EXHIBIT 3(ii)
ILOG
Societe anonyme
with a share capital of 9,907,363.80 Euros
Registered office : 0 xxx xx Xxxxxx, XX 00, 00000 Xxxxxxxx
R.C.S. Creteil B 340 852
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UP-DATED BY-LAWS
OCTOBER 23, 2001
MEMORANDUM AND ARTICLES OF ASSOCIATION
TITLE I
FORM - NAME - OBJECTS - REGISTERED OFFICE - DURATION
ARTICLE 1 - FORM
There is, between the owners of the shares hereinafter issued and
of those which could be subsequently issued, a corporation (societe anonyme),
governed by the law of July 24, 1966 on commercial companies and by the present
by-laws.
ARTICLE 2 - NAME
The name of the company is :
ILOG
In all deeds and documents emanating from the company and
addressed to third parties, this name must always be immediately preceded or
followed by the words "Societe anonyme" or the initials "S.A." and by the
mention of the amount of the capital.
ARTICLE 3 - OBJECTS
The corporate object of the company, whether directly or
indirectly, in France and its overseas territories and outside of France, is as
follows :
- the consultation and completion of research and studies and
generally all services relative to Intelligence Software ;
- the development, running, distribution and maintenance of
hardware and software ;
- training in these areas of activity, including audiovisual
techniques and generally, all useful support tools ;
all directly or indirectly on its own behalf or on behalf of
third parties, the sale or in conjunction with third parties, by means of the
setting-up of new companies, capital contributions, the purchase of securities,
mergers, alliances or investment companies or by lease or management lease of
any assets or rights or otherwise.
ARTICLE 4 - REGISTERED OFFICE
The registered office is at :
0 xxx xx Xxxxxx, XX 00, 00000 Xxxxxxxx
It may be transferred to any other place within the same district
(departement) or any adjacent district by decision of the board of directors
subject to the ratification of this decision by the next ordinary general
meeting of the shareholders. It may be transferred to any other place pursuant
to a resolution of the extraordinary general meeting of the shareholders.
In case of a transfer decided by the board of directors, the
board is authorized to complete the advertising and filing formalities resulting
therefrom upon the condition that it is indicated that such a transfer is
subject to the above mentioned approval.
ARTICLE 5 - DURATION
The duration of the company shall be of ninety nine (99) years
from the date of registration with the Register of Commerce and Companies,
except in the event of early dissolution or extension decided by the
extraordinary meeting of the shareholders.
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TITLE II
CAPITAL AND SHARES
ARTICLE 6 - CAPITAL
The capital of the company is of 9,907,363.80 Euros.
It is divided into 16,241,580 shares of 0.61 Euro each, all
subscribed and entirely paid up.
ARTICLE 7 - FORM OF THE SHARES
Shares shall be held either in registered or bearer form, at the
shareholder's discretion.
Shares shall be registered in an individual account opened by the
Company or any authorized intermediary, in the name of each shareholder and hold
under the terms and conditions provided under the applicable laws and
regulations.
The Company may, under the conditions provided by the applicable
regulatory and legal provisions, request to any authorized entity communication
of any information relating to the shareholders, the holders of securities
granting immediate or future voting rights, their identity and the number of
securities that they hold.
ARTICLE 8 - TRANSFER OF SHARES
Any sale of shares shall be executed in accordance with French
law.
ARTICLE 9 - RIGHTS AND OBLIGATIONS ATTACHED TO THE SHARES
The rights and obligations attached to a share benefit and bind a
subsequent holder thereof.
The ownership of a share shall imply ipso facto the acceptance of
the present Memorandum and Articles of Association and of the decision of the
general meetings.
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In addition to the right to vote which is attached by law to the
shares, each share carries a right to a share of corporate assets, of profits,
and of liquidation surplus, proportional to the number and nominal value of the
existing shares.
Each time it shall be necessary to hold a certain number of
shares in order to exercise a right, it will up be to the shareholder(s) missing
such number to take the necessary actions to group a sufficient number of
shares.
The company may require the repurchase, subject to the conditions
set forth in article 269-8 of the law of 24th July 1966, either of all of its
shares with a preferential dividend and no voting right, or of a category of
such shares, each category being determined by the date at which it has been
issued.
ARTICLE 10 - PAYING UP OF THE SHARES
The amount to be paid in cash for the subscription of the shares
issued with respect to an increase of capital shall be payable according to the
terms stipulated by the extraordinary general meeting of the shareholders.
The initial payment shall not be less than (i) one half at the
time of the subscription and (ii) one fourth of the nominal value of the shares
in case of increase in the share capital ; it shall include the whole issuing
premium, if any.
The remainder, which shall be paid-up in one or several times
within a period of five years as from the date of completion of such increase of
capital, shall be called upon by the board of directors.
Each shareholder shall be notified of the amount to be paid and
of the date at which this amount shall fall due fifteen days at least before
that date.
The shareholder who will not have paid at due date the amounts
due on his share(s) shall, automatically and without formal notice, owe to the
company an interest calculated day per day, on the basis of a year of 360 days,
commencing on due date at the legal rate in commercial matters increased by
three points, without prejudice to the personal proceedings that the company may
institute against the defaulting shareholder and to the acts of enforcement
provided by law.
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TITLE III
MANAGEMENT OF THE COMPANY
ARTICLE 11 - BOARD OF DIRECTORS
The company is managed by a board of directors, the number of
members of which is determined by the ordinary general meeting of the
shareholders within the limits of the law.
A legal entity must, at the time of its appointment, designate an
individual who will be its permanent representative on the board of directors.
The term of office of a permanent representative is the same as that of the
director he represents. When a legal entity dismisses its permanent
representative, it must at the same time provide for its replacement. The same
applies in case of death or resignation of the permanent representative.
Each director must own at least one share during his term of
office.
If, at the time of his appointment, a director does not own the
required number of shares or if, during his term of office, he ceases to be the
owner thereof, he shall have a period of three months to purchase such number of
shares, in default of which he shall be automatically deemed to have resigned.
The directors are appointed for a term of three years. A year
corresponds to the period of time between two successive annual ordinary general
meetings of shareholders. The duties of a director shall terminate at the close
of the ordinary general meeting of shareholders which acts on the accounts of
the preceding fiscal year and is held in the year during which the term of
office of said director comes to an end.
The members of the board are renewed in rotation so that the
renewal be as equal as possible and in any case complete for each period of
three years. Renewal takes place according to seniority. However, when required,
the ordinary general meeting may resolve that the order of renewal will be set
by a toss drawn in a board meeting.
The directors may always be re-elected ; they may be revoked at
any time by decision of the general meeting of the shareholders.
In case of death or resignation of one or several directors, the
board of directors may make provisional appointments between two meetings of
shareholders.
The appointment(s) so made have to be ratified by the next
general meeting of shareholders.
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Should the meeting of the shareholders not ratify these
provisional appointments, this shall not affect the validity of the prior
resolutions and acts of the board of directors.
When the number of directors falls below the minimum required by
law, the remaining director(s) must immediately convene the ordinary general
meeting of the shareholders, in order to complete the membership of the board of
directors.
The director appointed in replacement of another director, whose
term of office has not come to its end shall remain in office only for the
remaining term of office of his predecessor.
A salaried employee of the company may be appointed as a
director. His employment contract shall correspond to a position actually held.
In such case, he shall not lose the benefit of his employment contract.
The number of directors bound to the company by an employment
contract may not exceed one third of the directors in office.
The number of directors who are more than seventy-five (75) years
old may not exceed one third of the directors in office. Should such quota be
reached during the director's term of office, the appointment of the oldest
director would be automatically terminated at the close of the nearest general
meeting of the shareholders.
ARTICLE 12 - MEETING OF THE BOARD
12.1. The board of directors shall meet as often as required for the
interest of the company.
12.2. The meetings of the board of directors are convened by the
president. The convening may be made by any means, in oral or written form.
Moreover two directors may validly convene the board. In such
case, they shall indicate the agenda of the meeting.
When a work-committee (comite d'entreprise) has been formed, the
representatives of such committee, appointed in accordance with the provisions
of the Labor Code, shall be convened to all the meetings of the board of
directors.
The meetings of the board are held at the registered office or at
any other place, in France or abroad.
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12.3. The board of directors may not transact business validly unless at
least half of its members are present.
The resolutions of the board of directors shall be carried out at
a majority vote. In case of a split decision, the president should have a
casting vote.
It is specified that any and all decisions to grant options to
subscribe or to buy stock, pursuant to the provisions set forth in articles
208-1 et seq of the law of July 24, 1966 on commercial companies, to a director
holding an employment contract, to the President or to a general manager of the
Company, if this latter is a director, pursuant to authority granted by the
extraordinary general meeting shall be adopted by the affirmative vote of the
majority of the directors present or represented at the Board meeting, the
interested director, and any other director to whom options to subscribe or to
buy stock may be granted, being conclusively refrained from voting.
12.4. Any director may give to another director, by letter, cable or
telex, a proxy to be represented at a meeting of the board. However, each
director may only dispose of one proxy during each meeting.
12.5. The copies or abstracts of the minutes are certified by the
president of the board of directors, a general manager, the director temporarily
delegated in the duties of president or by a representative duly authorized for
that purpose.
ARTICLE 13 - POWERS OF THE BOARD
The board of directors is vested with the most extensive powers
to act under all circumstances on behalf of the company, and to make any
decisions relating to all acts of administration and disposition. The board
shall exercise these powers within the limits of the purposes of the company,
and of the powers expressly granted by law to the general meetings of the
shareholders.
ARTICLE 14 - GENERAL MANAGEMENT OF THE COMPANY
The board of directors shall elect a president, who must be an
individual, from among its members. It shall determine his term of office, which
cannot exceed that of his office as director and may dismiss him at any time.
The president of the board is responsible for the general
management of the company.
The president is vested with the most extensive powers to act
under all circumstances on behalf of the company within the limits of the goals
of the company, except
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for those powers expressly granted by law to the meetings of shareholders and to
the board of directors.
The president of the board cannot be more than seventy (70) years
old. Should the president reach this age limit during his term of office as
president, his office would automatically terminate. This term may be prolonged
however until the next meeting of the board during which his successor will be
appointed. Subject to this provision, the president of the board may always be
reelected.
ARTICLE 15 - GENERAL MANAGER (Directeur General)
Upon proposal of the president, the board of directors may
appoint an individual to assist the president as general manager. The general
manager(s) may be revoked at any time by the board of directors upon proposal of
the president.
In agreement with the president, the board of directors shall
determine the scope and the duration of the powers delegated to the general
manager. When a general manager is a director, his term of office may not exceed
that of his directorship.
As regards third parties, general manager(s) have the same powers
as the president. The general manager(s) is, among others, vested with the
powers to bring a matter to court.
Any general manager cannot be more than seventy (70) years old.
Should a general manager reach this age limit during his term of office as
general manager, his duties would automatically terminate. This term may be
prolonged however until the next meeting of the board during which the new
general manager will be appointed.
The board may appoint two general managers should the share
capital be of at least five hundred thousand (500,000) francs. Five general
managers may be appointed should the share capital be of at least ten million
(10,000,000) francs, provided that at least three of them are directors.
ARTICLE 16 - AGREEMENTS SUBJECT TO AUTHORIZATION
16.1. Any sureties, endorsements and guarantees granted by the company
must be authorized by the board of directors as provided by law.
16.2. Any agreement to be entered into between the company and one of
its directors or general manager(s), whether directly or indirectly or through
an intermediary, must be submitted for the prior authorization of the board of
directors.
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Such prior authorization is also required for agreements between
the company and another enterprise, should one of the directors or general
managers of the company be owner, partner with unlimited liability, manager,
director, general manager, member of the management committe (directoire) or
supervisory council (conseil de surveillance) of said enterprise.
Such prior authorization shall be sought as provided by law. It
is however specified that the relevant director(s) will be taken into account to
calculate the quorum but that their vote will not be taken into account to
determine the majority.
ARTICLE 17 - PROHIBITED AGREEMENTS
Directors, other than legal entities, are forbidden to contract
loans from the company in any form whatsoever, to secure an overdraft from it,
as a current account or otherwise, and to have the company guarantee or secure
their commitments toward third parties.
The same prohibition applies to general managers and to the
permanent representatives of legal entities which are directors. It also applies
to spouses, ascendants and descendants of the persons referred to in this
article, as well as to all interposed persons.
ARTICLE 18 - STATUTORY AUDITORS (Commissaires aux comptes)
Audits of the company shall be carried out, as provided by law,
by one or more statutory auditors legally entitled to be elected as such. When
the conditions provided by law are met, the company must appoint at least two
supervisory auditors.
The statutory auditor(s) shall be appointed by the ordinary
general meeting.
One or more deputy statutory auditors, who may be called to
replace the regular statutory auditors in the case of death, disability,
resignation or refusal to act of the latter, shall be appointed by an ordinary
general meeting.
Should the general ordinary meeting of the shareholders fail to
elect a statutory auditor, any shareholder can claim in court that one be
appointed, provided that the President of the board of directors be duly
informed. The term of office of the statutory auditor appointed in court will
end upon the appointment of the statutory auditor(s) by the general ordinary
meeting of the shareholders.
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TITLE IV
MEETINGS OF SHAREHOLDERS
ARTICLE 19
The general meetings of shareholders shall be convened and held
as provided by law.
The meetings of shareholders are held at the registered office or
at any other place mentioned in the convening notices.
The right to take part in a general meeting of shareholders is
subject to:
- for the holders of registered shares (actions au nominatif),
the recording of the shares in the name of the shareholder on
the Company share register at least one business day prior to
the date of the meeting;
- for the holders of bearer shares (actions au porteur), the
filing, at least one business day prior to the date of the
meeting, in accordance with Article 136 of the Decree of March
23, 1967, of a certificate issued by the financial intermediary
with whom such owner has deposited its shares, stating that such
shares are not transferable until the time fixed for the
shareholders' meeting."
In accordance with the law, a shareholder who cannot attend the
meeting in person may choose either :
- to give a proxy to another shareholder or to his/her spouse,
or
- to vote by mail, or
- to send to the company a proxy without any indication of the
name of the representative;
within the terms and conditions provided by law.
A meeting of the shareholders is presided over by the president
of the board of directors or in his absence, by a director specially authorized
for that purpose by the board. If no president has been appointed, the meeting
elects its president.
The two members of the meeting having the greatest number of
votes and who accept that role, are appointed as scrutineers. The officers of
the meeting appoint a secretary, who may be a non-shareholder.
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An attendance sheet is drawn up, in accordance with the law.
The ordinary general meeting of the shareholders, upon first
convening notice, may transact business validly only if the shareholders
present, or represented by proxy, hold at least one fourth of the voting shares.
Upon second convening notice, it may transact business validly whatever the
number of shareholders present or represented by proxy.
The resolutions shall be carried out at the majority vote of the
shareholders, present or represented.
The extraordinary general meetings of the shareholders, upon
first convening notice, may transact business validly only if the shareholders
present, or represented by proxy, hold at least one third of the voting shares.
Upon second convening notice, it may transact business validly only if the
shareholders present or represented by proxy hold at least one fourth of the
voting shares.
The resolutions shall be carried out at a two third majority vote
of the shareholders, present or represented.
The copies or abstracts of the minutes of the meetings are
certified by the president of the board of directors, by a director acting as
general manager, or by the secretary of the meeting.
The ordinary and extraordinary meetings of shareholders exercise
their respective powers as provided by law.
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TITLE V
RESULTS OF THE COMPANY
ARTICLE 20 - FINANCIAL YEAR
Each financial year is of one year beginning on 1st July and
ending on 30th June.
ARTICLE 21 - PROFITS - LEGAL RESERVE FUNDS
Out of the profit of a financial year, reduced by prior losses if
any, an amount equal to at least 5 % thereof is first deducted in order to form
the legal reserve fund provided by law. This deduction is no longer required
when the legal reserve fund amounts to one tenth of the capital of the company.
Distributable profit is the profit of a financial year, reduced
by prior losses and by the deduction provided for in the preceding paragraph and
increased by the profits carried forward.
ARTICLE 22 - DIVIDENDS
If there results a distributable profit from the accounts of the
financial year, as approved by the general meeting, the general meeting may
decide to allocate it to one or several reserve funds, the appropriation or use
of which it shall determine, or to carry it forward or to distribute it as
dividends.
Furthermore, after having established the existence of reserves
which it may dispose of, the general meeting may decide the distribution of
amounts paid out of such reserves. In such case, the payments shall be made.
However, the dividends shall be set off by priority on the distributable profit
of the financial year.
The general meeting shall determine the terms of payment of
dividends ; failing such determination, these terms shall be determined by the
board of directors.
However, the dividends must be declared payable no more than nine
months following the close of the financial year.
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The general meeting deciding upon the accounts of a financial
year will be entitled to grant to each shareholder, for all or part of the
distributed dividends, an option between payment in cash or in shares.
Similarly, should the ordinary general meeting resolve the
distribution of interim dividends pursuant to article 347 of the law of 24th
July 1966, it will be entitled to grant to each shareholder an interim dividend
and, for whole or part of the said interim dividend, an option between payment
in cash or in shares.
The offer of payment in shares, the price and the conditions as
to the issuing of such shares, together with the request for payment in shares
and the conditions of the completion of the capital increase will be governed by
the law and regulations.
When a balance sheet, drawn up during, or at the end of the
financial year, and certified by the supervisory auditor, shows that the
company, since the close of the preceding financial year, after having made the
necessary depreciations and provisions and after deduction of the prior losses,
if any, as well as of the amounts which are to be allocated to the reserve fund
provided by law or by the by-laws, has made profits, the board of directors may
resolve the distribution of interim dividends prior to the approval of the
accounts of the financial year, and may determine the amount thereof and the
date of such distribution. The amount of such interim dividends cannot exceed
the amount of the profits as defined in this paragraph. In this case, the option
described in the preceding paragraph shall not be available.
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TITLE VI
DISSOLUTION - LIQUIDATION
ARTICLE 23 - PREMATURE DISSOLUTION
An extraordinary general meeting may at any time declare the
dissolution of the company before the expiration of its stated duration under
the present Memorandum and Articles of Association.
ARTICLE 24 - LOSS OF ONE HALF OF THE CAPITAL OF THE COMPANY
If, as a consequence of losses showed by the company's accounts,
the net assets (capitaux propres) of the company are reduced below one half of
the capital of the company, the board of directors must, within four months from
the approval of the accounts showing this loss, convene an extraordinary general
meeting of shareholders in order to decide whether the company ought to be
dissolved before its statutory term.
If the dissolution is not declared, the capital must, at the
latest at the end of the second fiscal year following the fiscal year during
which the losses were established and subject to the legal provisions concerning
the minimum capital of societes anonymes, be reduced by an amount at least equal
to the losses which could not be charged on reserves, if during that period the
net assets have not been restored up to an amount at least equal to one half of
the capital.
In the absence of a meeting of shareholders, or in the case where
the company has not been able to validly act, any interested party may institute
legal proceedings to dissolve the company.
ARTICLE 25 - EFFECT OF THE DISSOLUTION OF THE COMPANY
The company is in liquidation as soon as it is dissolved for any
reason whatsoever. It continues to exist as a legal entity for the needs of this
liquidation until the liquidation is completed.
During the period of the liquidation, the general meeting shall
retain the same powers it exercised during the life of the company.
The shares shall remain transferable until the completion of the
liquidation proceedings.
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The dissolution of the company is only valid vis a vis third
parties as from the date at which it is published at the register of commerce.
ARTICLE 26 - APPOINTMENT OF LIQUIDATORS - POWERS
Upon the expiration of the term of existence of the company or in
the case of its premature dissolution, the meeting of the shareholders shall
decide the method of liquidation and appoint one or several liquidators whose
powers it will determine. The liquidator(s) will exercise their duties according
to the law. The appointment of the liquidator(s) terminates the offices of the
directors.
ARTICLE 27 - LIQUIDATION - CLOSING
After payment of the liabilities, the remaining assets shall be
used first for the payment to the shareholders of the amount paid for their
shares and not amortized.
The balance, if any, shall be divided among all the shareholders.
The shareholders shall be convened at the end of the liquidation
in order to decide on the final accounts, to discharge the liquidator from
liability for his acts of management and the performance of his office, and to
take notice of the closing of the liquidation.
The closing of the liquidation is published as provided by law.
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TITLE VII
NOTIFICATIONS
ARTICLE 28 - NOTIFICATIONS
All notifications provided for in the present Memorandum and
Articles of Associations shall be made either by registered mail with
acknowledgment of receipt or by process server. Simultaneously a copy of the
notification shall be sent to the recipient by ordinary mail.
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