EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
(AS OF FEBRUARY 28, 2003)
OF
AVANADE INC.
(hereinafter called the "CORPORATION")
ARTICLE I
OFFICES AND RECORDS
Section 1.1 Principal Office. The principal office of the Corporation
shall be located at the principal place of business or such other place as the
Board of Directors may designate.
Section 1.2 Other Offices. The Corporation may have such other offices,
either within or without the State of Washington, as the Board of Directors may
designate or as the business of the Corporation may from time to time require.
Section 1.3 Books and Records. The books and records of the Corporation
may be kept outside the State of Washington at such place or places as may from
time to time be designated by the Board of Directors.
ARTICLE II
SHAREHOLDERS
Section 2.1 Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held on such date, and at such place and time, as may be
fixed by resolution of the Board of Directors.
Section 2.2 Special Meeting. Special meetings of the shareholders may be
called only by the Chairman of the Board or the Chief Executive Officer, and
shall be called by the Chairman of the Board or the Chief Executive Officer at
the request in writing of a majority of the Board of Directors or shareholders
of the Corporation holding shares of Common Stock representing at least 15% of
the total votes entitled to be cast by all issued and outstanding Common Stock.
Such request shall state the purpose or purposes of the proposed meeting.
Section 2.3 Place of Meeting. The Board of Directors may designate the
place of meeting for any meeting of the shareholders. If no designation is made
by the Board of Directors, the place of meeting shall be the principal office of
the Corporation.
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Section 2.4 Notice of Meeting. Written or printed notice, stating the
place, day and hour of the meeting and, in the case of special meetings, the
purpose or purposes for which the meeting is called, shall be prepared and
delivered by the Corporation not less than ten days nor more than sixty days
before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail with
postage thereon prepaid, addressed to the shareholder at his address as it
appears on the stock transfer books of the Corporation. Such further notice
shall be given as may be required by law. Meetings may be held without notice if
all shareholders entitled to vote are present, or if notice is waived by those
not present (whether before, during or after such meeting). Any previously
scheduled meeting of the shareholders may be postponed by resolution of the
Board of Directors upon public notice given prior to the date previously
scheduled for such meeting of shareholders.
Section 2.5 Quorum and Adjournment. Except as otherwise provided by law or
by the Articles of Incorporation, the holders of outstanding shares representing
a majority of all votes entitled to be cast by outstanding shares of the
Corporation entitled to vote generally in the election of Directors, represented
in person or by proxy, shall constitute a quorum at a meeting of shareholders,
except that when specified business is to be voted on by a class or series
voting as a class, the holders of a majority of the shares of such class or
series shall constitute a quorum for the transaction of such business. The
chairman of the meeting or a majority of the shares so represented may adjourn
the meeting from time to time, whether or not there is such a quorum. No notice
of the time and place of adjourned meetings need be given except as required by
law. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
Section 2.6 Voting. Except as otherwise provided by the Articles of
Incorporation or these Bylaws, any questions brought before any meeting of
shareholders shall be decided by a majority vote of the shares entitled to vote
and present in person or represented by proxy. Such votes may be cast in person
or by proxy but no proxy shall be voted on after three years from its date,
unless such proxy provides for a longer period.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by law or by the Articles of
Incorporation or by these Bylaws required to be exercised or done by the
shareholders.
Section 3.2 Number, Tenure and Qualifications. Subject to the provisions
of the Amended and Restated Contribution and Stockholders Agreement dated as of
December 31,
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2001 (the "RESTATED STOCKHOLDERS AGREEMENT") among the Corporation, Microsoft
Corporation ("MICROSOFT"), Accenture LLP ("ACCENTURE "), Accenture Ltd, and
Accenture International Sarl, as amended, supplemented or otherwise modified
from time to time the number of Directors shall be fixed from time to time
exclusively pursuant to a resolution adopted by the Board of Directors. Each
Director elected shall hold office until such Director's successor is elected
and qualified, except as otherwise provided herein or in the Articles of
Incorporation or as required by law.
Section 3.3 Regular Meeting. A meeting of the Board of Directors shall be
held without other notice than this Bylaw immediately after, and at the same
place as, each annual meeting of shareholders. The Board of Directors may, by
resolution, provide the time and place for the holding of additional regular
meetings without other notice than such resolution.
Section 3.4 Special Meeting. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board, the Chief Executive
Officer, a majority of the Board of Directors or any Director designated by
Accenture or Microsoft pursuant to the Restated Stockholders Agreement. The
person or persons authorized to call special meetings of the Board of Directors
may fix the place and time of the meetings.
Section 3.5 Notice. Notices of meetings of the Board of Directors,
including the time and place of any proposed meeting, shall be delivered
personally to each of the Directors or personally communicated to them by an
officer of the Corporation by telephone, facsimile or electronic mail and
confirmed in writing by facsimile or electronic mail, or communicated by Federal
Express or other comparable overnight courier service (receipt requested) at
least 10 days in advance of such proposed meeting, unless waived by each of the
Directors. Notice shall be transmitted to the last known facsimile number,
electronic mail or postal address of the Director as shown on the records of the
Corporation. Each notice of a regular or special meeting shall include a
toll-free dial-in number to facilitate telephone participation by Directors
pursuant to Section 3.10. Such notice given as provided above and in accordance
with the requirements of the Washington Business Corporation Act for delivery of
notice by electronic transmission shall be considered due, legal and personal
notice to such Director. If at any meeting of the Board of Directors which has
been duly called or noticed, no Director designated by Accenture pursuant to the
Restated Stockholders Agreement is present or no Director designated by
Microsoft pursuant to the terms of the Restated Stockholders Agreement is
present, such meeting shall be adjourned and reconvened in two business days,
unless such adjournment has been waived by each of the Directors. Notice of the
revised meeting date shall be given to each Director pursuant to the foregoing
provisions excluding the number of days of advance notice. Notwithstanding the
provisions of the second sentence of Section 3.6 below, such reconvened meeting
shall be deemed to have a quorum if a majority of the total number of Directors
is present or if three Directors, including the Chairman of the Board, are
present. Meetings of the Board of Directors shall be delayed only once for lack
of participation of the Directors designated by either Accenture or Microsoft
pursuant to the Restated Stockholders Agreement. The provisions in the preceding
four sentences shall not apply if the non-attending Director(s) certify in
writing that their inability to attend is due to personal or business conflicts
and offer two alternative dates within the next 10 business dates at which they
are able and willing to convene a meeting. With
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respect to a meeting which has not been duly called or noticed pursuant to the
foregoing provisions, all transactions carried out at the meeting are as valid
as if they had been carried out at a meeting regularly called and noticed if:
(i) all Directors are present at the meeting, and sign a written consent to the
holding of such meeting, (ii) a majority of the Directors are present and if
those not present sign a waiver of notice of such meeting or a consent to
holding the meeting or an approval of the minutes thereof, whether prior to or
after the holding of such meeting, which waiver, consent or approval shall be
filed with the minutes and other records of the Corporation or (iii) all
Directors attend a meeting without notice and do not protest prior to the
meeting or at its commencement that notice was not given to them.
Section 3.6 Quorum; Voting.
(A) A majority of the total number of Directors (which majority shall,
subject to Section 3.5, include at least one Director designated by each
of Accenture and Microsoft pursuant to the Restated Stockholders
Agreement) shall be necessary to constitute a quorum for the transaction
of business at any meeting of the Board of Directors, and except as
otherwise provided in the Articles of Incorporation, the Bylaws or
applicable law, the action of a majority of the Directors present at any
meeting at which there is a quorum, when duly assembled, is valid. A
meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of Directors, if any action taken
is approved by a majority of the required quorum for such meeting.
(B) Except as set forth in the immediately succeeding sentence or
paragraph (C) of this Section 3.6 or elsewhere in these Bylaws, an action
or decision of the Board of Directors shall require the consent or vote of
a majority of the Directors. Anything in these Bylaws to the contrary
notwithstanding, prior to the closing of an Initial Public Offering (as
defined below) and except to the extent otherwise provided by Section 6.5
of the Restated Stockholders Agreement, the approval or authorization of
any Fundamental Issue (as defined in the Restated Stockholders Agreement)
set forth in Section 6.4 of the Restated Stockholders Agreement shall
require the consent or vote of a majority of the Directors that includes
each Director designated by Accenture pursuant to the Restated
Stockholders Agreement and each Director designated by Microsoft pursuant
to the Restated Stockholders Agreement (and no Director will be deemed to
have voted in favor of any such approval or authorization subject to a
vote of the Board of Directors unless he or she was present at the meeting
where such vote was taken and in fact cast an affirmative vote nor to have
consented to any such approval or authorization subject to a written Board
of Directors consent unless he or she has in fact executed such consent).
For purposes of these Bylaws, an "INITIAL PUBLIC OFFERING" means the
initial primary sale by the Company of shares of Class A Common Stock to
the public pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or successor
form) filed under the Securities Act of 1933, as amended.
(C) Anything in these Bylaws to the contrary notwithstanding, prior
to the closing of an Initial Public Offering, in the event of a tie vote
of Directors in
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respect of any matter requiring the approval or authorization of a
majority of Directors, the Chairman of the Board shall have a tie-breaking
vote such that if he or she exercises such vote the matter will be
approved or authorized, as applicable, by the Board of Directors in
accordance with these Bylaws and the provisions of Washington law.
Section 3.7 Vacancies. Subject to the Restated Stockholders Agreement,
vacancies resulting from death, resignation, retirement, disqualification,
removal from office, an increase in the authorized number of Directors or other
cause may be filled only by (A) the affirmative vote of a majority of the
remaining Directors, though less than a quorum of the Board of Directors, or by
a sole remaining Director or (B) the holders of outstanding shares of the
Corporation representing a majority of the votes entitled to be cast for the
election of Directors by all outstanding shares of the Corporation. Any Director
elected in accordance with the preceding sentence of this Section 3.7 shall hold
office for a term expiring at the next annual meeting of shareholders and until
such Director's successor shall have been duly elected and qualified. No
decrease in the number of authorized Directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
Section 3.8 Executive and Other Committees. The Board of Directors may, by
resolution adopted by a majority of the Board of Directors (which majority shall
include at least one Director designated by each of Accenture and Microsoft
pursuant to the Restated Stockholders Agreement), designate (a) an Executive
Committee to exercise, subject to applicable provisions of law and Section
3.6(B) of these Bylaws, all or part of the powers of the Board of Directors in
the management of the business and affairs of the Corporation when the Board of
Directors is not in session or (b) one or more other committees. The Executive
Committee and each such other committee shall consist of two or more Directors
of the Corporation. A majority of the Board of Directors (which majority shall
include at least one Director designated by each of Accenture and Microsoft
pursuant to the Restated Stockholders Agreement) 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. Any such committee may, to
the extent permitted by law, exercise such powers and shall have such
responsibilities as shall be specified in the designating resolution. Each
committee shall keep written minutes of its proceedings and shall report such
proceedings to the Board of Directors when required.
A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board of Directors shall otherwise provide.
Notice of such meetings shall be given to each member of the committee in the
manner provided for in Section 3.5 of these Bylaws. The presence of a quorum at
any meeting of a committee and the taking of action by any committee shall occur
in the manner provided for in Sections 3.5 and 3.6 of these Bylaws. Subject to
the first sentence of this Section 3.8, the Board of Directors shall have power
at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee.
Section 3.9 Action Without Meeting. Except as provided in the Articles of
Incorporation, any action required or permitted to be taken at any meeting of
the Board of
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Directors or any committee thereof may be taken without a meeting if a written
consent thereto is signed by all members of the Board of Directors or of the
committee, as the case may be, entitled to vote thereon and such written consent
is filed with the minutes of proceedings of the Board of Directors or the
committee.
Section 3.10 Attendance by Communications Equipment. Unless otherwise
restricted by the Articles of Incorporation, members of the Board of Directors
or of any committee designated by the Board of Directors may participate in a
meeting of the Board of Directors or any such committee by means of conference
telephone or similar communications equipment whereby all persons participating
in the meeting can hear each other. Participation in any meeting by such means
shall constitute presence in person at such meeting.
ARTICLE IV
OFFICERS
Section 4.1 Elected Officers. The elected officers of the Corporation
shall be a Chairman of the Board, a Chief Executive Officer, a Chief Financial
Officer, a Secretary, a Treasurer and/or such other officers as the Board of
Directors from time to time may deem proper, including one or more vice
presidents, assistant treasurers and assistant secretaries. The Chairman of the
Board shall be chosen from the Directors by the Directors. All officers chosen
by the Board of Directors shall each have such powers and duties as from time to
time may be conferred by the Board of Directors. Any two or more offices may be
held by the same person.
Section 4.2 Election and Term of Office. The elected officers of the
corporation shall be elected or appointed annually by the Board of Directors.
Subject to Section 4.6 of these Bylaws and unless a different term of office is
specified by the Board of Directors, each elected officer shall hold office
until his successor shall have been duly elected and shall have qualified or
until his death or until he shall resign.
Section 4.3 Powers and Duties. Each of the officers of the Corporation
shall, unless otherwise determined by the Board of Directors, have, in addition
to such powers and duties as generally pertain to his respective office, such
further powers and duties as may from time to time be determined for him by the
Board of Directors.
Section 4.4 Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of shareholders and Directors and all other notices
required by law or by these Bylaws, and in case of his or her absence or refusal
or neglect so to do, any such notice may be given by any person thereunto
directed by the Chairman of the Board or the Chief Executive Officer, or by the
Board of Directors or the shareholders, upon whose request the meeting is called
as provided in these Bylaws. The Secretary shall record all the proceedings of
the meetings of the Board of Directors, any committees thereof and the
shareholders of the Corporation in a book to be kept for that purpose, and shall
perform such other duties as may be assigned to him or her by the Board of
Directors, the Chairman of the Board or the Chief Executive Officer. The
Secretary
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shall have the custody of the seal of the Corporation and see that the same is
affixed to all instruments requiring it.
Section 4.5 Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. The Treasurer
shall deposit all moneys and other valuables in the name and to the credit of
the Corporation in the depository or depositaries of the Corporation. The
Treasurer shall disburse the funds of the Corporation, taking proper vouchers
for such disbursements. The Treasurer shall render to the Chairman of the Board,
the Chief Executive Officer and the Board of Directors, whenever requested, an
account of all his transactions as Treasurer and of the financial condition of
the Corporation.
Section 4.6 Removal. Any officer elected by the Board of Directors may be
removed by a majority of the Board of Directors, with or without cause,
whenever, in their judgment, the best interests of the Corporation would be
served thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
Section 4.7 Vacancies. A newly created office and a vacancy in any office
because of death, resignation, or removal may be filled by the Board of
Directors for the unexpired portion of the term at any meeting of the Board of
Directors.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1 Stock Certificates and Transfers.
(A) The interest of each shareholder of the Corporation shall be
evidenced by one or more certificates for shares of stock in such form,
not inconsistent with the Articles of Incorporation, as the appropriate
officers of the Corporation may from time to time prescribe. The
certificates of stock shall be signed, countersigned and registered in
such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to
be in facsimile.
(B) All transfers of shares of the capital stock of the Corporation
shall be subject to the terms, conditions and restrictions, if any, set
forth in the Articles of Incorporation or in any agreements between the
Corporation and its shareholders. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the
holder thereof in person or by his attorney, upon surrender for
cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto,
duly executed, with such proof of the authenticity of the signature as the
Corporation or its agents may reasonably require. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate has ceased to be such officer,
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transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Fiscal Year. The fiscal year of the Corporation shall be fixed
by the Board of Directors.
Section 6.2 Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and its Articles of
Incorporation.
Section 6.3 Seal. The corporate seal shall be in such form as the Board of
Directors shall prescribe.
Section 6.4 Waiver of Notice. Whenever any notice is required to be given
to any shareholder or Director of the Corporation under the provisions of the
Washington Business Corporation Act, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice. Neither
the business to be transacted at, nor the purpose of, any annual or special
meeting of the shareholders or the Board of Directors need be specified in any
waiver of notice of such meeting.
Section 6.5 Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant, and it shall be the duty of the Board of Directors
to cause such audit to be made annually.
Section 6.6 Resignations. Any Director or any officer, whether elected or
appointed, may resign at any time by serving written notice of such resignation
on the Chairman of the Board, the Chief Executive Officer or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the Chief
Executive Officer, or the Secretary, unless otherwise specified in said notice.
No formal action shall be required of the Board of Directors or the shareholders
to make any such resignation effective.
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ARTICLE VII
AMENDMENTS
Section 7.1 Amendments. These Bylaws may be altered, amended, rescinded or
repealed in whole or in part, or new Bylaws may be adopted by the affirmative
vote of a majority of the Board of Directors or a majority of the votes entitled
to be cast by the shareholders on the matter, provided that notice of the
proposed change was given in the notice of the meeting. Notwithstanding the
foregoing, prior to the closing of an Initial Public Offering these Bylaws can
be altered, amended, rescinded or repealed only with the prior written consent
of each of Accenture and Microsoft (or their respective successors).
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