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EXHIBIT 3.2
FIRST AMENDED AND RESTATED BYLAWS
OF
JDA SOFTWARE GROUP, INC.
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JDA SOFTWARE GROUP, INC.
FIRST AMENDED AND RESTATED BYLAWS
ARTICLE I.
OFFICES
Section 1. The registered office shall be in the County of New Castle,
State of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be held at such
place, on such date, and at such time as the Board of Directors shall each year
fix, which date shall be within thirteen (13) months subsequent to the date of
the last annual meeting of stockholders.
Section 2. The officer who has charge of the stock ledger of the
Corporation 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 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.
Section 3. Special Meetings of the stockholders (or of any specific
class thereof), for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the President
and shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of a
stockholder or stockholders owning at least ten percent (10%) of the number of
shares of stock (or, with respect to meetings of a specific class, the number of
shares of such specific class thereof of the Corporation issued and outstanding
and entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. Upon the closing of the first sale of the
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Corporation's common stock pursuant to a firmly underwritten registered public
offering (the "IPO"), special meeting of the stockholders may be called only by
the President or the Chief Executive Officer and shall be called by the
President or Chief Executive Officer at the request in writing of at least
one-third (1/3) of the directors then in office, and shall be held at such
place, on such date. and at such time as the President or Chief Executive
Officer shall fix. Business transacted at special meetings shall be confined to
the purpose or purposes stated in the notice.
Section 4. Written notice of the place, date, and time of all annual
meetings of the stockholders shall be given, not less than ten (10) nor more
than sixty (60) days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting, except as otherwise provided
herein or required by law (meaning, here and hereinafter, as required from time
to time by the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation). Written notice of a special meeting stating
the place, date, and hour of the meeting and the purpose or purposes for which
the meeting is called, shall be given not less than five (5) days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 5. At an annual or special meeting of the stockholders, only
such business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a meeting, business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the President, Chief Executive Officer or Board of Directors, (b)
properly brought before the meeting by or at the direction of the Board of
Directors, (c) properly brought before an annual meeting by a stockholder, or
(d) properly brought before a special meeting by a stockholder, but if, and only
if, the notice of a special meeting provides for business to be brought before
the meeting by stockholders. For business to be properly brought before a
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation. To be timely, a stockholder
proposal to be presented at an annual meeting shall be received at the
Corporation's principal executive offices not less than 120 calendar days in
advance of the date that the Corporation's (or the Corporation's predecessor's)
proxy statement was released to stockholders in connection with the previous
year's annual meeting of stockholders, except that if no annual meeting was held
in the previous year or the date of the annual meeting has been changed by more
than 30 calendar days from the date contemplated at the time of the previous
year's proxy statement, or in the event of a special meeting, notice by the
stockholder to be timely must be received not later than the close of business
on the tenth day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual or special meeting (a) a brief description of the
business desired to be brought before the annual or special meeting and the
reasons for conducting such business at the special meeting, (b) the Dame and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest of the
stockholder in such business.
Section 6. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders (or any
specific class thereof) for the transaction of business except
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as otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented by any meeting of the
stockholders, the chairman of the meeting or the holders of a majority of shares
of stock entitled to vote thereat who are present, in person or represented by
proxy, 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 present
or represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. 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.
Section 7. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one on which by express provision of the General
Corporation Laws of the State of Delaware or of the Certificate of
Incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question. Each stockholder shall
at every meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three (3) years from its date,
unless the proxy provides for a longer period.
Section 8. Prior to the IPO, unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such 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, provided, however, that upon
the closing of the IPO, this Section 8 of Article II shall no longer be
effective and shall be null and void. 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 III.
DIRECTORS
Section 1. The number of directors shall be between four (4) and seven
(7), with the number initially set at four (4), and thereafter shall be fixed
from time to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at the time
any such resolution is presented to the Board for adoption). The four (4)
directors shall be elected at the annual meeting of the stockholders, who shall
vote for such directors as provided in the Certificate of Incorporation. Upon
the closing of the IPO, the directors shall be divided into three (3) classes,
with the term of office of the first class, which
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class shall initially consist of one (1) director, to expire at the first annual
meeting of stockholders held after the IPO; the term of office of the second
class, which class shall initially consist of one (1) director, to expire at the
second annual meeting of stockholders held after the IPO; the term of office of
the third class, which class shall initially consist of two (2) directors, to
expire at the third annual meeting of stockholders held after the IPO; and
thereafter for each such term to expire at each third succeeding annual meeting
of stockholders after such election. Upon the closing of the IPO, a vacancy
resulting from the removal of a director by the stockholders as provided in
Article III, Section 2 below may be filled by the Board of Directors. All
directors shall hold office until the expiration of the term for which elected
and until their respective successors are elected, except in the case of the
death, resignation or removal of any director. Directors need not be
stockholders.
Section 2. Prior to the IPO, any vacancies on the Board of Directors
shall be filled by the stockholders of the Corporation entitled to fill such
vacancy as provided in the Certificate of Incorporation and the director so
chosen shall hold office until such director's successor is elected and
qualified. Vacancies from any newly created directorships resulting from any
increase in the authorized number of directors may be filled by all of the
directors then in office, and the directors so chosen shall hold office until
such directors' successors are elected and qualified. Upon the closing of the
IPO, subject to the rights of the holders of any series of Preferred Stock then
outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification or other cause
(other than removal from office by a vote of the stockholders) may be filled
only by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office of the class to
which they have been elected expires. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 3. The business of the Corporation shall be managed by its
Board of Directors which shall have and exercise full power in the management
and conduct of the business and affairs of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation of by these Bylaws directed or required to be exercised or done by
the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of shareholders and in
the same place as the annual meeting of shareholders, and no notice to the newly
elected directors of such meeting shall be necessary in order legally to hold
the meeting provided a quorum shall be present. In the event such meeting is not
held, the meeting may be held at such time and place as shall be
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specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver by all of the
directors.
Section 6. Regular meetings of the Board of Directors shall be held at
least quarterly and may be held without notice at such time and at such place as
shall from time to time be determined by the board.
Section 7. Prior to the IPO, special meetings of the Board of Directors
may be called by the President or any one (1) director on one (1) day's notice
to each director, either personally or by mail or by telegram or facsimile (with
receipt of confirmation of transmission); special meetings shall be called by
the President or Secretary in like manner or on like notice on the written
request of one director. Upon the closing of the IPO, special meetings of the
board may be called by the President or Chief Executive Officer or by resolution
adopted by at least one-third (1/3) of the directors then holding office, though
less than a quorum, on one (1) day's notice to each director, either personally
or by mail or by telegram or facsimile (with receipt of confirmation of
transmission).
Section 8. At all meetings of the board, a majority of all the
directors of the Corporation shall constitute a quorum and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by the General Corporation Law of the State of Delaware, by the Certificate of
Incorporation or by these Bylaws. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 9. 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 or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Members of the Board of Directors, or any committee
designated by the board, may participate in a meeting of such board or committee
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 such a meeting shall constitute presence in person at such
meeting.
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The board 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.
Any such committee, to the extent provided in the resolution, shall have and may
exercise the powers 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
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papers which may require it; provided, however, that in the absence or
disqualification of any member of such committee or committees and any alternate
members, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act the meeting
in the place of any such absent or disqualified member. 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 12. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committee may be allowed like compensation for attending
committee meetings.
ARTICLE IV.
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram or facsimile (upon receipt of
confirmation of transmission).
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V.
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and may include, or if otherwise required by the Delaware General
Corporation Law, shall include, a President, a Chief Executive Officer, a Vice
President, a Secretary and a Treasurer. The Board of Directors may also choose
additional Vice Presidents, and one or more Assistant Secretaries and Assistant
Treasurers. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders must choose a President, one or more Vice
Presidents, a Secretary and a Treasurer.
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Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
THE PRESIDENT
Section 6. The President shall be the executive officer of the
Corporation, shall preside at all meetings of the stockholders and the Board of
Directors shall see that all orders and resolutions of the Board of Directors
are carried into effect, and shall perform the duties that usually pertain to
this office.
Section 7. He shall execute bonds, mortgages, and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise, signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
THE VICE PRESIDENTS
Section 8. In the absence of the President or in the event of his
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. The Vice Presidents
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision he shall be. He shall have custody of the
corporate seal of the Corporation and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such Assistant
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Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
Section 10. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
Section 12. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 13. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six (6) years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Section 14. The Assistant Treasurer, or if there shall be more than one
(1), the Assistant Treasurers in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the Treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
ARTICLE VI.
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation 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 or the President or a Vice
President or the Treasurer or an Assistant Treasurer,
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or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Where a 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 the officers of the
Corporation may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon a 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.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. 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 of 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 shall not be (i)
more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor (ii) more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors for
action by stockholder consent in writing without a meeting, nor (iii) more than
sixty (60) days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
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to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to interest in such share
or shares on the part of any other person, whether or not it shall have express
or other notice hereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII.
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
director from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall end on the last day
of December in each year unless the Board of Directors shall determine
otherwise.
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SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
BOOKS AND RECORDS
Section 7. The books and records of this Corporation shall be
maintained in the County of Maricopa, State of Arizona, or at such other place
as may be specified from time to time by the Board of Directors.
ARTICLE VIII.
INDEMNIFICATION
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment) against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
amounts paid or to be paid in settlement and amounts expended in seeking
indemnification granted to such person under applicable law, this Bylaw or any
agreement with the Corporation) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 3 of this Article VIII, the Corporation
shall indemnify any such person seeking indemnity in connection with an action,
suit or Proceeding (or part thereof) initiated by such person only if (a) such
indemnification is expressly required to be made by law, (b) the action, suit or
Proceeding (or part thereof) was authorized and approved by the Board of
Directors of the Corporation, or (c) the action, suit or Proceeding (or part
thereof) is brought to establish or enforce a right to indemnification under an
indemnity agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such Proceeding in advance of its final
disposition; provided.
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however. that, unless" the Delaware General Corporation Law then so prohibits,
the payment of such expenses incurred by a director or officer of the
Corporation in his or her capacity as a director or officer (and not in any
other capacity in which service was or is tendered by such person while a
director or officer, including, without limitation. service to an employee
benefit plan) in advance of the final disposition of such Proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be
determined ultimately that such director or officer is not entitled to be
indemnified under this Section or otherwise.
Section 2. Prepayment of Expenses. The Corporation shall pay the
expenses incurred by an officer or director 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 a
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. For purposes of this Section 2, the terms "expenses incurred by an
officer or director in defending any Proceeding" shall not include any fees or
expenses incurred in connection with the affirmative prosecution of any claim
against the Corporation by such director or officer, whether as plaintiff,
counterclaimant, cross-claimant or otherwise.
Section 3. Claims. If a claim for indemnification or payment of
expenses under this Article is not paid in full within sixty (60) days 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.
Section 4. Non-exclusivity of Rights. The rights conferred on any
person by this Article VIII 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.
Section 5. Other Indemnification. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director or
officer 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.
Section 6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VIII 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.
Section 7. Insurance. The Corporation shall maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other
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enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
ARTICLE IX.
AMENDMENTS
Section 1. Prior to the closing of the IPO, these Bylaws may be altered
or repealed at any regular meeting of the Board of Directors or at any special
meeting of the Board of Directors if notice of such alteration or repeal is
contained in the notice of such special meeting. Prior to the closing of the
IPO, any amendments to these Bylaws must be approved by a majority of the
directors then serving and approved by the holders of at least a majority of the
total number of shares of Preferred Stock then outstanding. Upon the closing of
the IPO, the Board of Directors shall be expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of
the Corporation by the Board of Directors shall require the approval of at least
two-thirds (2/3) of the total number of authorized directors (whether or not
there exist any vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repeal is presented to the Board
of Directors). The stockholders shall also have power to adopt, amend or repeal
the Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of
the Corporation by the stockholders shall require, in addition to any vote of
the holders of any class or series of stock of the Corporation required by law
or by this Certificate of Incorporation, the affirmative vote of the holders of
at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all
of the then outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
These First Amended and Restated Bylaws were adopted by all the
directors of the Corporation on the 11th day of October, 1997.
JDA SOFTWARE GROUP, INC.
By: /s/ Frederick M. Pakis
------------------------------------
Frederick M. Pakis, Co-Chairman
Attest:
/s/ Kristen L. Magnuson
- ----------------------------------
Kristen L. Magnuson, Secretary
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TABLE OF CONTENTS
Page
ARTICLE I. OFFICES..................................................... 1
ARTICLE II. MEETINGS OF STOCKHOLDERS.................................... 1
ARTICLE III. DIRECTORS................................................... 3
ARTICLE IV. NOTICES..................................................... 6
ARTICLE V. OFFICERS.................................................... 6
ARTICLE VI. CERTIFICATES OF STOCK....................................... 8
ARTICLE VII. GENERAL PROVISIONS......................................... 10
ARTICLE VIII. INDEMNIFICATION............................................ 11
Section 1. Right to Indemnification................................... 11
Section 2. Prepayment of Expenses..................................... 12
Section 3. Claims..................................................... 12
Section 4. Non-exclusivity of Rights.................................. 12
Section 5. Other Indemnification...................................... 12
Section 6. Amendment or Repeal........................................ 12
Section 7. Insurance.................................................. 12
ARTICLE IX. AMENDMENTS...................................................... 13
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