EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
SS&C Technologies, Inc.
(a Delaware corporation)
SS&C Technologies, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
A. The name of the Corporation is SS&C Technologies, Inc. SS&C
Technologies, Inc. was originally incorporated under the same name, and the
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on March 29, 1996.
B. This Restated Certificate of Incorporation was duly adopted by written
consent of the board of directors in accordance with the applicable provisions
of Sections 141 and 245 of the General Corporation Law of the State of Delaware.
C. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Corporation's Certificate of
Incorporation as theretofore amended or supplemented, and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
D. The Certificate of Incorporation is hereby restated in its entirety so
that the same shall read as follows:
FIRST : The name of the corporation (hereinafter sometimes referred to as
the "Corporation") is: SS&C Technologies, Inc.
SECOND : The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
THIRD : The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
FOURTH : The aggregate number of all classes of shares which the
Corporation shall have the authority to issue is ten thousand (10,000) shares of
common stock, par value of $0.01
per share (the "Common Stock").
FIFTH : The rights, preferences, privileges and restrictions granted or
imposed upon the Common Stock are as follows;
(a) Dividends. The holders of the Common Stock shall be entitled to
the payment of dividends when and as declared by the board of directors of the
Corporation (the "Board") out of funds legally available therefore and to
receive other distributions from the Corporation, including distributions of
contributed capital, when and as declared by the Board. Any dividends declared
by the Board to the holders of the then outstanding Common Stock shall be paid
to the holders thereof pro rata in accordance with the number of shares of
Common Stock held by each such holder as of the record date of such dividend.
(b) Liquidation, Dissolution or Winding Up. Subject to the rights of
any holders of any class of preferred stock which may from time-to-time come
into existence and which are then outstanding, in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the foods and assets of the Corporation that may be legally distributed to the
Corporation's stockholders shall be distributed among the holders of the then
outstanding Common Stock pro rata, in accordance with the number of shares of
Common Stock held by each such holder.
(c) Voting. Each holder of Common Stock shall have full voting
rights and powers equal to the voting rights and powers of each other holder of
Common Stock and shall be entitled to one (1) vote for each share of Common
Stock held by such holder. Each holder of Common Stock shall be entitled to
notice of any stockholders' meeting in accordance with the bylaws of the
Corporation (as in effect at the time in question) and applicable law, on all
matters put to a vote of the stockholders of the Corporation.
SIXTH : [Intentionally left blank.]
SEVENTH : In furtherance and not in limitation of the power conferred by
statute, the Board is expressly authorized to make, alter or repeal the bylaws
of the Corporation subject to any limitations contained therein.
EIGHTH : No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for the 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 DGCL, or (iv) for any transactions from
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which the director derived an improper personal benefit.
NINTH : 1. Actions, Suits and Proceedings Other than by or in the Right of
the Corporation. The Corporation shall indemnify each person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the Corporation), by reason of the fact that he is or was, or has
agreed to become, a director or officer of the Corporation, or is or was
serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan) (all such persons being referred to
hereafter as an Indemnitee), or by reason of any action alleged to have
been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which be reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal action of proceeding, had reasonable cause to
believe that his conduct was unlawful. Notwithstanding anything to the
contrary in this Article, except as set forth in Section 7 below, the
Corporation shall not indemnify an Indemnitee seeking indemnification in
connection with a proceeding (or part thereof) initiated by the Indemnitee
unless the initiation thereof was approved by the Board. Notwithstanding
anything to the contrary in this Article, the Corporation shall not
indemnify an Indemnitee to the extent such Indemnitee is reimbursed from
the proceeds of insurance, and in the event the Corporation makes any
indemnification payments to an Indemnitee and such Indemnitee is
subsequently reimbursed from the proceeds of insurance, such Indemnitee
shall promptly refund such indemnification payments to the Corporation to
the extent of such insurance reimbursement.
2. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was, or has agreed to
become, a director or officer of the Corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a director,
officer or trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses (including
attorneys' fees) and, to the extent permitted by law, amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom,
if he acted in good faith and in a manner he
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reasonably believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery of Delaware shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses (including attorneys' fees) which the Court
of Chancery of Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding
the other provisions of this Article, to the extent that an Indemnitee has
been successful, on the merits or otherwise, in defense of any action,
suit or proceeding referred to in Sections 1 and 2 of this Article, or in
defense of any claim, issue or matter therein, or on appeal from any such
action, suit or proceeding, he shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by him or on
his behalf in connection therewith. Without limiting the foregoing, if any
action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition
being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee
was liable to the Corporation, (iii) a plea of guilty or nolo contendere
by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and (v) with respect to any
criminal proceeding, an adjudication that the Indemnitee had reasonable
cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with
respect thereto.
4. Notification and Defense of Claim. As a condition precedent to
his right to be indemnified, the Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or
investigation involving him for which indemnity will or could be sought.
With respect to any action suit, proceeding or investigation of which the
Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the defense
thereof at its own expense, with legal counsel reasonably acceptable to
the Indemnitee. After notice from the Corporation to the Indemnitee of its
election so to assume such defense, the Corporation shall not be liable to
the Indemnitee for any legal or other expenses subsequently incurred by
the Indemnitee in connection with such claim, other than as provided below
in this Section 4. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of
the defense thereof shall be at the expense of the Indemnitee unless (i)
the employment of counsel by the Indemnitee has been authorized by the
Corporation, (ii) counsel to the Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the
conduct of the defense of such action or (iii) the Corporation shall not
in fact have employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of counsel for the Indemnitee
shall be at the expense of the Corporation, except as otherwise expressly
provided by this Article. The Corporation shall not be entitled, without
the
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consent of the Indemnitee, to assume the defense of any claim brought by
or in the right of the Corporation or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in
clause (ii) above.
5. Advance of Expenses. Subject to the provisions of Section 6
below, in the event that the Corporation does not assume the defense
pursuant to Section 4 of this Article of any action, suit, proceeding or
investigation of which the Corporation receives notice under this Article,
any expenses (including attorneys' fees) incurred by an Indemnitee in
defending a civil or criminal action, suit, proceeding or investigation or
any appeal therefrom shall be paid by the Corporation in advance of the
final disposition of such matter; provided, however, that the payment of
such expenses incurred by an Indemnitee in advance of the final
disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so
advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Article. Such undertaking shall be accepted without
reference to the financial ability of the Indemnitee to make such
repayment.
6. Procedure for Indemnification. In order to obtain indemnification
or advancement of expenses pursuant to Sections 1, 2, 3 or 5 of this
Article, the Indemnitee shall submit to the Corporation a written request,
including in such request such documentation and information as is
reasonably available to the Indemnitee and is reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification or advancement of expenses. Any such indemnification or
advancement of expenses shall be made promptly, and in any event within 60
days after receipt by the Corporation of the written request of the
Indemnitee, unless with respect to requests under Sections 1, 2 or 5 the
Corporation determines within such 60-day period that the Indemnitee did
not meet the applicable standard of conduct set forth in Sections 1 or 2,
as the case may be. Such determination shall be made in each instance by
(a) a majority vote of the directors of the Corporation consisting of
persons who are not at that time parties to the action, suit or proceeding
in question ("disinterested directors"), whether or not a quorum, (b) a
majority vote of a quorum of the outstanding shares of stock of all
classes entitled to vote for directors, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to
the action, suit or proceeding in question, (c) independent legal counsel
(who may, to the extent permitted by law, be regular legal counsel to the
Corporation), or (d) a court of competent jurisdiction.
7. Remedies. The right to indemnification or advances as granted by
this Article shall be enforceable by the Indemnitee, in any court of
competent jurisdiction if the Corporation denies such request, in whole or
in part, or if no disposition thereof is made within the 60-day period
referred to above in Section 6. Unless otherwise required by law, the
burden of proving that the Indemnitee is not entitled to indemnification
or advancement of expenses under this Article shall be on the Corporation.
Neither the failure of the Corporation to have made a determination prior
to the commencement of such action that indemnification is proper in the
circumstances because the Indemnitee has met the applicable standard of
conduct, nor an actual determination of the
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Corporation pursuant to Section 6 that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of
conduct. The Indemnitee's expenses (including attorneys' fees) incurred in
connection with successfully establishing his right to indemnification, in
whole or in part, in any such proceeding shall also be indemnified by the
Corporation.
8. Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of the DGCL or any other applicable
laws shall affect or diminish in any way the rights of any Indemnitee to
indemnification under the provisions hereof with respect to any action,
suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of
such amendment, termination or repeal.
9. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights
to which an Indemnitee seeking indemnification or advancement of expenses
may be entitled under any law (common or statutory), agreement or vote of
stockholders or disinterested directors or otherwise, both as to any
action in his official capacity and as to action in any other capacity
while holding office for the Corporation, and shall continue as to an
Indemnitee who has ceased to be a director or officer, and shall inure to
the benefit of the estate, heirs, executors and administrators of the
Indemnitee. In addition to, and not in limitation of, any other provision
set forth in this Article, the Corporation is authorized, to the fullest
extent permitted by applicable law, to provide indemnification of (and
advancement of expenses to) agents of the Corporation (and any other
persons to which the DGCL permits the Corporation to provide
indemnification) through bylaw provisions, agreements with such agents or
other persons, by vote of stockholders or disinterested directors or
otherwise, in excess of the indemnification and advancement otherwise
permitted by Section 145 of the DGCL, subject only to limits created by
the DGCL and applicable decisional law, with respect to actions for breach
of duty to the Corporation, its stockholders, and others.
10. Partial Indemnification. If an Indemnitee is entitled under
provision of this Article to indemnification by the Corporation for some
or a portion of the expenses (including attorneys' fees), judgments, fines
or amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with any action, suit, proceeding or
investigation and any appeal therefrom but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify the
Indemnitee for the portion of such expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement to which the Indemnitee is
entitled.
11. Insurance. The Corporation may purchase and maintain insurance,
at its expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture trust or other enterprise (including any employee benefit plan)
against any expense, liability or loss incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such
expense,
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liability or loss under the DGCL.
12. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the
surviving corporation, the surviving corporation shall assume the
obligations of the Corporation under this Article with respect to any
action, suit, proceeding or investigation arising out of or relating to
any actions, transactions or facts occurring prior to the date of such
merger or consolidation.
13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative, including an
action by or in the right of the Corporation, to the fullest extent
permitted by any application portion of this Article that shall not have
been invalidated and to the fullest extent permitted by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and
Section 145(i) of the DGCL shall have the respective meanings assigned to
such terms in such Section 145(h) and Section 145(i).
15. Subsequent Legislature. If the DGCL is amended after adoption of
this Article to expand further the indemnification permitted to
Indemnities, then the Corporation shall indemnify such persons to the
fullest extent permitted by the DGCL as so amended.
TENTH : Election of directors need not be by written ballot unless the
bylaws of the Corporation shall so provide.
ELEVENTH : The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the DGCL. All rights conferred upon
stockholders herein are granted subject to this reservation.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by its duly authorized officer this 17th day of
May, 2006.
SS&C TECHNOLOGIES, INC.
By: /s/ William C. Stone
---------------------------------
Name: William C. Stone
Title: Chairman of the Board and
Chief Executive Officer
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