|
|
|
|
|
|
|
|
|
|
|
|
|
|
Previous: SUNGARD DATA SYSTEMS INC, 10-Q, 2000-11-14 |
Next: SUNGARD DATA SYSTEMS INC, 10-Q, EX-27, 2000-11-14 |
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
SUNGARD DATA SYSTEMS INC.
(a Delaware Corporation)
ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware shall be located in the City of Wilmington, County of New Castle. The Corporation may establish or discontinue, from time to time, such other offices, within or without the State of Delaware, as the Board of Directors may designate.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of the Meetings. All meetings of stockholders shall be held at such place or places, within or without the State of Delaware, as may from time to time be fixed by the Board of Directors, or as shall be specified in the respective notices, or waivers of notice, thereof.
Section 2. Annual Meeting. The annual meeting of Stockholders for the election of Directors and the transaction of other business shall be held on such date and at such place as may be designated by the Board of Directors. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and may transact such other proper business as may come before the meeting, irrespective of whether the notice of said meeting contains any reference thereto, except as otherwise provided by applicable law.
Section 3. Special Meetings. A special meeting of the stockholders, or of any class thereof entitled to vote, for any other purpose or purposes, may be called at any time by the Board of Directors, the Chairman of the Board or the President and shall be called by the Chairman of the Board, the President or the Secretary upon the written request of stockholders holding of record at least 50% of the outstanding shares of stock of the Corporation entitled to vote at such meeting. Such written request shall state the purpose or purposes for which such meeting is to be called.
Section 4. Notice of Meetings. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, stating the place, date and hour of the meeting, and in the case of a special meeting, stating the purpose or purposes for which the meeting is called, shall be given not less than ten days nor more than sixty days before the date on which the meeting is to be held to each stockholder of record entitled to vote thereat by delivering a notice thereof to him personally or by mailing such notice in a postage prepaid envelope directed to him at his address as it appears on the records of the Corporation, unless he shall have filed with the Secretary of the Corporation a written request that notices intended for him be directed to another address, in which case such notice shall be directed to him at the address designated in such request. Notice shall not be required to be given to any stockholder who shall waive such notice in writing, whether prior to or after such meeting, or who shall attend such meeting in person or by proxy unless such attendance is for the express purpose of objecting, at the beginning of such meeting, to the transaction of any business because the meeting is not lawfully called or convened. Every notice of a special meeting of the stockholders shall state, in addition to the place, date and hour of the meeting, the purpose or purposes thereof.
Section 5. List of Stockholders. It shall be the duty of the Secretary or other officer of the Corporation who shall have charge of the stock ledger to prepare and make, at least ten days before every meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in his name. Such list 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 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 be kept and produced at the time and place of the meeting during the whole time thereof and subject to inspection of any stockholder who may be present. The original or duplicate ledger shall be the only evidence as to who are the stockholders entitled to examine such list or books of the Corporation or to vote in person or by proxy at such meeting.
Section 6. Quorum. At each meeting of the stockholders, the holders of record of a majority of the issued and outstanding stock of the Corporation entitled to vote at such meeting, present in person or by proxy, shall constitute a quorum for the transaction of business, except where otherwise provided by law, the Certificate of Incorporation or these By-laws. In the absence of a quorum, any officer entitled to preside at, or act as secretary of, such meeting shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be constituted, and thereupon, any business may be transacted at the adjourned meeting that might have been transacted at the meeting as originally called.
Section 7. Conduct of the Meetings. The Chairman of the Board shall preside at all meetings. In the absence of the Chairman of the Board, the President shall preside or, in his absence, any officer designated by the Board of Directors. The officer presiding over the meeting of stockholders may establish such rules and regulations for the conduct of the meeting as he may deem to be reasonably necessary or desirable for the orderly and expeditious conduct of the meeting.
Section 8. Voting. Every stockholder of record who is entitled to vote shall at every meeting of the stockholders be entitled to one vote for each share of stock held by him on the record date; except, however, that shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of the directors of such other corporation is held by the Corporation, shall neither be entitled to vote nor counted for the quorum purposes. Nothing in this Section shall be construed as limiting the right of the Corporation to vote its own stock held by it in a fiduciary capacity. At all meetings of the stockholders at which a quorum is present, all matters shall be decided by majority vote of the shares of the stock present in person or by proxy and entitled to vote thereon, except as otherwise required by law or the Certificate of Incorporation. The vote on all elections of Directors shall be by written ballot, and upon demand of any stockholder, the vote on any other question before the meeting shall be by ballot or otherwise as determined by the chairman of the meeting. On a vote by written ballot, each ballot shall be signed by the stockholder voting, or in his name by his proxy, if there be such proxy, and shall state the number of shares voted by him and the number of votes to which each share is entitled.
Section 9. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting shall have the right to do so either in person or by an agent or agents authorized by a proxy granted in accordance with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be valid after the expiration of three years from the date thereof unless the proxy provides for a longer period.
Section 10. Action without a Meeting. No action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these By-laws, and no action shall be taken by the stockholders by written consent.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors.
Section 2. Nomination. Beginning with the annual meeting of the stockholders to be held in 1987, nominations for directors to be elected at an annual meeting of the stockholders must be submitted to the Secretary of the Corporation in writing not later than the close of business on the thirtieth calendar day immediately preceding the date of the meeting. All late nominations shall be rejected. Notwithstanding the forgoing, at any time prior to the election of directors at a meeting of stockholders, the Board of Directors may designate a substitute nominee to replace any bona fide nominee who was nominated as set forth above and who, for any reason, becomes unavailable for election as a director.
Section 3. Election and Term. Except as otherwise provided by law, Directors shall be elected at the annual meeting of stockholders and shall hold office until the next annual meeting of stockholders and until their successors are elected and qualify, or until they sooner die, resign or are removed. At each annual meeting of stockholders at which a quorum is present, the persons receiving a plurality of the votes cast shall be the Directors .
Section 4. Number. The number of Directors shall be such number as shall be determined from time to time by the Board of Directors.
Section 5. Quorum and Manner of Acting. Unless otherwise provided by law, the presence of 50% of the whole Board of Directors shall be necessary to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of the Directors present may adjourn the meeting from time to time until the quorum shall be present. Notice of any adjourned meeting need not be given. At all meetings of Directors at which a quorum is present, all matters shall be decided by the affirmative vote of the majority of the Directors present, except as otherwise required by law. The Board of Directors may hold its meetings at such place or places within or without the State of Delaware as the Board of Directors may from time to time determine or as shall be specified in the respective notices, or waivers of notice, thereof.
Section 6. Organization Meeting. Immediately after each annual meeting of stockholders for the election of the Directors, the Board of Directors shall meet at the place of the annual meeting of the stockholders for the purpose of organization, the election of officers and the transaction of other business. Notice of such meeting need not be given. If such meeting is held at any other time or place, notice thereof must be given as hereinafter provided for special meetings of the Board of Directors, subject to the execution of a waiver of the notice thereof signed by, or the attendance at such meeting of, all Directors who may not have received such notice.
Section 7. Regular Meetings. Regular meetings of the Board of Directors may be held, without notice, at such time and place, within or without the State of Delaware, as shall from time to time be determined by resolution of the Board of Directors. At such meetings, the Board of Directors may transact such business as may be brought before the meeting.
Section 8. Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board or the President or by a majority of the Directors. Notice of each such meeting shall be given orally or in writing, by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other electronic means, at least twenty-four (24) hours before the date and time of the meeting, or sent in writing to each Director either by first class mail, charges prepaid, at least three days before the date of the meeting or by a reputable overnight delivery service, at least two days before the date of the meeting. Each such notice shall state the time and place of the meeting and, as may be required, the purposes thereof. Notice of any meeting of the Board of Directors need not be given to any Director if he shall sign a written waiver thereof either before or after the time stated therein for such meeting, or if he shall be present at the meeting. Unless limited by law, the Certificate of Incorporation, these By-laws or terms of the notice thereof, any and all business may be transacted at any meeting even though no notice shall have been given.
Section 9. Removal of Directors. Any Director or the entire Board of Directors may be removed, with or without cause, at any time, by action of the holders of record of the majority of the issued and outstanding stock of the Corporation entitled to vote at an election of the directors (a) present in person or by proxy at a meeting of the holder of such stock, or (b) by a consent in writing in the manner contemplated in Section 10 of Article II, and the vacancy or vacancies in the Board of Directors caused by any such removal may be filled by action of such a majority at such meeting or at any subsequent meeting or by consent.
Section 10. Resignations. Any Director of the Corporation may resign at any time by giving notice to the Chairman of the Board, the President or the Secretary of the Corporation. The resignation of any Director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice, and acceptance of such resignation shall not be necessary to make it effective.
Section 11. Vacancies. Any newly created directorships or vacancies occurring in the Board by reason of death, resignation, retirement, disqualification or removal, with or without cause, may be filled by a majority of the directors then in office though less than a quorum. Any Director so chosen, whether selected to fill a vacancy or elected to a new directorship, shall hold office until the next meeting of stockholders at which an election of directors is in the regular order of business, and until his successor has been elected and qualifies, or until he sooner dies, resigns or is removed.
Section 12. Compensation of Directors. No Director shall be entitled to any salary as such, but Directors shall be entitled to such compensation for their services, in the form of cash or equity of the Corporation, or a combination thereof, as may be approved by the Board of Directors from time to time, including, if so approved, reasonable annual fees and reasonable fees for attending meetings. Directors may also be reimbursed by the Corporation for all reasonable expenses incurred in travelling to and from meetings of the Board of Directors and meetings of any committee of the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor.
Section 13. Action without a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if written consent thereto is signed by all members of the Board, and such written consent is filed with the minutes or proceedings of the Board.
Section 14. Telephonic Participation in Meetings. Any member of the Board of Directors, or any committee thereof, may participate in a meeting 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 such meetings.
ARTICLE IV
COMMITTEES
Section 1. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation, which, to the extent provided in the resolution and permitted by law, shall have and may exercise the powers of the Board of Directors in the management of the business and the affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it. 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. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
Section 2. Appointment of Additional Members to Committees. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified members.
ARTICLE V
OFFICERS
Section 1. Principal Officers. The Board of Directors shall elect, if and when designated by the Board of Directors, a Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a Treasurer, and may in addition elect one or more Vice Presidents and such other officers as it deems fit; the Chairman of the Board, the President, the Secretary, the Treasurer, the Vice Presidents, if any, being the principal officers of the Corporation. One person may hold, and perform the duties of, any two or more of the said offices.
Section 2. Election and Term of Office. The principal officers of the Corporation shall be elected annually by the Board of Directors at the organization meeting thereof. Each such officer shall hold office until his successor shall have been elected and shall qualify, or until his earlier death, resignation or removal.
Section 3. Other Officers. In addition, the Board may elect, or the Chairman of the Board or President may appoint, such other officers as they deem fit. Any such other officers chosen by the Board of Directors shall be subordinate officers and shall hold office for such period, have such authority and perform such duties as the Board of Directors, the Chairman of the Board or the President may from time to time determine.
Section 4. Removal. Any officer may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors at any regular meeting of the Board, or at any special meeting of the Board called for that purpose, at which a quorum is present.
Section 5. Resignations. Any officer may resign at any time by giving written notice to the Chairman of the Board, the President, the Secretary or the Board of Directors. Any such resignation shall take effect upon receipt of such notice or at any later time specified therein, and the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies. A vacancy in any office may be filled for the unexpired portion of the term in the manner prescribed in these By-laws for election or appointment to such office for such term.
Section 7. Chairman of the Board. The Chairman of the Board shall have general powers and duties of supervision and management usually vested in the office of the chairmen of the board of a corporation. The Chairman of the Board of Directors shall preside, if present, at all meetings of the Board of Directors and at all meetings of the stockholders. He shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.
Section 8. President. Unless some other officer has been elected Chief Executive Officer, the President shall be the chief executive officer of the Corporation and shall have the general powers and duties vested in the office of chief executive officer of a corporation. He shall have general supervision, direction and control of the business of the corporation. He shall, in the absence of the Chairman, preside at all meetings of the shareholders and the Board of Directors.
Section 9. Vice President. Each Vice President shall have such powers and shall perform such duties as shall be assigned to him by the Board of Directors.
Section 10. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation. He shall exhibit at all reasonable times his books of account and records to any of the Directors of the Corporation upon application during business hours at the office of the Corporation where such books and records shall be kept; when requested by the Board of Directors, he shall render a statement of the condition of the finances of the Corporation at any meeting of the Board or at the annual meeting of stockholders; he shall receive, and give receipt for, moneys due and payable to the Corporation from any source whatsoever; in general, he shall perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Chairman of the Board, the President or the Board of Directors. The Treasurer shall give such bond, if any, for the faithful discharge of his duties as the Board of Directors may require.
Section 11. Secretary. The Secretary, if present, shall act as secretary at all meetings of the Board of Directors and of the stockholders and keep the minutes thereof in a book or books to be provided for that purpose; he shall see that all notices required to be given by the Corporation are duly given and served; he shall have charge of the stock records of the corporation, he shall see that all reports, statements and other documents required by law are properly kept and filed; and in general he shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Chairman of the Board, the President or the Board of Directors.
Section 12. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors, and the salaries of any other officers may be fixed by the Chairman.
ARTICLE VI
INDEMNIFICATION
Section 1. Mandatory Indemnification. The Corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer or employee of the Corporation or of any of its subsidiaries.
Section 2. Optional Indemnification. In all situations in which indemnification is not mandatory under Section 1 of this Article VI, the Corporation may, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it is empowered to indemnify pursuant thereto.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1. Certificate for Stock. Every stockholder of the Corporation shall be entitled to a certificate or certificates, to be in such form as the Board of Directors shall prescribe, certifying the number of shares of the capital stock of the Corporation owned by him. No certificates shall be issued for partly paid shares.
Section 2. Stock Certificate Signature. The certificates for such stock shall be numbered in the order in which they shall be issued and shall be signed by the Chairman of the Board or the President and the Secretary or Treasurer of the Corporation and its seal shall be affixed thereto. If such certificate is countersigned (1) by a transfer agent other than the Corporation or its employee, or (2) by a registrar other than the Corporation or its employee, the signatures of such officers of the Corporation may be facsimiles. In case any officer of the Corporation who has signed, or whose facsimile signature has been placed upon, any such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue.
Section 3. Stock Ledger. A record shall be kept by the Secretary or by any other officer, employee or agent designated by the Board of Director of the name of each person, firm or corporation holding capital stock of the Corporation, the number of shares represented by, and the respective dates of, each certificate for such capital stock, and in case of cancellation of any such certificate, the respective dates of cancellation.
Section 4. Registrations of Transfers of Stock. Registrations of transfers of shares of the capital stock of the Corporation shall be made on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation or with a transfer clerk or a transfer agent appointed as provided in Section 5 of this Article VII, and on surrender of the certificate or certificates for such shares properly endorsed, with such proof of authenticity of the signature as the Corporation or its agents may reasonably require, and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, that whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.
Section 5. Regulations. The Board of Directors may make such rules and regulations as it may deem expedient, not inconsistent with the Certificate of the Incorporation or these By-laws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. It may appoint, or authorize any principal officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates of stock to bear the signature or signatures of any of them.
Section 6. Lost, Stolen, Destroyed or Mutilated Certificates. Before any certificates for stock of the Corporation shall be issued in exchange for certificates which shall become mutilated or shall be lost, stolen, or destroyed, proper evidence of such loss, theft, mutilation or destruction shall be furnished to the Corporation, and if required by the Board of Directors, the owner of the lost, stolen or destroyed certificate, or his legal representatives, shall be required to give the Corporation a bond sufficient to indemnify the Corporation against any claim made against it on account of the alleged loss, theft or destruction of any such certificate.
Section 7. Record Dates. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect to 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 date as a record date for any such determination of stockholders. Such record date shall not be more than sixty nor less than ten days before the date of such meeting, nor shall it be more than sixty days prior to any other action.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Corporate Seal. The Board of Directors shall provide a corporate seal, which shall be in the form of a circle and shall bear the name of the Corporation and words and figures showing that it was incorporated in the State of Delaware in the year 1982. The Secretary shall be the custodian of the seal. The Board of Directors may authorize a duplicate seal to be kept and used by any other officer.
Section 2. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person on behalf of the Corporation to attend, vote and grant proxies to be used at any meeting of stockholders of any corporation (except the Corporation) in which the Corporation may hold stock.
Section 3. Dividends. Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor, at any regular or special meeting, declare dividends upon the capital stock of the Corporation as and when they deem expedient. Before declaring any dividend, there may be set apart out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the Corporation.
Section 4. Emergency By-laws. In the event of any emergency resulting from a nuclear attack or similar disaster, and during the continuance of such emergency, the following By-law provisions shall be in effect, notwithstanding any other provisions of these By-laws:
| (a)
|
A meeting of the Board of Directors or of any committee thereof may be called by any officer or director upon one hour's notice to all persons entitled to notice whom, in the sole judgment of the notifier, it
is feasible to notify;
|
| (b)
|
The director or directors in attendance at the meeting of the Board of Directors or of any committee thereof shall constitute a quorum; and
|
| (c)
|
These By-laws may be amended or repealed, in whole or in part, by a majority vote of the directors attending any meeting of the Board of Directors, provided such amendment or repeal shall only be effective for
the duration of such emergency.
|
Section 5. Severability. If any provision of these By-laws is illegal or unenforceable as such, such illegality or unenforceability shall not affect any other provision of these By-laws and such other provisions shall continue in full force and effect.
ARTICLE IX
AMENDMENTS OR REPEAL
Section 1. Amendments or Repeal. These By-laws of the Corporation may be altered, amended or repealed, in whole or in part, by the Board of Directors at any regular or special meeting of the Board of Directors or by the affirmative vote of the holders of record of a majority of the issued and outstanding stock of the Corporation (a) present in person or by proxy at a meeting of holders of such stock and entitled to vote thereon, or (b) by a consent in writing in the manner contemplated in Section 10 of Article II; provided, however, that notice of the proposed alteration, amendment or repeal is contained in the notice of such meeting. By-laws, whether made or altered by the stockholders or by the Board of Directors, shall be subject to alteration or repeal by the stockholders as provided in this Section 1 of Article IX.
Section 2. Recording Amendments and Repeals. The text of all amendments and repeals to these By-laws shall be attached to the By-laws with a notation of the date of each such amendment or repeal and a notation of whether such amendment or repeal was adopted by the Board of Directors or the stockholders.
ARTICLE X
APPROVAL OF AMENDED BY-LAWS AND
RECORD OF AMENDMENTS AND REPEALS
Section 1. Approval and Effective Date. These By-laws have been approved as the By-laws of the Corporation this 31st day of January, 1986 and shall be effective as of said date.
| Section 2. Amendments or Repeals. | ||
| Section Involved | Date Amended or
Repealed |
Approved By |
| Article II, Section 9 | March 30, 1999 | Board of Directors |
| Article III, Section 4 | August 11, 1999 | Board of Directors |
| Article III, Section 4 | November 15, 1999 | Board of Directors |
| Article II, Section 4 | August 18, 2000 | Board of Directors |
| Article II, Section 10 | August 18, 2000 | Board of Directors |
| Article III, Section 4 | August 18, 2000 | Board of Directors |
| Article III, Section 8 | August 18, 2000 | Board of Directors |
| Article III, Section 12 | August 18, 2000 | Board of Directors |
| Article III, Section 14 | August 18, 2000 | Board of Directors |
| Article V, Section 1 | August 18, 2000 | Board of Directors |
| Article V, Section 8 | August 18, 2000 | Board of Directors |
|
|