EXHIBIT 3.3(c)
BYLAWS
OF
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
TABLE OF CONTENTS
Page
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ARTICLE 1 - STOCKHOLDERS.......................................... 1
1.1 ANNUAL MEETINGS....................................... 1
1.2 SPECIAL MEETINGS...................................... 1
1.3 NOTICE OF MEETINGS.................................... 1
1.4 ADJOURNMENTS.......................................... 1
1.5 QUORUM................................................ 2
1.6 ORGANIZATION.......................................... 2
1.7 VOTING; PROXIES....................................... 2
1.8 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD................................................ 3
1.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE................. 3
1.10 ACTION BY CONSENT OF STOCKHOLDERS..................... 4
ARTICLE 2 - BOARD OF DIRECTORS.................................... 4
2.1 NUMBER; QUALIFICATIONS................................ 4
2.2 ELECTION; RESIGNATION; REMOVAL; VACANCIES............. 4
2.3 REGULAR MEETINGS...................................... 5
2.4 SPECIAL MEETINGS...................................... 5
2.5 TELEPHONIC MEETINGS PERMITTED......................... 5
2.6 QUORUM; VOTE REQUIRED FOR ACTION...................... 5
2.7 ORGANIZATION.......................................... 5
2.8 INFORMAL ACTION BY DIRECTORS.......................... 5
ARTICLE 3 - COMMITTEES............................................ 6
3.1 COMMITTEES............................................ 6
3.2 COMMITTEE RULES....................................... 6
ARTICLE 4 - OFFICERS.............................................. 6
4.1 EXECUTIVE OFFICERS; ELECTION; QUALIFICATIONS; TERM OF
OFFICE; RESIGNATION; REMOVAL; VACANCIES............... 6
4.2 POWERS AND DUTIES OF EXECUTIVE OFFICERS............... 7
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ARTICLE 5 - STOCK................................................. 7
5.1 CERTIFICATES.......................................... 7
5.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE
OF NEW CERTIFICATES................................... 7
ARTICLE 6 - INDEMNIFICATION....................................... 8
6.1 RIGHT TO INDEMNIFICATION.............................. 8
6.2 PREPAYMENT OF EXPENSES................................ 8
6.3 CLAIMS................................................ 8
6.4 NON-EXCLUSIVITY OF RIGHTS............................. 8
6.5 OTHER INDEMNIFICATION................................. 9
6.6 AMENDMENT OR REPEAL................................... 9
ARTICLE 7 - MISCELLANEOUS......................................... 9
7.1 FISCAL YEAR........................................... 9
7.2 SEAL.................................................. 9
7.3 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS,
DIRECTORS AND COMMITTEES.............................. 9
7.4 INTERESTED DIRECTORS; QUORUM.......................... 9
7.5 FORM OF RECORDS....................................... 10
7.6 AMENDMENT OF BYLAWS................................... 10
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BYLAWS
OF
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
AMENDED AND RESTATED
August 28, 2000
----------------------------------------------------
ARTICLE 1
STOCKHOLDERS
------------
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 may be designated by resolution of the Board of Directors from time
to time. Any other proper business may be transacted at the annual meeting.
1.2 SPECIAL MEETINGS
----------------
Special meetings of stockholders for any purpose or purposes may be called
at any time by the Board of Directors, the President or by a committee of the
Board of Directors which has been duly designated by the Board of Directors and
whose powers and authority, as expressly provided in a resolution of the Board
of Directors, include the power to call such meetings, but such special meetings
may not be called by any other person or persons.
1.3 NOTICE OF MEETINGS
------------------
Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Unless otherwise provided
by law, the Certificate of Incorporation or these Bylaws, the written notice of
any meeting shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the mail, postage prepaid, directed to the stockholder at his or her address as
it appears on the records of the corporation.
1.4 ADJOURNMENTS
------------
Any meeting of stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given
of any such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. 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, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
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1.5 QUORUM
------
Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, at each meeting of stockholders the presence in person or by proxy
of the holders of shares of stock having a majority of the votes which could be
cast by the holders of all outstanding shares of stock entitled to vote at the
meeting shall be necessary and sufficient to constitute a quorum. In the absence
of a quorum, the stockholders so present may, by majority vote, adjourn the
meeting from time to time in the manner provided in Section 1.4 of these Bylaws
until a quorum shall attend. 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 directors of such other corporation is 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 to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
1.6 ORGANIZATION
------------
Meetings of stockholders shall be presided over by the Chairman of the
Board, if any, or in his or her absence by the Vice Chairman of the Board, if
any, or in his or her absence by the President, or in his or her absence by a
Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
1.7 VOTING; PROXIES
---------------
Except as otherwise provided by the Certificate of Incorporation, each
stockholder entitled to vote at any meeting of stockholders shall be entitled to
one vote for each share of stock held by him which has voting power upon the
matter in question. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by
proxy, but no such proxy shall be voted or acted upon after three (3) years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the corporation. Voting at meetings of stockholders need
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not be by written ballot and need not be conducted by inspectors of election
unless so determined by the holders of shares of stock having a majority of the
votes which could be cast by the holders of all outstanding shares of stock
entitled to vote thereon which are present in person or by proxy at such
meeting. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law, the Certificate of
Incorporation or these Bylaws, be decided by the vote of the holders of shares
of stock having a majority of the votes which could be cast by the holders of
all shares of stock entitled to vote thereon which are present in person or
represented by proxy at the meeting.
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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (1) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60)
nor less than ten (10) days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten (10) days from the date
upon which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. If no record date is fixed: (1) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; (2) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board of
Directors is required by law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. 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.
1.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE
-------------------------------------
The Secretary shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in
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alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. 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 (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. Upon the willful
neglect or refusal of the directors to produce such a list at any meeting for
the election of directors, they shall be ineligible for election to any office
at such meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or
the books of the corporation, or to vote in person or by proxy at any meeting of
stockholders.
1.10 ACTION BY CONSENT OF STOCKHOLDERS
---------------------------------
Unless otherwise restricted 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 in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
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.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE 2
BOARD OF DIRECTORS
------------------
2.1 NUMBER; QUALIFICATIONS
----------------------
The corporation shall have one or more directors, the number thereof to be
determined from time to time by resolution of the Board of Directors. Directors
need not be stockholders.
2.2 ELECTION; RESIGNATION; REMOVAL; VACANCIES
-----------------------------------------
The Board of Directors shall initially consist of the persons named as
directors in the Certificate of Incorporation or as elected by the sole
incorporator, and each director so elected shall hold office until the first
annual meeting of stockholders or until his or her successor is elected and
qualified. At the first annual meeting of stockholders and at each annual
meeting thereafter, the stockholders shall elect directors each of whom shall
hold office for a term of one (1) year or until his or her successor is elected
and qualified. Any director may resign at any time upon written notice to the
corporation. Any newly created directorship or any vacancy occurring in the
Board of
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Directors for any cause may be filled by a majority of the remaining members of
the Board of Directors, although such majority is less than a quorum, or by a
plurality of the votes cast at a meeting of stockholders, and each director so
elected shall hold office until the expiration of the term of office of the
director whom he has replaced or until his or her successor is elected and
qualified.
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, and if so determined notices thereof
need not be given.
2.4 SPECIAL MEETINGS
----------------
Special meetings of the Board of Directors may be held at any time or place
within or without the State of Delaware whenever called by the President, any
Vice President, the Secretary, or by any two members of the Board of Directors.
Notice of a special meeting of the Board of Directors shall be given by the
person or persons calling the meeting at least twenty-four (24) hours before the
special meeting.
2.5 TELEPHONIC MEETINGS PERMITTED
-----------------------------
Members of the Board of Directors, or any committee designated by the Board
of Directors, may participate in a meeting thereof 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 this Bylaw shall constitute presence in person at such meeting.
2.6 QUORUM; VOTE REQUIRED FOR ACTION
--------------------------------
At all meetings of the Board of Directors a majority of the whole Board of
Directors shall constitute a quorum for the transaction of business. Except in
cases in which the Certificate of Incorporation or these Bylaws otherwise
provide, 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.
2.7 ORGANIZATION
------------
Meetings of the Board of Directors shall be presided over by the Chairman
of the Board, if any, or in his or her absence by the Vice Chairman of the
Board, if any, or in his or her absence by the President, or in his or her
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting
may appoint any person to act as secretary of the meeting.
2.8 INFORMAL ACTION BY DIRECTORS
----------------------------
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Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, 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 of Directors 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 of Directors or such committee.
ARTICLE 3
COMMITTEES
----------
3.1 COMMITTEES
----------
The Board of Directors may, by resolution passed by a majority of the whole
Board of Directors, designate one (1) or more committees, each committee to
consist of one (1) or more of the directors of the corporation. The Board of
Directors may designate one (1) 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 present at any meeting and not disqualified from
voting, whether or not he, she or they 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
permitted by law and to the extent provided in the 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 which
may require it.
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 3 of these Bylaws.
ARTICLE 4
OFFICERS
--------
4.1 EXECUTIVE OFFICERS; ELECTION; QUALIFICATIONS; TERM OF OFFICE;
-------------------------------------------------------------
RESIGNATION; REMOVAL; VACANCIES
-------------------------------
The Board of Directors shall elect a President and Secretary, and it may,
if it so determines, choose a Chairman of the Board and a Vice Chairman of the
Board from among its members. The Board of Directors may also choose one or more
Vice Presidents, one or more Assistant Secretaries,
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a Treasurer and one or more Assistant Treasurers. Each such officer shall hold
office until the first meeting of the Board of Directors after the annual
meeting of stockholders next succeeding his or her election, and until his or
her successor is elected and qualified or until his or her earlier resignation
or removal. Any officer may resign at any time upon written notice to the
corporation. The Board of Directors may remove any officer with or without cause
at any time, but such removal shall be without prejudice to the contractual
rights of such officer, if any, with the corporation. Any number of offices may
be held by the same person. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise may be filled for the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
4.2 POWERS AND DUTIES OF EXECUTIVE OFFICERS
---------------------------------------
The officers of the corporation shall have such powers and duties in the
management of the corporation as may be prescribed by the Board of Directors
and, to the extent not so provided, as generally pertain to their respective
offices, subject to the control of the Board of Directors. The Board of
Directors may require any officer, agent or employee to give security for the
faithful performance of his or her duties.
ARTICLE 5
STOCK
-----
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 Chairman or Vice Chairman of the Board of
Directors, if any, or the President or 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 him or her in the
corporation. Any of or all the signatures on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may 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.
5.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW
-------------------------------------------------------------
CERTIFICATES
------------
The corporation may issued a new certificate of stock in the place of any
certificate theretofore 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 his or her legal representative, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against it on
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account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
ARTICLE 6
INDEMNIFICATION
---------------
6.1 RIGHT TO INDEMNIFICATION
------------------------
The corporation shall, or in the case of employees and agents of the
corporation, may indemnify and hold harmless, to the fullest extent permitted by
applicable law as is presently exists or may hereafter be amended, any person
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding") by reason of the fact that he or she, or a person
for whom he or she is the legal representative, is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses reasonably incurred by such person. The
corporation shall be required to indemnify a person in connection with a
Proceeding initiated by such person only if the Proceeding was authorized by the
Board of Directors of the corporation.
6.2 PREPAYMENT OF EXPENSES
----------------------
The corporation shall pay the expenses incurred in defending any Proceeding
in advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the Proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this Article or otherwise.
6.3 CLAIMS
------
If a claim for indemnification or payment of expenses under this Article is
not paid in full after a written claim therefor has been received by the
corporation, the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the corporation shall have
the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
6.4 NON-EXCLUSIVITY OF RIGHTS
-------------------------
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The rights conferred on any person by this Article 6 shall not be exclusive
of any other rights which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, these Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise.
6.5 OTHER INDEMNIFICATION
---------------------
The corporation's obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or non-profit entity
shall be reduced by any amount such person may collect as indemnification from
such other corporation, partnership, joint venture, trust, enterprise or
non-profit enterprise.
6.6 AMENDMENT OR REPEAL
-------------------
Any repeal or modification of the foregoing provisions of this Article 6
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE 7
MISCELLANEOUS
-------------
7.1 FISCAL YEAR
-----------
The Fiscal Year of the corporation shall be fixed by resolution of the
board of directors, and may be changed at the discretion of the board of
directors.
7.2 SEAL
----
The corporate seal shall have the name of the corporation inscribed thereon
and shall be in such form as may be approved from time to time by the Board of
Directors.
7.3 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS AND COMMITTEES
----------------------------------------------------------------------
Any 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 stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
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7.4 INTERESTED DIRECTORS; QUORUM
----------------------------
No contract or transaction between the corporation and one (1) or more of
its directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one (1) 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 which authorizes the contract or transaction, or
solely because his or her or their votes are counted for such purpose, if: (1)
the material facts as to his or her 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; or (2) the material facts as to his or her 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 (3) 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. Common or 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.
7.5 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, punch cards, magnetic tape, 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.
7.6 AMENDMENT OF BYLAWS
-------------------
These Bylaws may be altered or repealed, and new Bylaws made, by the Board
of Directors, but the stockholders may make additional Bylaws and may alter and
repeal any Bylaws whether adopted by them or otherwise.
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