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10-Q - FORM 10-Q - CALLIDUS SOFTWARE INC | f57247e10vq.htm |
EX-32.1 - EX-32.1 - CALLIDUS SOFTWARE INC | f57247exv32w1.htm |
EX-31.1 - EX-31.1 - CALLIDUS SOFTWARE INC | f57247exv31w1.htm |
Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
CALLIDUS SOFTWARE INC.
(Effective October 18, 2010)
ARTICLE 1
Offices
Offices
Section 1.01. Registered Office. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 1.02. Other Offices. 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.
Section 1.03. Books. The books of the Corporation may be kept within or 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 2
Meetings of Stockholders
Meetings of Stockholders
Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such
place, either within or without the State of Delaware, on such date and at such time as may be
determined from time to time by the Board of Directors (or the Chairman in the absence of a
designation by the Board of Directors).
Section 2.02. Annual Meetings. An annual meeting of stockholders, commencing with the year
2004 shall be held for the election of directors and to transact such other business as may
properly be brought before the meeting.
Section 2.03. Special Meetings. Special meetings of stockholders may be called by the Board
of Directors or the Chairman of the Board of Directors, the
President or the Secretary of the
Corporation and may not be called by any other person.
Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a) 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, if any, date and hour of the meeting, the means
of remote communications, if any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by the General Corporation Law
of the State of Delaware as the same exists or may hereafter be amended (Delaware Law), such
notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each
stockholder of record entitled to vote at such meeting. Unless these bylaws otherwise require,
when a meeting is adjourned to another time or place (whether or not a quorum is present), notice
need not be given of the adjourned meeting if the time, place, if any, and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, 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 30 days, or 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.
(b) A written waiver of any such notice signed by the person entitled thereto, or a waiver by
electronic transmission 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 the 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.
(c) Business transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 2.05. Quorum. Unless otherwise provided under the certificate of incorporation or
these bylaws and subject to Delaware Law, the presence, in person or by proxy, of the holders of a
majority of the outstanding capital stock of the Corporation entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business. If, however, such quorum
shall not be
present or represented at any meeting of the stockholders, the stockholders present in person
or represented by proxy shall adjourn the meeting, 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.
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Section 2.06. Voting. (a) Unless otherwise provided in the certificate of incorporation and
subject to Delaware Law, each stockholder shall be entitled to one vote for each outstanding share
of capital stock of the Corporation held by such stockholder. Any share of capital stock of the
Corporation held by the Corporation shall have no voting rights. Unless otherwise provided in
Delaware Law, the certificate of incorporation or these bylaws, the affirmative vote of a majority
of the shares of capital stock of the Corporation present, in person or by written proxy, at a
meeting of stockholders and entitled to vote on the subject matter shall be the act of the
stockholders.
(b) Each stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him or her by written proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer period.
Section 2.07. Action by Consent. Any action required or permitted to be taken at any annual
or special meeting of stockholders may be taken only upon the vote of stockholders at an annual or
special meeting duly noticed and called in accordance with Delaware Law and may not be taken by
written consent of stockholders without a meeting.
Section 2.08. Organization. At each meeting of stockholders, the Chairman of the Board, if
one shall have been elected, or in the Chairmans absence or if one shall not have been elected,
the director designated by the vote of the majority of the directors present at such meeting, shall
act as chairman of the meeting. The Secretary (or in the Secretarys absence or inability to act,
the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as
secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings of stockholders shall
be as determined by the chairman of the meeting.
Section 2.10. Nomination of Directors. Only persons who are nominated in accordance with the
procedures set forth in these bylaws shall be eligible to serve as directors. Nominations of
persons for election to the Board of Directors of the Corporation may be made at a meeting of
stockholders (a) by or at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice provided for in this
Section 2.10, who shall be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this Section
2.10. Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the secretary of the Corporation.
To be timely, a stockholders notice shall be delivered to or mailed and received at the principal
executive offices of the Corporation not later than the close of business on the ninetieth calendar
day, nor earlier than the close of business on the one hundred and twentieth calendar day, prior to
the first anniversary of the preceding years annual meeting, provided, however, that in the
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event that the date of the annual meeting is advanced more than thirty calendar days prior to, or delayed
more than sixty calendar days after such anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the close of business on the later of the sixtieth calendar
day prior to such annual meeting or the tenth calendar day following the calendar day on which
public announcement of the date of such meeting is first made by the Corporation. Such
stockholders notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934
(including such persons written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the Corporations books, of such stockholder and (ii) the class and
number of shares of the Corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the secretary of the Corporation that information required to be set
forth in a stockholders notice of nomination which pertains to the nominee. No person shall be
eligible to serve as a director of the Corporation unless nominated in accordance with the
procedures set forth in this bylaw. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the bylaws, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 2.10, a stockholder shall also comply with all applicable requirements
of the Securities Exchange Act of 1934, and the rules and regulations thereunder with respect to
the matters set forth in this Section 2.10.
Section 2.11. Notice of Business. At any meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting (a) by or at the direction of the
Board of Directors or (b) by any stockholder of the Corporation who is a stockholder of record at
the time of giving of the notice provided for in this Section 2.11, who shall be entitled to vote
at such meeting and who complies with the notice procedures set forth in this Section 2.11. For
business to be properly brought before a stockholder meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the secretary of the Corporation. To be timely, a
stockholders notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not later than the close of business on the ninetieth calendar day, nor earlier
than the close of business on the one hundred and twentieth calendar day, prior to the first
anniversary of the preceding years annual meeting, provided, however, that in the event that the
date of the annual meeting is advanced more than thirty calendar days prior to, or delayed more
than sixty calendar days after such anniversary date, notice by the stockholder to be timely must
be so delivered not earlier than the close of business on the later of the sixtieth calendar day
prior
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to such annual meeting or the tenth calendar day following the calendar day on which public
announcement of the date of such meeting is first made by the Corporation. A stockholders notice
to the secretary shall set forth as to each matter the stockholder proposes to bring before the
meeting (a) a brief description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address, as they appear on
the Corporations 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. Notwithstanding anything in the bylaws to the
contrary, no business shall be conducted at a stockholder meeting except in accordance with the
procedures set forth in this Section 2.11. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of the bylaws, and if he should so determine, he
shall so declare to the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing, provisions of this Section 2.11, a stockholder
shall also comply with all applicable requirements of the Securities Exchange Act of 1934, and the
rules and regulations thereunder with respect to the matters set forth in this Section 2.11.
Section 2.12. Proxy Access Rules. Notwithstanding anything to the contrary, the requirements
of stockholders in respect of director nominations pursuant to Section 2.10 and other business
pursuant to Section 2.11 shall be deemed satisfied by a stockholder if such stockholder has
submitted to the Corporation a nomination in compliance with Rule 14a-11 or a proposal in
compliance with Rule 14a-8 under the Exchange Act of 1934, and such stockholders nomination or
proposal, as the case may be, has been included in a proxy statement that has been prepared by the
Corporation to solicit proxies for the meeting of stockholders.
ARTICLE 3
Directors
Directors
Section 3.01. General Powers. Except as otherwise provided in Delaware Law or the
certificate of incorporation, the business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
Section 3.02. Number, Election and Term of Office. The Board of Directors shall consist of
not less than five nor more than nine directors, with the exact number of directors to be
determined from time to time solely by resolution adopted by the affirmative vote of a majority of
the entire Board of Directors. The Board may from time to time elect one director to serve as the
Chairman of the Board, to have the powers specified in these bylaws. The directors shall be
divided into three classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of
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directors constituting the entire
Board of Directors. Except as otherwise provided in the certificate of incorporation, each
director shall serve for a term ending on the date of the third annual meeting of stockholders next
following the annual meeting at which such director was elected. Notwithstanding the foregoing,
each director shall hold office until such directors successor shall have been duly elected and
qualified or until such directors earlier death, resignation or removal. Directors need not be
stockholders.
Section 3.03. Quorum and Manner of Acting. Unless the certificate of incorporation or these
bylaws require a greater number, a majority of the total number of directors shall constitute a
quorum for the transaction of business, and the affirmative vote of a majority of the directors
present at meeting at which a quorum is present shall be the act of the Board of Directors. When a
meeting is adjourned to another time or place (whether or not a quorum is present), notice need not
be given of the adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any
business which might have been transacted at the original meeting. If a quorum shall not be
present at any meeting of the Board of Directors the directors present thereat shall adjourn the
meeting, from time to time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 3.04. Time and Place of Meetings. The Board of Directors shall hold its meetings at
such place, either within or without the State of Delaware, and at such time as may be determined
from time to time by the Board of Directors (or the Chairman in the absence of a determination by
the Board of Directors).
Section 3.05. Annual Meeting. The Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business, as soon as
practicable after each annual meeting of stockholders, on the same day and at the same place where
such annual meeting shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may be held at such
place either within or without the State of Delaware, on such date and at such time as shall be
specified in a notice thereof given as hereinafter provided in Section 3.07 herein or in a waiver
of notice thereof signed by any director who chooses to waive the requirement of notice.
Section 3.06. Regular Meetings. After the place and time of regular meetings of the Board of
Directors shall have been determined and notice thereof shall have been once given to each member
of the Board of Directors, regular meetings may be held without further notice being given.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may be called by
the Chairman of the Board or the President and shall be called by the Chairman of the Board,
President or Secretary on the written
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request of three directors. Notice of special meetings of
the Board of Directors shall be given to each director at such persons business or residence in
writing by hand delivery, first-class or overnight mail or courier service, telegram, facsimile or
other electronic transmission, or orally by telephone. If mailed by first class mail, such notice
shall be deemed adequately delivered when deposited in the United States mail so addressed, with
postage thereon prepaid, at least four calendar days before the time of the holding of the meeting.
If the notice is delivered by telegram, overnight mail or courier service, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph company or the notice
is delivered to the overnight mail or courier service company at least 48 hours before such
meeting. If by telephone, other electronic transmission or hand delivery, the notice shall be
given at least 24 hours prior to the time set for the meeting. Any oral notice given personally or
by telephone may be communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will promptly communicate it to the
director.
Section 3.08. Committees. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The Board 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. In the absence or disqualification of a
member of a committee, the member or members present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, 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; but no such committee shall have the
power or authority in reference to the following matter: (a) approving or adopting, or recommending
to the stockholders, any action or matter expressly required by Delaware Law to be submitted to the
stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation.
Each committee shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
Section 3.09. Action by Consent. 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 or by electronic transmission, and the writing or writings or electronic transmission or
transmissions, are filed with the minutes of proceedings of the Board or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form.
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Section 3.10. Telephonic Meetings. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors, or such committee,
as the case may be, by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
Section 3.11. Resignation. Any director may resign at any time by giving notice in writing
or by electronic transmission to the Board of Directors or to the Secretary of the Corporation.
The resignation of any director shall take effect upon receipt of notice thereof or at such later
time as shall be specified in such notice; and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 3.12. Vacancies. Unless otherwise provided in the certificate of incorporation,
vacancies on the Board of Directors resulting from death, resignation, removal or otherwise and
newly created directorships resulting from any increase in the number of directors may be filled
solely by a majority of the directors then in office (although less than a quorum) or by the sole
remaining director. Each director so elected shall hold office for a term that shall coincide with
the term of the Class to which such director shall have been elected. If there are no directors in
office, then an election of directors may be held in accordance with Delaware Law. Unless
otherwise provided in the certificate of incorporation, when one or more directors shall resign
from the Board, effective at a future date, a majority of the directors then in office, including
those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in the filling of the other vacancies.
Section 3.13. Removal. No director may be removed from office by the stockholders except for
cause with the affirmative vote of the holders of not less than a majority of the total voting
power of all outstanding securities of the corporation then entitled to vote generally in the
election of directors, voting together as a single class.
Section 3.14. Compensation. Unless otherwise restricted by the certificate of incorporation
or these bylaws, the Board of Directors shall have
authority to fix the compensation of directors, including fees and reimbursement of expenses.
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ARTICLE 4
Officers
Officers
Section 4.01. Principal Officers. The principal officers of the Corporation shall be a
President, one or more Senior Vice Presidents or named Vice Presidents, a Treasurer and a Secretary
who shall have the duty, among other things, to record the proceedings of the meetings of
stockholders and directors in a book kept for that purpose. The Corporation may also have such
other principal officers, including one or more Controllers, as the Board may in its discretion
appoint. One person may hold the offices and perform the duties of any two or more of said
offices, except that no one person shall hold the offices and perform the duties of President and
Secretary.
Section 4.02. Election, Term of Office and Remuneration. The principal officers of the
Corporation shall be elected annually by the Board of Directors at the annual meeting thereof.
Each such officer shall hold office until his successor is elected and qualified, or until his
earlier death, resignation or removal. The remuneration of all officers of the Corporation shall
be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as
the Board of Directors shall determine.
Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in
Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant
Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as
the Board of Directors may deem necessary, each of whom shall hold office for such period as the
Board of Directors may from time to time determine. The Board of Directors may delegate to any
principal officer the power to appoint and to remove any such subordinate officers, agents or
employees.
Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers,
any officer may be removed, with or without cause, at any time, by resolution adopted by the Board
of Directors.
Section 4.05. Resignations. Any officer may resign at any time by giving written notice to
the Board of Directors (or to a principal officer if the Board of Directors has delegated to such
principal officer the power to appoint and to remove such officer). The resignation of any officer
shall take effect upon receipt of notice thereof or at such later time as shall be specified in
such notice; and unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and
perform such duties incident to each of their respective offices and such other duties as may from
time to time be conferred upon or assigned to them by the Board of Directors.
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ARTICLE 5
General Provisions
General Provisions
Section 5.01. Fixing the Record Date. (a) 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, 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 more than 60 nor less than 10 days before the date of such meeting. If no
record date is fixed by the Board of Directors, 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. 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 that the Board of Directors may fix a new record date for
the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders 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, and which record
date shall be not more than 60 days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 5.02. Dividends. Subject to limitations contained in Delaware Law and the
certificate of incorporation, the Board of Directors may declare and pay dividends upon the shares
of capital stock of the Corporation, which dividends may be paid either in cash, in property or in
shares of the capital stock of the Corporation.
Section 5.03. Year. The fiscal year of the Corporation shall commence on January 1 and end
on December 31 of each year.
Section 5.04. Corporate Seal. 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, affixed or otherwise reproduced.
Section 5.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize
any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any
meeting of stockholders of any corporation (except this Corporation) in which the Corporation may
hold stock.
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Section 5.06. Amendments. Subject to the certificate of incorporation, these bylaws or any
of them, may be altered, amended or repealed, or new bylaws may be made, by the stockholders
entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors.
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