Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AGILE SOFTWARE CORPORATION
I, Thomas P. Shanahan, Chief Financial Officer of Agile Software
Corporation, a Delaware corporation (the "Corporation"), hereby certify:
1. That the Corporation's Board of Directors has duly adopted the
following resolutions:
RESOLVED, that Article First of the Certificate of Incorporation is hereby
amended to read in full as follows:
FIRST: The name of this corporation is Agile Software Corporation
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Delaware (hereinafter sometimes referred to as the "Corporation").
2. That the proposed amendment has been duly adopted by the
Corporation's Board of Directors and sole stockholder in accordance with the
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of Certificate of Incorporation to be signed by a duly authorized
officer on this 30th day of June, 1999.
AGILE SOFTWARE CORPORATION
By: /s/ Thomas P. Shanahan
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Thomas P. Shanahan, Chief Financial Officer
CERTIFICATE OF INCORPORATION
OF
AGILE SOFTWARE CORPORATION
FIRST: The name of this corporation is Agile Software Corporation
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(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the
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State of Delaware is Incorporating Services, Ltd., 15 East North Street, in the
City of Dover, County of Kent. The name of the registered agent at that address
is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
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activity for which a corporation may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
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have authority to issue is One Thousand (1,000) shares of Common Stock, par
value $0.001 per share (the "Common Stock").
FIFTH: The name and mailing address of the incorporator is:
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Lynn Rooke
c/o Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, CA 94031
SIXTH: The business and affairs of the Corporation shall be managed by or
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under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by Statute or by this Certificate of
Incorporation or the Bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation. Election of directors need not be by
written ballot unless the Bylaws so provide.
SEVENTH: The Board of Directors is authorized to make, adopt, amend, alter
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or repeal the Bylaws of the Corporation. The stockholders shall also have power
to make, adopt, amend, alter or repeal the Bylaws of the Corporation.
EIGHTH: This Corporation reserves the right to amend or repeal any of the
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provisions contained in this Certificate of Incorporation in any manner now or
hereafter permitted by law, and the rights of the stockholders of this
Corporation are granted subject to this reservation.
NINTH: To the fullest extent permitted by the Delaware General Corporation
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Law, a director of this Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any repeal or modification of the foregoing provisions of this Article
NINTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware, do make, file and record
this Certificate of Incorporation, do certify that the facts herein stated are
true, and accordingly, have hereto set my hand this 23rd day of June, 1999.
/s/ Lynn Rooke
RESTATED CERTIFICATE OF INCORPORATION
OF
DELAWARE AGILE SOFTWARE CORPORATION
(Pursuant to Sections 242 and 245 of the General Corporation Law of the State
of Delaware)
Delaware Agile Software Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware on June 22, 1999,
(the "Corporation") certifies as follows:
1. The Corporation's Restated Certificate of Incorporation was duly adopted
by the Board of Directors and sole stockholder by written consent in accordance
with Sections 242 and 245 of the General Corporation Law.
2. The Corporation's Certificate of Incorporation is restated to read in
full as follows:
FIRST: The name of the Corporation is Delaware Agile Software
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Corporation.
SECOND: The address of the registered office of the Corporation in
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the State of Delaware is Incorporating Services, Ltd., 15 East
North Street, in the City of Dover, County of Kent. The name of
the registered agent at that address is Incorporating
Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act
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or activity for which a corporation may be organized under the
General Corporation Law of Delaware.
FOURTH:
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A. The Corporation is authorized to issue a total of 131,175,556
shares of stock in two classes designated respectively
"Preferred Stock" and "Common Stock". The total number of
shares of all series of Preferred Stock that the Corporation
shall have the authority to issue is 31,175,556 and the
total number of shares of Common Stock that the Corporation
shall have the authority to issue is 100,000,000. All of the
authorized shares shall have a par value of $0.001.
B. The shares of Preferred Stock may be divided into such number
of series as the Board of Directors may determine. The Board of
Directors is authorized to determine and alter the rights,
preferences, privileges and restrictions granted to and imposed
upon the Preferred Stock or any series thereof with respect to
any wholly unissued series of Preferred Stock, and to fix the
number of shares of any such series of Preferred Stock. The
Board of Directors, within the limits and restrictions stated
in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series,
may increase or decrease (but not below the number of shares of
such series then outstanding) the number of shares of any
series subsequent to the issue of shares of that series.
FIFTH: The following provisions are inserted for the management of the
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business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers
of the Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by
statute or by this Certificate of Incorporation or the Bylaws
of the Corporation, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly underwritten
registered public offering (the "IPO"), any action required or
permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders. Prior to such sale,
unless otherwise provided by law, any action which may
otherwise be taken at any meeting of the stockholders may be
taken without a meeting and without prior notice, if a written
consent describing such actions is signed by the holders of
outstanding shares having not less than the minimum number of
votes which would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were
present and voted.
D. Special meetings of stockholders of the Corporation may be
called only (1) 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), (2) by the
President of the Corporation or (3) by the holders of not less
than ten percent (10%) of all of the shares entitled to cast
votes at the meeting.
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SIXTH:
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A. The number of directors shall initially be set at six (6) 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). Upon the closing of the IPO, the
directors shall be divided into three classes with the term of
office of the first class (Class I) to expire at the first
annual meeting of the stockholders following the IPO; the term
of office of the second class (Class II) to expire at the
second annual meeting of stockholders held following the IPO;
the term of office of the third class (Class III) to expire at
the third annual meeting of stockholders; and thereafter for
each such term to expire at each third succeeding annual
meeting of stockholders after such election. Subject to the
rights of the holders of any series of Preferred Stock then
outstanding, a vacancy resulting from the removal of a director
by the stockholders as provided in Article SIXTH, Section C
below may be filled at a special meeting of the stockholders
held for that purpose. 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.
B. 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 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,
and until their respective successors are elected, except in
the case of the death, resignation, or removal of any director.
No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, with or
without cause, but only by the affirmative vote of the holders
of at least a majority of the voting power of all of the then
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together
as a single class. Vacancies in the Board of Directors
resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the
stockholders as provided in Article SIXTH, Section A above.
Directors so chosen shall hold office for a term expiring at
the next annual meeting of stockholders at which the term of
office of
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the class to which they have been elected expires, and until
their respective successors are elected, except in the case of
the death, resignation, or removal of any director.
SEVENTH: The Board of Directors is expressly empowered to adopt,
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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 a majority 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). 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.
EIGHTH: A director of the Corporation shall not be personally liable
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to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the
liability of a director, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so
amended.
Any repeal or modification of the foregoing provisions of this
Article EIGHTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or
modification.
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NINTH: The Corporation reserves the right to amend or repeal any
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provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all
rights conferred upon stockholders are granted subject to this
reservation; provided, however, that, notwithstanding any other
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provision of this Certificate of Incorporation or any provision
of law which might otherwise permit a lesser vote or no vote,
but in addition to any vote of the holders of any class or
series of the stock of this Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the
holders of at least 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, shall be required to amend or
repeal this Article NINTH, Article FIFTH, Article SIXTH,
Article SEVENTH or Article EIGHTH.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate to be signed by a duly authorized officer on this ____ day of
______, 1999.
DELAWARE AGILE SOFTWARE
CORPORATION
By:
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Thomas P. Shanahan, Chief Financial
Officer, and Secretary
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