EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
FAIR ISAAC CORPORATION
Fair Isaac Corporation, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
FIRST: The corporation was originally incorporated under the name Fair,
Isaac and Company, Incorporated. The date of filing of its original Certificate
of Incorporation with the Secretary of State was May 15, 1987.
SECOND: This Restated Certificate of Incorporation of the corporation
was duly adopted by the Board of Directors of the corporation in accordance with
the provisions of Section 245 of the General Corporation Law of the State of
Delaware. This Restated Certificate of Incorporation of the corporation only
restates and integrates and does not further amend the provisions of the
corporation's Restated Certificate of Incorporation as heretofore amended or
supplemented, and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
THIRD: The text of the Restated Certificate of Incorporation as
heretofore amended or supplemented is hereby restated to read as herein set
forth in full:
1. The name of the corporation is Fair Isaac Corporation.
2. The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle 19801.
The name of its registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the Delaware General Corporation Law.
4. (a) The total number of shares of all classes of stock
which the corporation shall have authority to issue is one hundred one million
(101,000,000), of which one million (1,000,000) shares shall be Preferred Stock
of the par value of $.01 per share, and one hundred million (100,000,000) shares
shall be Common Stock of the par value of $.01 per share. The number of
authorized shares of Common Stock or Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) if the
increase or decrease is approved by the holders of a majority of the shares of
Common Stock, without the vote of the holders of the shares of Preferred Stock
or any series thereof, unless any such Preferred holders are entitled to vote
thereon pursuant to the provisions established by the Board of Directors in the
resolution or resolutions providing for the issue of such Preferred Stock, and
if such holders of such Preferred Stock are so entitled to vote thereon, then,
except as may otherwise be set forth in
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this Certificate of Incorporation, the only stockholder approval required shall
be that of a majority of the combined voting power of the Common and Preferred
Stock so entitled to vote.
(b) The Board of Directors is expressly authorized to
provide for the issue, in one or more series, of all or any shares of the
Preferred Stock and, in the resolution or resolutions providing for such issue,
to establish for each such series the number of its shares, which may thereafter
(unless forbidden in the resolution or resolutions providing for such issue) be
increased or decreased (but not below the number of shares of the series then
outstanding) pursuant to a subsequent resolution of the Board of Directors, the
voting powers, full or limited, of the shares of such series, or that such
shares shall have no voting powers, and the designations, preferences and
relative, participating, optional or other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof. In
furtherance of the foregoing authority and not in limitation of it, the Board of
Directors is expressly authorized, in the resolution or resolutions providing
for the issue of a series of Preferred Stock, to make the shares of such series,
without the consent of the holders of such shares, convertible into or
exchangeable for shares of another class or classes of stock of the corporation
or any series thereof, or redeemable for cash, property or rights, including
securities, all on such conditions and on such terms as may be stated in such
resolution or resolutions, and to make any of the voting powers, designations,
preferences, rights and qualifications, limitations or restrictions of the
shares of the series dependent upon facts ascertainable outside this Certificate
of Incorporation.
The resolution adopted by the Board of Directors setting forth
the designation and amount of Series A Participating Preferred Stock and the
powers, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations or restrictions thereof is set forth
in Exhibit A hereto and specifically incorporated herein.
(c) Holders of shares of Common Stock shall be entitled
to receive such dividends or distributions as are lawfully declared on the
Common Stock; to have notice of any authorized meeting of stockholders; to one
vote for each share of Common Stock on all matters that are properly submitted
to a vote of such stockholders; and, upon dissolution of the corporation, to
share ratably in the assets thereof that may be available for distribution after
satisfaction of creditors and of the preferences, if any, of any shares of
Preferred Stock.
5. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the by-laws of the corporation.
6. (a) A director of the corporation shall not be liable 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 involve 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.
(b) Each director or officer of the corporation who was
or is made a party or is threatened to be made a party to or is in any way
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (including without
limitation any action, suit or proceeding brought by or in the right of the
corporation to procure a judgment in its favor) (hereinafter a "proceeding"),
including any appeal
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therefrom, by reason of the fact that he or she, or a person of whom he or she
is the legal representative, is or was a director or officer of the corporation
or of a subsidiary of the corporation, or is or was serving at the request of
the corporation as a director or officer of another entity or enterprise, or was
a director or officer of a foreign or domestic corporation which was a
predecessor corporation of the corporation or of another entity or enterprise at
the request of such predecessor corporation, or by reason of anything done or
not done in such capacity, shall be indemnified and held harmless by the
corporation, and the corporation shall advance all expenses incurred by any such
person in connection with any such proceeding prior to its final determination,
to the fullest extent authorized by the Delaware General Corporation Law. In any
proceeding against the corporation to enforce these rights, such person shall be
presumed to be entitled to indemnification and the corporation shall have the
burden of proof to overcome that presumption. The rights to indemnification and
advancement of expenses conferred by this Article shall be presumed to have been
relied upon by directors and officers of the corporation in serving or
continuing to serve the corporation and shall be enforceable as contract rights.
Said rights shall not be exclusive of any other rights to which those seeking
indemnification may otherwise be entitled. The corporation may, upon written
demand presented by a director or officer of the corporation or of a subsidiary
of the corporation, or by a person serving at the request of the corporation as
a director or officer of another entity or enterprise, enter into contracts to
provide such persons with specific rights to indemnification, which contracts
may confer rights and protections to the maximum extent permitted by the
Delaware General Corporation Law. The corporation may create trust funds, grant
security interests, obtain letters of credit, or use other means to ensure
payment of such amounts as may be necessary to perform the obligations provided
for in this Article 6 or in any such contract.
(c) Any repeal or modification of the foregoing
provisions of this Article 6, including without limitation any contractual
rights arising under or authorized by it, by the stockholders of the corporation
shall not adversely affect any right or protection of a director or officer of
the corporation existing at the time of such repeal or modification.
(d) 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 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.
7. At all elections of the directors of the corporation, each
stockholder shall be entitled to one vote per share entitled to vote multiplied
by the number of directors to be elected, and the stockholder may cast all of
such votes for a single candidate or may distribute them among the number of
directors to be voted for, or for any two or more of them as the stockholder may
see fit; provided, however, that no stockholder shall be entitled so to cumulate
votes unless such candidate or candidates' names have been placed in nomination
prior to the voting and the stockholder has given notice at the meeting prior to
the voting of the stockholder's intention to cumulate votes. If any one
stockholder has given such notice, all stockholders may cumulate their votes for
candidates in nomination.
IN WITNESS WHEREOF, the corporation has caused this certificate to be
executed by its duly authorized officer on this 1st day of April, 2003.
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Exhibit A
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock of the Corporation be
and it hereby is created, and that the designation and amount thereof and the
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock," par value $0.01 per
share, and the number of shares constituting such series shall be Two Hundred
Thousand (200,000). Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Participating Preferred Stock to a number less
than that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Participating Preferred Stock with respect to dividends, the holders
of shares of Series A Participating Preferred Stock in preference to the holders
of shares of Common Stock, par value $0.01 per share (the "Common Stock"), of
the Corporation and any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Participating Preferred Stock in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $25.00 or, (b) subject
to the provision for adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Participating
Preferred Stock. In the event the Corporation shall at any time after the close
of business on August 8, 2001 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares, by reclassification or otherwise, then in each such
case the amount to which holders of shares of Series A Participating Preferred
Stock were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
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(B) The Corporation shall declare a dividend or distribution on
the Series A Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $25.00 per share on
the Series A Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Participating Preferred Stock unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Participating Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
3. Voting Rights. The holders of shares of Series A Participating
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock into a greater number
of shares or (iii) combine the outstanding Common Stock into a smaller number of
shares, by reclassification or otherwise, then in each such case the number of
votes per share to which holders of shares of Series A Participating Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or by law, the holders of shares of Series A Participating
Preferred Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the Corporation.
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(C) (i) If at any time dividends on any Series A
Participating Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, the holders of the Series A Participating Preferred
Stock, voting as a separate series from all other series of Preferred Stock and
classes of capital stock, shall be entitled to elect two members of the Board of
Directors in addition to any Directors elected by any other series, class or
classes of securities and the authorized number of Directors will automatically
be increased by two. Promptly thereafter, the Board of Directors of this
Corporation shall, as soon as may be practicable, call a special meeting of
holders of Series A Participating Preferred Stock for the purpose of electing
such members of the Board of Directors. Said special meeting shall in any event
be held within 45 days of the occurrence of such arrearage.
(ii) During any period when the holders of Series A
Participating Preferred Stock, voting as a separate series, shall be entitled
and shall have exercised their right to elect two Directors, then and during
such time as such right continues (a) the then authorized number of Directors
shall remain increased by two, and the holders of Series A Participating
Preferred Stock, voting as a separate series, shall remain entitled to elect the
additional Directors so provided for, and (b) each such additional Director
shall not be a member of any existing class of the Board of Directors, but shall
serve until the next annual meeting of stockholders for the election of
Directors, or until his or her successor shall be elected and shall qualify, or
until his or her right to hold such office terminates pursuant to the provisions
of this Section 3(C).
(iii) A Director elected pursuant to the terms hereof may
be removed with or without cause by the holders of Series A Participating
Preferred Stock entitled to vote in an election of such Director.
(iv) If, during any interval between annual meetings of
stockholders for the election of Directors and while the holders of Series A
Participating Preferred Stock shall be entitled to elect two Directors, there
are fewer than two such Directors in office by reason of resignation, death or
removal, then, promptly thereafter, the Board of Directors shall call a special
meeting of the holders of Series A Participating Preferred Stock for the purpose
of filling such vacancy(ies) and such vacancy(ies) shall be filled at such
special meeting. Such special meeting shall in any event be held within 45 days
of the occurrence of any such vacancy(ies).
(v) At such time as the arrearage is fully cured, and all
dividends accumulated and unpaid on any shares of Series A Participating
Preferred Stock outstanding are paid, and, in addition thereto, at least one
regular dividend has been paid subsequent to curing such arrearage, the term of
office of any Director elected pursuant to this Section 3(C), or his or her
successor, shall automatically terminate, and the authorized number of Directors
shall automatically decrease by two, and the rights of the holders of the shares
of the Series A Participating Preferred Stock to vote as provided in this
Section 3(C) shall cease, subject to renewal from time to time upon the same
terms and conditions.
(D) Except as set forth herein or as otherwise provided by law,
holders of Series A Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock and any other capital stock of the
Corporation having general voting rights as set forth herein) for taking any
corporate action.
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4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock except dividends paid ratably on the Series A Participating
Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Participating Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Participating Preferred Stock or any shares of stock ranking
on a parity with the Series A Participating Preferred Stock except in accordance
with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
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6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Participating Preferred Stock
shall have received per share, the greater of $1,000.00 or 1,000 times the
payment made per share of Common Stock, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment (the "Series A Liquidation Preference"). Following the payment
of the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Participating
Preferred Stock unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
1,000 (as appropriately adjusted as set forth in subparagraph (C) below to
reflect such events as stock splits, stock dividends and recapitalization with
respect to the Common Stock) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of
Series A Participating Preferred Stock and Common Stock, respectively, holders
of Series A Participating Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of the remaining assets to
be distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series A Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
following payment in full of all liquidation preferences of all shares senior to
Common Stock (including the Series A Participating Preferred Stock), there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then the remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, by
reclassification or otherwise, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
stock, securities, cash or any
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other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A
Participating Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that are outstanding immediately prior to such
event.
8. Redemption. The shares of Series A Participating Preferred
Stock shall not be redeemable.
9. Ranking. The Series A Participating Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
10. Amendment. The Certificate of Incorporation and the By-Laws of
the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Participating Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of at least 66-2/3% of the outstanding
shares of Series A Participating Preferred Stock voting separately as a class.
11. Fractional Shares. Series A Participating Preferred Stock may
be issued in fractions of a share which shall entitle the holder, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Participating Preferred Stock.
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