EXHIBIT 3.3
BYLAWS
OF
AGILE SOFTWARE CORPORATION
ARTICLE I - OFFICES
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Section 1. The principal executive offices of AGILE SOFTWARE CORPORATION
(the "Corporation") shall be at such place inside or outside the State of
California as the Board of Directors may determine from time to time.
Section 2. The Corporation may also have offices at such other places as
the Board of Directors may from time to time designate, or as the business of
the Corporation may require.
ARTICLE II- SHAREHOLDERS' MEETINGS
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Section 1. Annual Meetings. The annual meeting of the shareholders
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of the Corporation 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 and at such time as may be fixed
from time to time by the Board of Directors and stated in the notice of the
meeting. If the annual meeting of the shareholders be not held as herein
prescribed, the election of directors may be held at any meeting thereafter
called pursuant to these Bylaws.
Section 2. Special Meetings. Special meetings of the shareholders, for
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any purpose whatsoever, unless otherwise prescribed by statute, may be called at
any time by
the Chairman of the Board, the President, or by the Board of Directors, or by
one or more shareholders holding not less than ten percent (10%) of the voting
power of the Corporation.
Section 3. Place. All meetings of the shareholders shall be at any
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place within or without the State of California designated either by the Board
of Directors or by written consent of the holders of a majority of the shares
entitled to vote thereat, given either before or after the meeting. In the
absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the Corporation.
Section 4. Notice. Notice of meetings of the shareholders of the
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Corporation shall be given in writing to each shareholder entitled to vote,
either personally or by first-class mail (unless the Corporation has 500 or more
shareholders determined as provided by the California Corporations Code on the
record date for the meeting, in which case notice may be sent by third-class
mail) or other means of written communication, charges prepaid, addressed to the
shareholder at his address appearing on the books of the Corporation or given by
the shareholder to the Corporation for the purpose of notice. Notice of any such
meeting of shareholders shall be sent to each shareholder entitled thereto not
fewer than ten (10) (or, if sent by third-class mail, 30) nor more than 60 days
before the meeting. Said notice shall state the place, date and hour of the
meeting and, (1) in the case of special meetings, the general nature of the
business to be transacted, and no other business may be transacted, or (2) in
the case of annual meetings, those matters that the Board of Directors, at the
time of the mailing of the notice, intends to present for action by the
shareholders, but subject to Section 601(f)
2.
of the California Corporations Code any proper matter may be presented at the
meeting for shareholder action, and (3) in the case of any meeting at which
directors are to be elected, the names of the nominees intended at the time of
the mailing of the notice to be presented by management for election.
Section 5. Adjourned Meetings. Any shareholders' meeting may be
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adjourned from time to time by the vote of the holders of a majority of the
voting shares present at the meeting either in person or by proxy. Notice of any
adjourned meeting need not be given unless a meeting is adjourned for forty-five
(45) days or more from the date set for the original meeting.
Section 6. Quorum. The presence in person or by proxy of the persons
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entitled to vote a majority of the shares entitled to vote at any meeting
constitutes a quorum for the transaction of business. The shareholders present
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
In the absence of a quorum, any meeting of shareholders may be adjourned
from time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat,- but no other
business may be transacted, except as provided above.
Section 7. Consent to Shareholder Action. Any action that may be taken at
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any meeting of shareholders may be taken without a meeting and without prior
notice,
3.
if a consent in writing, setting forth the action so taken, shall be signed by
the holders of outstanding shares 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,
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however, that (1) unless the consents of all shareholders entitled to vote have
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been solicited in writing, notice of any shareholder approval without a meeting
by less than unanimous written consent shall be given as required by the
California Corporations Code, and (2) directors may not be elected by written
consent except by unanimous written consent of all shares entitled to vote for
the election of directors.
Any written consent may be revoked by a writing received by the Secretary
of the Corporation prior to the time that written consents of the number of
shares required to authorize the proposed action have been filed with the
Secretary.
Section 8. Waiver of Notice. The transactions of any meeting of
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shareholders, however called and noticed, and whenever held, shall be as valid
as though had at a meeting duly held after regular call and notice, if a quorum
be present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting, or an approval of the minutes thereof. All such waivers, consents, or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 9. Voting. The voting at all meetings of shareholders need
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not be by ballot, but any qualified shareholder before the voting begins may
demand a stock
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vote whereupon such stock vote shall be taken by ballot, each of which shall
state the name of the shareholder voting and the number of shares voted by such
shareholder, and if such ballot be cast by a proxy, it shall also state the name
of such proxy.
At any meeting of the shareholders, every shareholder having the right to
vote shall be entitled to vote in person, or by proxy appointed in a writing
subscribed by such shareholder and bearing a date not more than eleven (11)
months prior to said meeting, unless the writing states that it is irrevocable
and satisfies Section 705(e) of the California Corporations Code, in which event
it is irrevocable for the period specified in said writing and said Section
705(e).
Section 10. Record Dates. In the event the Board of Directors fixes
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a day for the determination of shareholders of record entitled to vote as
provided in Section 1 of Article V of these Bylaws, then, subject to the
provisions of the General Corporation Law of the State of California, only
persons in whose name shares entitled to vote stand on the stock records of the
Corporation at the close of business on such day shall be entitled to vote.
If no record date is fixed:
The record date for determining shareholders entitled to notice of or to
vote at a meeting of shareholders shall be at the close of business on the
business day next preceding the day notice is given or, if notice is waived, at
the close of business on the business day next preceding the day on which the
meeting is held;
The record date for determining shareholders entitled to give consent to
corporate action in writing without a meeting, when no prior action by the Board
of
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Directors is necessary, shall be the day on which the first written consent is
given; and
The record date for determining shareholders for any other purpose shall be
at the close of business on the day on Which the Board of Directors adopts the
resolution relating thereto, or the sixtieth (60th) day prior to the date of
such other action, whichever is later.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting,
but the Board of Directors shall fix a new record date if the meeting is
adjourned for more than forty-five (45) days.
Section 11. Cumulative Voting for Election of Directors. Provided
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the candidate's name has been placed in nomination prior to the voting and one
or more shareholders has given notice at the meeting prior to the voting of the
shareholder's intent to cumulate the shareholder's votes, every shareholder
entitled to vote at any election for directors shall have the right to cumulate
such shareholder's votes and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of votes to which the
shareholder's shares are normally entitled, or distribute the shareholder's
votes on the same principle among as many candidates as the shareholder shall
think fit. The candidates receiving the highest number of votes of the shares
entitled to be voted for them up to the number of directors to be elected by
such shares are elected.
6.
ARTICLE III - BOARD OF DIRECTORS
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Section 1. Powers. Subject to any limitations in the Articles of
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Incorporation or these Bylaws and to any provision of the California
Corporations Code requiring shareholder authorization or approval for a
particular action, the business and affairs of the Corporation shall be managed
and all corporate powers shall be exercised by, or under the direction of, the
Board of Directors. The Board of Directors may delegate the management of the
day-to-day operation of the business of the Corporation to a management company
or other person provided that the business and affairs of the Corporation shall
be managed and all corporate powers shall be exercised, under the ultimate
direction of the Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of directors
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that shall constitute the whole board shall be not less than three (3) nor more
than five (5), the exact number of directors to be fixed from time to time
within such limit by a duly adopted resolution of the Board of Directors or
shareholders. The exact number of directors presently authorized shall be three
(3) until changed within the limits specified above by a duly adopted resolution
of the Board of Directors or shareholders. Directors need not be shareholders.
Directors shall hold office until the next annual meeting of shareholders
and until their respective successors are elected. If any such annual meeting is
not held, or the directors are not elected thereat, the directors may be elected
at any special meeting of shareholders held for that purpose.
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Section 3. Regular Meetings. A regular annual meeting of the Board
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of Directors shall be held without other notice than this Bylaw immediately
after, and at the same place as, the annual meeting of shareholders. The Board
of Directors may provide for other regular meetings from time to time by
resolution.
Section 4. Special Meetings. Special meetings of the Board of Directors
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may be called at any time by the Chairman of the Board, or the President or any
Vice President, or the Secretary or any two (2) directors. Written notice of the
time and place of all special meetings of the Board of Directors shall be
delivered personally or by telephone or telegraph to each director at least
forty-eight (48) hours before the meeting, or sent to each director by first-
class mail, postage prepaid, at least four (4) days before the meeting. Such
notice need not specify the purpose of the meeting. Notice of any meeting of the
Board of Directors need not be given to any director who signs a waiver of
notice, whether before or after the meeting, or who attends the meeting without
protesting prior thereto or at its commencement, the lack of notice to such
director.
Section 5. Place of Meetings. Meetings of the Board of Directors may
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be held at any place within or without the State of California, which has been
designated in the notice, or if not stated in the notice or there is no notice,
the principal executive office of the Corporation or as designated by the
resolution duly adopted by the Board of Directors.
Section 6. Participation by Telephone. Members of the Board of Directors
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may participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can
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hear one another.
Section 7. Quorum. A majority of the Board of Directors shall constitute
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a quorum at all meetings. In the absence of a quorum a majority of the directors
present may adjourn any meeting to another time and place. If a meeting is
adjourned for more than twenty-four (24) hours, notice of any adjournment to
another time or place shall be given prior to the time of the reconvened meeting
to. the directors who were not present at the time of adjournment.
Section 8. Action at Meeting. Every act or decision done or made by
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a majority of the directors present at a meeting duly held at which a quorum is
present is the act of the Board of Directors. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
Section 9. Waiver of Notice. The transactions of any meeting of the Board
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of Directors, however called and noticed or wherever held, are as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the meeting, or
an approval of the minutes thereof. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 10. Action Without Meeting. Any action required or permitted to
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be taken by the Board of Directors may be taken without a meeting, if all
members of the Board individually or collectively consent in writing to such
action. Such written
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consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
Section 11. Removal. The Board of Directors may declare vacant the
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office of a director who has been declared of unsound mind by an order of court
or who has been convicted of a felony.
The entire Board of Directors or any individual director may be removed
from office without cause by a vote of shareholders holding a majority of the
outstanding shares entitled to vote at an election of directors; provided,
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however, that unless the entire Board is removed, no individual director may be
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removed when the votes cast against removal, or not consenting in writing to
such removal, would be sufficient to elect such director if voted cumulatively
at an election at which the same total number of votes cast were cast (or, if
such action is taken by written consent, all shares entitled to vote were voted)
and the entire number of directors authorized at the time of the director's most
recent election were then being elected.
In the event an office of a director is so declared vacant or in case the
Board or any one or more directors be so removed, new directors may be elected
at the same meeting.
Section 12. Resignations. Any director may resign effective upon giving
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written notice to the Chairman of the Board, the President, the Secretary or the
Board of Directors of the Corporation, unless the notice specifies a later time
for the effectiveness of such resignation. If the resignation is effective at a
future time, a
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successor may be elected to take office when the resignation becomes effective.
Section 13. Vacancies. Except for a vacancy created by the removal
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of a director, all vacancies in the Board of Directors, whether caused by
resignation, death or otherwise, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until his successor is elected at an
annual, regular or special meeting of the shareholders. Vacancies created by the
removal of a director may be filled only by approval of the shareholders. The
shareholders may elect a director at any time to fill any vacancy not filled by
the directors. Any such election by written consent requires the consent of a
majority of the outstanding shares entitled to vote.
Section 14. Compensation. No stated salary shall be paid directors,
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as such, for their services, but, by resolution of the Board of Directors, a
fixed sum and expenses of attendance, if any, may be allowed for attendance at
each regular or special meeting of such Board; provided that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 15. Committees. The Board of Directors may, by resolution
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adopted by a majority of the authorized number of directors, designate one or
more committees, each consisting of two (2) or more directors, to serve at the
pleasure of the Board of Directors. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
member at any
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meeting of the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have all the authority of the Board of Directors in the
management of the business and affairs of the Corporation, except with respect
to (a) the approval of any action requiring shareholders' approval or approval
of the outstanding shares, (b) the filling of vacancies on the Board or any
committee, (c) the fixing of compensation of directors for serving on the Board
or a committee, (d) the adoption, amendment or repeal of Bylaws, (e) the
amendment or repeal of any resolution of the Board that by its express terms is
not so amendable or repealable, (f) a distribution to shareholders, except at a
rate or in a periodic amount or within a price range determined by the Board,
and (g) the appointment of other committees of the Board or the members thereof.
ARTICLE IV - OFFICERS
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Section 1. Number and Term. The officers of the Corporation shall be
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a Chairman of the Board, a President, one or more Vice Presidents, a Secretary
and a Chief Financial Officer, all of which shall be chosen by the Board of
Directors. In addition, the Board of Directors may appoint such other officers
as may be deemed expedient for the proper conduct of the business of the
Corporation, each of whom shall have such authority and perform such duties as
the Board of Directors may from time to time determine. The officers to be
appointed by the Board of Directors shall be chosen annually at the regular
meeting of the Board of Directors held after the annual meeting of shareholders
and shall serve at the pleasure of the Board of Directors. If officers are
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not chosen at such meeting of the Board of Directors, they shall be chosen as
soon thereafter as shall be convenient. Each officer shall hold office until his
successor shall have been duly chosen or until his removal or resignation.
Section 2. Inability to Act. In the case of absence or inability to
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act of any officer of the Corporation and of any person herein authorized to act
in his place, the Board of Directors may from time to time delegate the powers
or duties of such officer to any other officer, or any director or other person
whom it may select.
Section 3. Removal and Resignation. Any officer chosen by the Board
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of Directors may be removed at any time, with or without cause, by the
affirmative vote of a majority of all the members of the Board of Directors.
Any officer chosen by the Board of Directors may resign at any time by
giving written notice of said resignation to the Corporation. Unless a different
time is specified therein, such resignation shall be effective upon its receipt
by the Chairman of the Board, the President, the Secretary or the Board of
Directors.
Section 4. Vacancies. A vacancy in any office because of any cause
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may be filled by the Board of Directors for the unexpired portion of the term.
Section 5. Chairman of the Board. The Chairman of the Board shall
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preside at all meetings of the Board.
Section 6. President. The President shall be the general manager and
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chief executive officer of the Corporation, subject to the control of the Board
of Directors, and as such shall preside at all meetings of shareholders, shall
have general supervision of the affairs of the Corporation, shall sign or
countersign or authorize another officer to sign all certificates, contracts,
and other instruments of the
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Corporation as authorized by the Board of Directors, shall make reports to the
Board of Directors and shareholders, and shall perform all such other duties as
are incident to such office or are properly required by the Board of Directors.
Section 7. Vice President. In the absence of the President, or in
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the event of such officer's death, disability 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 at the time of their selection, or in the
absence of any such designation, then in the order of their selection, shall
perform the duties of President, and when so acting, shall have all the powers
and be subject to all restrictions upon the President. Each Vice President shall
have such powers and discharge such duties as may be assigned from time to time
by the President or by the Board of Directors.
Section 8. Secretary. The Secretary shall see that notices for all
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meetings are given in accordance with the provisions of these Bylaws and as
required by law, shall keep minutes of all meetings, shall have charge of the
seal and the corporate books, and shall make such reports and perform such other
duties as are incident to such office, or as are properly required by the
President or by the Board of Directors.
The Assistant Secretary or the Assistant Secretaries, in the order of
their seniority, shall, in the absence or disability of the Secretary, or in the
event of such officer's refusal to act, perform the duties and exercise the
powers and discharge such duties as may be assigned from time to time by the
President or by the Board of Directors.
14.
Section 9. Chief Financial Officer. The Chief Financial Officer may
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also be designated by the alternate title of "Treasurer." The Chief Financial
Officer shall have custody of all moneys and securities of the Corporation and
shall keep regular books of account. Such officer shall disburse the funds of
the Corporation in payment of the just demands against the Corporation, or as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors from time to time as
may be required of such officer, an account of all transactions as Chief
Financial Officer and of the financial condition of the Corporation. Such
officer shall perform all duties incident to such office or that are properly
required by the President or by the Board of Directors.
The Assistant Treasurer or the Assistant Treasurers, in the order of
their seniority, shall, in the absence or disability of the Chief Financial
Officer, or in the event of such officer's refusal to act, perform the duties
and exercise the powers of the Chief Financial Officer, and shall have such
powers and discharge such duties as may be assigned from time to time by the
President or by the Board of Directors.
Section 10. Salaries. The salaries of the officers shall be fixed
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from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that such officer is also a
director of the Corporation.
Section 11. Officers Holding More than One Office. Any two or more
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offices may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity.
15.
Section 12. Approval of Loans to Officers. */ The Corporation may,
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upon the approval of the Board of Directors alone, make loans of money or
property to, or guarantee the obligations of, any officer of the Corporation or
its parent or subsidiary, whether or not a director, or adopt an employee
benefit plan or plans authorizing such loans or guaranties provided that (i) the
Board of Directors determines that such a loan or guaranty or plan may
reasonably be expected to benefit the Corporation, (ii) the Corporation has
outstanding shares held of record by 100 or more persons (determined as provided
in Section 605 of the California Corporations Code) on the date of approval by
the Board of Directors, and (iii) the approval of the Board of Directors is by a
vote sufficient without counting the vote of any interested director or
directors.
ARTICLE V - MISCELLANEOUS
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Section 1. Record Date and Closing of Stock Books. The Board of
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Directors may fix a time in the future as a record date for the determination of
the shareholders entitled to notice of and to vote at any meeting of
shareholders or entitled to receive payment of any dividend or distribution, or
any allotment of rights, or to exercise rights in respect to any other lawful
action. The record date so fixed shall not be more than sixty (60) nor less than
ten (10) days prior to the date of the meeting or event for the purposes of
which it is fixed. When a record date is so fixed, only shareholders of record
at the close of business on that date are entitled to notice of and to vote at
the meeting or to receive the dividend, distribution, or allotment of rights, or
__________________
*/ This section is effective only if it has been approved by the shareholders
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in accordance with Sections 315(b) and 152 of the California Corporations Code.
16.
to exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after the record date.
The Board of Directors may close the books of the Corporation against
transfers of shares during the whole or any part of a period of not more than
sixty (60) days prior to the date of a shareholders' meeting, the date when the
right to any dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion or exchange of shares.
Section 2. Certificates. Certificates of stock shall be issued in
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numerical order and each shareholder shall be entitled to a certificate signed
in the name of the Corporation by the Chairman of the Board or the President or
a Vice President, and the Chief Financial Officer, the Secretary or an Assistant
Secretary, certifying to the number of shares owned by such shareholder. Any or
all of the signatures on the certificate may be facsimile. Prior to the due
presentment for registration of transfer in the stock transfer book of the
Corporation, the registered owner shall be treated as the person exclusively
entitled to vote, to receive notifications and otherwise to exercise all the
rights and powers of an owner, except as expressly provided otherwise by the
laws of the State of California.
Section 3. Representation of Shares in Other Corporations. Shares of
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other corporations standing in the name of this Corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
Corporation by the Chairman of the Board, the President or any Vice President
and the Chief Financial Officer or the Secretary or an Assistant Secretary.
17.
Section 4. Fiscal Year. The fiscal year of the Corporation shall end
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on the 31st day of December.
Section 5. Annual Reports. The Annual Report to shareholders,
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described in the California Corporations Code, is expressly waived and dispensed
with.
Section 6. Amendments. Bylaws may be adopted, amended, or repealed
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by the vote or the written consent of shareholders entitled to exercise a
majority of the voting power of the Corporation. Subject to the right of
shareholders to adopt, amend, or repeal Bylaws, Bylaws may be adopted, amended,
or repealed by the Board of Directors, except that a Bylaw amendment thereof
changing the authorized number of directors may be adopted by the Board of
Directors only if these Bylaws permit an indefinite number of directors and the
Bylaw or amendment thereof adopted by the Board of Directors changes the
authorized number of directors within the limits specified in these Bylaws.
Section 7. Indemnification of Corporate Agents. The Corporation
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shall indemnify each of its agents against expenses, judgments, fines,
settlements and other amounts, actually and reasonably incurred by such person
by reason of such person's having been made or having threatened to be made a
party to a proceeding to the fullest extent permissible under the California
Corporations Code and the Corporation shall advance the expenses reasonably
expected to be incurred by such agent in defending any such proceeding upon
receipt of the undertaking required by subdivision (f) of Section 317 of the
California Corporations Code. The terms "agent", "proceeding" and "expenses"
made in this Section 7 shall have the same meaning as such terms in said Section
317.
18.
CERTIFICATE OF ADOPTION
OF BYLAWS
OF
AGILE SOFTWARE CORPORATION
The undersigned, Thomas P. Shanahan, hereby certifies that he is the
duly elected and acting Secretary of Agile Software Corporation, a California
corporation (the "Corporation"), and that the Bylaws attached hereto were duly
adopted by an Action by Unanimous Written Consent in Lieu of the Organizational
Meeting by the Sole Director of the Corporation effective as of March 13/th/,
1995.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed his name
this 13/th/ day of March, 1995.
/s/ Thomas P. Shanahan
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Thomas P. Shanahan, Secretary