares voting as a single class, and (ii) if an Interested Stockholder is
proposing such amendment, sixty-six and two-thirds percent (66 2/3%) of the
Voting Shares which are not beneficially owned, directly or indirectly, by such
Interested Stockholder, voting as a single class.
- 3 -
<PAGE> 4
(c) REMOVAL OF DIRECTORS. Notwithstanding anything in this
Amended and Restated Certificate of Incorporation to the contrary, the
Corporation's Certificate of Incorporation may not be amended to provide for
removal of directors without cause as permitted by the GCL, unless such action
is approved by either (a) a majority of the Continuing Directors (in addition
to the vote otherwise required by the GCL) or (b) the affirmative vote of the
holders of (i) eighty percent (80%) of the Voting Shares voting as a single
class, and (ii) if an Interested Stockholder is proposing such amendment,
sixty-six and two-thirds percent (66 2/3%) of the Voting Shares which are not
beneficially owned, directly or indirectly, by such Interested Stockholder,
voting as a single class; PROVIDED, HOWEVER, whenever the holders of any class
or series of the Corporation's outstanding securities are entitled to elect one
or more directors by this Amended and Restated Certificate of Incorporation,
this subsection shall apply, in respect to the removal without cause of a
director or directors so elected, to the vote of the holders of the outstanding
shares of that class or series and not to the vote of the outstanding shares as
a whole.
(d) DEFINITIONS. A majority of the Continuing Directors shall
have the power and duty to determine for purposes of Article Sixth and Article
Eighth, on the basis of information known to them, the applicability of certain
defined terms used in Article Sixth and Article Eighth, in addition to such
other matters with respect to which a determination is required under Article
Sixth and Article Eighth. Any such determination shall be conclusive and
binding for all purposes of Article Sixth and Article Eighth.
For purposes of Article Sixth and Article Eighth, the following
definitions shall apply:
"Affiliate" and "Associate" shall have the respective meanings
ascribed to them in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
A person shall be a "beneficial owner" of any Voting Shares:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (1) the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise or (2) the right to vote or
to direct the voting thereof pursuant to any agreement,
arrangement or understanding; or
(iii) which is beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any Voting Shares.
A "Continuing Director" is any member of the Corporation's
Board of Directors who is unaffiliated with, and not a nominee of, an
Interested Stockholder, and any successor of a Continuing Director who
is unaffiliated with, and not a nominee of, an Interested Stockholder
and is approved to succeed a Continuing Director by a majority of
Continuing Directors then on the Board of Directors.
- 4 -
<PAGE> 5
"Interested Stockholder" shall mean any Person (other than the
Corporation, any Parent or Subsidiary of the Corporation, the 1995
Scott Johnson Trust, the 1995 Stacey Johnson Trust, or any successor
in interest to any Parent, Subsidiary or the aforementioned trusts,
any employee benefit plan of the Corporation or any Subsidiary of the
Corporation or any entity holding shares of Common Stock for or
pursuant to the terms of any such plan or any person who acquires more
than 10% of the outstanding Voting Shares with the prior approval of a
majority of the Continuing Directors), who or which:
(i) is the beneficial owner, directly or
indirectly, of more than 10% of the combined voting power of
the then outstanding Voting Shares; or
(ii) is an assignee of or has otherwise succeeded
to the beneficial ownership of any Voting Shares which were at
any time within the three-year period immediately prior to the
date in question beneficially owned by an Interested
Stockholder.
For the purposes of determining whether a person is an Interested
Stockholder, the number of Voting Shares deemed to be outstanding
shall include shares deemed owned through application of the
definition of the definition of beneficial ownership provided above
but shall not include any Voting Shares beneficially owned by any
person other than the Interested Stockholder which may be issuable
pursuant to any agreement, arrangement or understanding or upon
exercise of conversion rights, warrants or options, or otherwise.
"Person" shall mean any individual, firm, trust, partnership,
association, corporation, unincorporated organization or other entity
(other than the Corporation, any Subsidiary of the Corporation for
itself or a trustee holding stock for the benefit of the employees of
the Corporation or its Subsidiaries, or any one of them, pursuant to
one or more employee benefit plans or arrangements), as well as two or
more persons acting as a partnership, limited partnership, syndicate,
association or other group for the purpose of acquiring, holding or
disposing of shares of stock.
"Subsidiary" shall mean any corporation, partnership or other
entity of which a majority of any class of equity security (as defined
in Rule 3a(11)-1 of the General Rules and Regulations under the
Exchange Act), is owned, directly or indirectly, by the Corporation;
provided, however, that for purposes of the definition of Interested
Stockholder set forth above, the term "Subsidiary" shall mean only a
corporation, partnership or other entity of which a majority of each
class of equity security is beneficially owned, directly or
indirectly, by the Corporation.
"Voting Shares" shall mean shares of all classes and series of
the Corporation entitled to vote generally in the election of the
Corporation's directors.
NINTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under
the provisions of Section 291 the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as
- 5 -
<PAGE> 6
the case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
TENTH: A director of the Corporation shall have no personal liability
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, this Article shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the GCL is hereafter amended to authorize the further elimination or limitation
of the liability of directors, then the liability of a director of the
Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended GCL.
Any repeal or modification of this Article by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
ELEVENTH: The Corporation shall have the power to provide
indemnification to the fullest extent permitted by Section 145 of the GCL.
TWELFTH: The Corporation reserves the right to amend, alter, change
or repeal any provisions contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Sections 242 and 245 of the GCL by
written consent of a majority of the stockholders outstanding and entitled to
vote thereon in accordance with Section 228 of the GCL.
- 6 -
<PAGE> 7
IN WITNESS WHEREOF, said Media Metrix, Inc. has caused this
certificate to be signed by Tod Johnson, its Chief Executive Officer, this ___
day of September, 2000.
MEDIA METRIX, INC.
By:
-------------------------------
Tod Johnson
Chief Executive Officer
- 7 -
