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S-1/A - FORM S-1/A - SS&C Technologies Holdings Inc | b78402a3sv1za.htm |
EX-3.1 - EX-3.1 - SS&C Technologies Holdings Inc | b78402a3exv3w1.htm |
EX-3.4 - EX-3.4 - SS&C Technologies Holdings Inc | b78402a3exv3w4.htm |
EX-5.1 - EX-5.1 - SS&C Technologies Holdings Inc | b78402a3exv5w1.htm |
EX-23.2 - EX-23.2 - SS&C Technologies Holdings Inc | b78402a3exv23w2.htm |
EX-10.35 - EX-10.35 - SS&C Technologies Holdings Inc | b78402a3exv10w35.htm |
EX-10.27 - EX-10.27 - SS&C Technologies Holdings Inc | b78402a3exv10w27.htm |
EX-10.26 - EX-10.26 - SS&C Technologies Holdings Inc | b78402a3exv10w26.htm |
Exhibit 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
SS&C TECHNOLOGIES HOLDINGS, INC.
(originally incorporated on July 26, 2005 under the name Sunshine Acquisition Corporation)
FIRST: The name of the Corporation is SS&C Technologies Holdings, Inc.
SECOND: The address of the Corporations registered office in the State of Delaware is 2711
Centerville Road, Suite 400 in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted or promoted by 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.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have
authority to issue is 110,000,000 shares, consisting of (i) 100,000,000 shares of Common Stock,
$0.01 par value per share (Common Stock), (ii) 5,000,000 shares of Class A Non-Voting Common
Stock, $0.01 par value per share (Class A Common Stock), and (iii) 5,000,000 shares of Preferred
Stock, $0.01 par value per share (Preferred Stock).
The following is a statement of the designations and the powers, privileges and rights, and
the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation.
A COMMON STOCK AND CLASS A COMMON STOCK.
1. General. Except as set forth in this Article FOURTH, Section A, the Common Stock
and the Class A Common Stock shall have the same rights, preferences, privileges and restrictions
and shall rank equally, share ratably and be identical in all respects as to all matters. The
voting, dividend and liquidation rights of the holders of the Common Stock and Class A Common Stock
are subject to and qualified by the rights of the holders of the Preferred Stock of any series as
may be designated by the Board of Directors upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock shall have voting rights at all meetings
of stockholders, each such holder being entitled to one vote for each share thereof held by such
holder; provided, however, that, except as otherwise required by law, holders of
Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation
(which, as used herein, shall mean the certificate of incorporation of the Corporation, as amended
from time to time, including the terms of any certificate of designations of any series of
Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either separately or together
as a class with the holders of one or more other such series, to vote thereon pursuant to this
Certificate of Incorporation. There shall be no cumulative voting. The Class A Common Stock shall
not be entitled to vote except as otherwise specifically required by law.
The number of authorized shares of each of the Common Stock and Class A Common Stock may be
increased or decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of the State of
Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock and Class A
Common Stock from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend or other rights of any then outstanding
Preferred Stock. Any dividends declared by the Board of Directors to the holders of the then
outstanding shares of Common Stock or Class A Common Stock, as applicable, shall be paid to the
holders thereof pro rata in accordance with the number of shares of Common Stock or Class A Common
Stock, as applicable, held by each such holder as of the record date of such dividend. The Common
Stock shall not be changed into a different number of shares of Common Stock or the same or
different number of shares of any class or classes of stock, whether by capital reorganization,
reclassification, recapitalization, stock dividend or otherwise, unless there is a simultaneous and
proportionate change to the outstanding shares of Class A Common Stock. The Class A Common Stock
shall not be changed into a different number of shares of Class A Common Stock or the same or
different number of shares of any class or classes of stock, whether by capital reorganization,
reclassification, recapitalization, stock dividend or otherwise, unless there is a simultaneous and
proportionate change to the outstanding shares of Common Stock.
4. Liquidation. Subject to any preferential or other rights of any then outstanding
Preferred Stock, upon the dissolution or liquidation of the Corporation, whether voluntary or
involuntary, holders of Common Stock and Class A Common Stock will be entitled to receive all
assets of the Corporation available for distribution to its stockholders, pro rata based on the
number of shares held by each such holder, treating for this purpose all shares of Class A Common
Stock as if they had been converted to Common Stock pursuant to the terms of the Certificate of
Incorporation immediately prior to such dissolution or liquidation.
5. Automatic Conversion of Class A Common Stock. Each share of Class A Common Stock
shall automatically be converted into one share of Common Stock upon (i) the expiration, with
respect to a holder of Class A Common Stock, of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act) such that such
holder could acquire shares of Common Stock issuable upon conversion of such holders shares of
Class A Common Stock in compliance with the HSR Act, (ii) any other event, the occurrence of which
results in the ability of a holder of Class A Common Stock to acquire the shares of Common Stock
issuable upon conversion of the Class A Common Stock pursuant to this Section 5 in compliance with
the HSR Act or (iii) the Sale (as defined below) of such share of Class A Common Stock. A Sale
shall mean any sale, assignment, transfer or other disposition, by operation of law or otherwise,
of a share of Class A Common Stock, or any interest therein, to a person or entity (x) that would
not be required to make a filing under the
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HSR Act to acquire an equal number of shares of Common Stock or (y) for which the waiting
period under the HSR Act applicable to such person acquiring an equal number of shares of Common
Stock has expired.
6. Mechanics of Conversion. In the event of an automatic conversion pursuant to
Section 5 above, the outstanding shares of Class A Common Stock shall be converted automatically
without any further action by the holder of such shares and whether or not the certificates
representing such shares are surrendered to the Corporation or its transfer agent;
provided, that the Corporation shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such automatic conversion unless either the certificates
evidencing such shares of Class A Common Stock are surrendered, duly endorsed, to the Corporation
or its transfer agent with written notice that such shares have been converted, or the holder
notifies the Corporation or its transfer agent that such certificates have been lost, stolen or
destroyed and executes an agreement satisfactory to the Corporation (but shall not be required to
provide a bond) to indemnify the Corporation from any loss incurred by it in connection with such
certificates.
No fractional shares of Common Stock shall be issued upon conversion of the Class A Common
Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the fair market value of a share of
Common Stock as determined in good faith by the Board of Directors. Any shares of Class A Common
Stock that are converted to Common Stock shall be retired and cancelled and may not be reissued as
shares of Class A Common Stock, and the Corporation may thereafter take such appropriate action
(without the need for stockholder action) as may be necessary to reduce the authorized number of
shares of Class A Common Stock accordingly.
B PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each of such series to
have such terms as stated or expressed herein and in the resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise provided by law.
Authority is hereby expressly granted to the Board of Directors from time to time to issue the
Preferred Stock in one or more series, and in connection with the creation of any such series, by
adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing
a certificate of designations relating thereto in accordance with the General Corporation Law of
the State of Delaware, to determine and fix the number of shares of such series and such voting
powers, full or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations or restrictions
thereof, including without limitation thereof, dividend rights, conversion rights, redemption
privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all
to the full extent now or hereafter permitted by the General Corporation Law of the State of
Delaware. Without limiting the generality of the foregoing, the resolutions providing for issuance
of any series of Preferred Stock may provide that such series shall be superior or rank equally or
be junior to any other series of Preferred Stock to the extent permitted by law.
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The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the holders of a majority
of the voting power of the capital stock of the Corporation entitled to vote thereon, voting as a
single class, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of
the State of Delaware.
FIFTH: Except as otherwise provided herein, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights
conferred upon stockholders herein are granted subject to this reservation.
SIXTH: In furtherance and not in limitation of the powers conferred upon it by the General
Corporation Law of the State of Delaware, and subject to the terms of any series of Preferred Stock
and the provisions of applicable law, the Board of Directors shall have the power to adopt, amend,
alter or repeal the Bylaws of the Corporation by the affirmative vote of a majority of the
directors present at any regular or special meeting of the Board of Directors at which a quorum is
present. The stockholders may not adopt, amend, alter or repeal the Bylaws of the Corporation, or
adopt any provision inconsistent therewith, unless such action is approved, in addition to any
other vote required by this Certificate of Incorporation, by the affirmative vote of the holders of
at least two-thirds of the votes that all the stockholders would be entitled to cast in any annual
election of directors or class of directors. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders of at least
two-thirds of the votes that all the stockholders would be entitled to cast in any annual election
of directors or class of directors shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Article SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of the State of Delaware
prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty,
no director of the Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision
of law imposing such liability. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such amendment or repeal. If
the General Corporation Law of the State of Delaware is amended to permit further elimination or
limitation of the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended.
EIGHTH: The Corporation shall provide indemnification as follows:
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 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 or she 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
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director, officer, partner, employee 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), liabilities, losses, judgments, fines, excise taxes and penalties arising under the Employee
Retirement Income Security Act of 1974, and amounts paid in settlement actually and reasonably
incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding and any
appeal therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee 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 or her 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 Indemnitee did not act in good faith and in a manner which
Indemnitee 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 reasonable cause to believe that his or
her conduct was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee who was or is a party to or 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 Indemnitee 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, partner, employee 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 or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except that no indemnification shall be made
under this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Corporation, unless, and only to the extent, that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses (including
attorneys fees) which the Court of Chancery of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding any other
provisions of this Article EIGHTH, 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 EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any
such action, suit or proceeding, Indemnitee shall be indemnified against all expenses (including
attorneys fees) actually and reasonably incurred by or on behalf of Indemnitee 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 Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee did
not act
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in good faith and in a manner he or she 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 Indemnitee had reasonable cause to believe his or her conduct was unlawful, Indemnitee shall
be considered for the purposes hereof to have been wholly successful with respect thereto.
4. Notification and Defense of Claim. Indemnitee shall notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or investigation involving such
Indemnitee for which indemnity will or could be sought; provided that the failure of any
Indemnitee to give notice as provided herein shall not relieve the Corporation of its obligations
under this Article EIGHTH unless the Corporation is materially prejudiced thereby. 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 Indemnitee. After notice
from the Corporation to Indemnitee of its election so to assume such defense, the Corporation shall
not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in
connection with such action, suit, proceeding or investigation, other than as provided below in
this Section 4. Indemnitee shall have the right to employ his or her own counsel in connection
with such action, suit, proceeding or investigation, 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 Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the
Corporation, (ii) counsel to Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between the Corporation and Indemnitee in
the conduct of the defense of such action, suit, proceeding or investigation or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of such action, suit,
proceeding or investigation, in each of which cases the fees and expenses of counsel for Indemnitee
shall be at the expense of the Corporation, except as otherwise expressly provided by this Article
EIGHTH. The Corporation shall not be entitled, without the consent of Indemnitee, to assume the
defense of any claim brought by or in the right of the Corporation or as to which counsel for
Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above. The
Corporation shall not be required to indemnify Indemnitee under this Article EIGHTH for any amounts
paid in settlement of any action, suit, proceeding or investigation effected without its written
consent. The Corporation shall not settle any action, suit, proceeding or investigation in any
manner which would impose any penalty or limitation on Indemnitee without Indemnitees written
consent. Neither the Corporation nor Indemnitee will unreasonably withhold or delay its consent to
any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of this Article
EIGHTH, in the event of any threatened or pending action, suit, proceeding or investigation of
which the Corporation receives notice under this Article EIGHTH, any expenses (including attorneys
fees) incurred by or on behalf of Indemnitee in defending an 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 or on behalf of Indemnitee in advance of the final disposition of such matter shall be made only
upon receipt of an undertaking by or on behalf of Indemnitee to repay all amounts so advanced in
the event that it shall ultimately be determined that Indemnitee is not entitled to be indemnified
by the Corporation as authorized in this Article EIGHTH. Such undertaking shall be accepted
without reference to the financial ability of Indemnitee to make such repayment.
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6. Procedure for Indemnification and Advancement of Expenses. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH,
an Indemnitee shall submit to the Corporation a written request. 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 Indemnitee, unless (i) the Corporation has assumed the
defense pursuant to Section 4 of this Article EIGHTH (and none of the circumstances described in
Section 4 of this Article EIGHTH that would nonetheless entitle the Indemnitee to indemnification
for the fees and expenses of separate counsel have occurred) or (ii) the Corporation determines
within such 60-day period that Indemnitee did not meet the applicable standard of conduct set forth
in this Article EIGHTH. Such determination, and any determination that advanced expenses must be
repaid to the Corporation, shall be made in each instance (a) by 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) by a committee of
disinterested directors designated by majority vote of disinterested directors, whether or not a
quorum, (c) if there are no disinterested directors, or if the disinterested directors so direct,
by independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to
the Corporation) in a written opinion, or (d) by the stockholders of the Corporation. Unless
otherwise required by the General Corporation Law of the State of Delaware, the burden of proving
that Indemnitee is not entitled to indemnification or advancement of expenses under this Article
EIGHTH shall be on the Corporation.
7. Remedies. The right to indemnification or advancement of expenses as granted by
this Article EIGHTH shall be enforceable by Indemnitee in any court of competent jurisdiction.
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 Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation that Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct. Indemnitees expenses
(including attorneys fees) reasonably incurred in connection with successfully establishing
Indemnitees right to indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation. Notwithstanding the foregoing, in any suit brought by Indemnitee
to enforce a right to indemnification hereunder it shall be a defense that the Indemnitee has not
met any applicable standard for indemnification set forth in the General Corporation Law of the
State of Delaware.
8. Limitations. Notwithstanding anything to the contrary in this Article EIGHTH,
except as set forth in Section 7 of this Article EIGHTH, the Corporation shall not indemnify an
Indemnitee pursuant to this Article EIGHTH in connection with a proceeding (or part thereof)
initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors
of the Corporation. Notwithstanding anything to the contrary in this Article EIGHTH, 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 indemnification payments to the Corporation to the extent of such
insurance reimbursement.
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9. Subsequent Amendment. No amendment, termination or repeal of this Article EIGHTH
or of the relevant provisions of the General Corporation Law of the State of Delaware or any other
applicable laws shall adversely 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.
10. Other Rights. The indemnification and advancement of expenses provided by this
Article EIGHTH 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 action in
Indemnitees 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 Indemnitee.
Nothing contained in this Article EIGHTH shall be deemed to prohibit, and the Corporation is
specifically authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this Article EIGHTH. In
addition, the Corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent to, or greater or less than,
those set forth in this Article EIGHTH.
11. Partial Indemnification. If an Indemnitee is entitled under any provision of this
Article EIGHTH 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 or on behalf of Indemnitee 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 Indemnitee for the portion of such expenses (including
attorneys fees), judgments, fines or amounts paid in settlement to which Indemnitee is entitled.
12. 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 or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the General Corporation Law of
the State of Delaware.
13. Savings Clause. If this Article EIGHTH 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 applicable portion of this Article EIGHTH that
shall not have been invalidated and to the fullest extent permitted by applicable law.
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14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i)
of the General Corporation Law of the State of Delaware shall have the respective meanings assigned
to such terms in such Section 145(h) and Section 145(i).
NINTH: This Article NINTH is inserted for the management of the business and for the conduct
of the affairs of the Corporation.
1. General Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
2. Number of Directors; Election of Directors. Subject to the rights of holders of
any series of Preferred Stock to elect directors, the number of directors of the Corporation shall
be established by the Board of Directors. Election of directors need not be by written ballot,
except as and to the extent provided in the Bylaws of the Corporation.
3. Classes of Directors. Subject to the rights of holders of any series of Preferred
Stock to elect directors, the Board of Directors shall be and is divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire Board of Directors.
The Board of Directors is authorized to assign members of the Board of Directors already in office
to Class I, Class II or Class III at the time such classification becomes effective.
4. Terms of Office. Subject to the rights of holders of any series of Preferred Stock
to elect directors, each director shall serve for a term ending on the date of the third annual
meeting of stockholders following the annual meeting of stockholders at which such director was
elected; provided that each director initially assigned to Class I shall serve for a term
expiring at the Corporations first annual meeting of stockholders held after the effectiveness of
this Restated Certificate of Incorporation; each director initially assigned to Class II shall
serve for a term expiring at the Corporations second annual meeting of stockholders held after the
effectiveness of this Restated Certificate of Incorporation; and each director initially assigned
to Class III shall serve for a term expiring at the Corporations third annual meeting of
stockholders held after the effectiveness of this Restated Certificate of Incorporation;
provided further, that the term of each director shall continue until the election
and qualification of his or her successor and be subject to his or her earlier death, resignation
or removal.
5. Quorum. The greater of (a) a majority of the directors at any time in office and
(b) one-third of the number of directors fixed pursuant to Section 2 of this Article NINTH shall
constitute a quorum of the Board of Directors. If at any meeting of the Board of Directors there
shall be less than such a quorum, a majority of the directors present may adjourn the meeting from
time to time without further notice other than announcement at the meeting, until a quorum shall be
present.
6. Action at Meeting. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be regarded as the act
of the Board of Directors unless a greater number is required by law or by this Certificate of
Incorporation.
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7. Removal. Subject to the rights of holders of any series of Preferred Stock,
directors of the Corporation may be removed only for cause and only by the affirmative vote of the
holders of at least two-thirds of the votes that all the stockholders would be entitled to cast in
any annual election of directors or class of directors; provided that for so long as any
stockholders of the Corporation have a contractual right with the Corporation to designate a
director of the Corporation, directors of the Corporation may be removed, with or without cause, by
the holders that have the right to remove such director by the affirmative vote of at least a
majority of the votes that all such stockholders would be entitled to cast in any annual election
of directors or class of directors.
8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any
vacancy or newly created directorship in the Board of Directors, however occurring, shall be filled
only by vote of a majority of the directors then in office, although less than a quorum, or by a
sole remaining director and shall not be filled by the stockholders; provided that for so
long as any stockholders of the Corporation have a contractual right with the Corporation to
designate a director of the Corporation, any vacancy in the Board of Directors, however occurring,
shall be filled by the holders that have the right to remove such director by the affirmative vote
of at least a majority of the votes that all such stockholders would be entitled to cast in any
annual election of directors or class of directors. A director elected to fill a vacancy shall
hold office until the next election of the class for which such director shall have been chosen,
subject to the election and qualification of a successor and to such directors earlier death,
resignation or removal.
9. Stockholder Nominations and Introduction of Business, Etc. Advance notice of
stockholder nominations for election of directors and other business to be brought by stockholders
before a meeting of stockholders shall be given in the manner provided by the Bylaws of the
Corporation.
10. Amendments to Article. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders of at least
two-thirds of the votes that all the stockholders would be entitled to cast in any annual election
of directors or class of directors shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Article NINTH.
TENTH: If at any time Carlyle Partners IV, L.P., CP IV Coinvestment, L.P. and their respective
affiliates (collectively, the Sponsors), any other stockholders that received their shares in a
transfer from any of the Sponsors (other than any transfer effected pursuant to (i) an effective
registration statement under the Securities Act of 1933, as amended (the Act), or (ii) Rule 144
promulgated under the Act) and their respective affiliates and William C. Stone collectively
beneficially own 50.0% or less of the outstanding shares of Common Stock, then any action required
or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be
taken only upon the vote of the stockholders at an annual or special meeting duly called and may
not be taken by written consent of the stockholders. The Bylaws may establish procedures
regulating the submission by stockholders of nominations and proposals for consideration at
meetings of stockholders of the Corporation. Notwithstanding any other provision of law, this
Certificate of Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of
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the holders of at least two-thirds of the votes that all the stockholders would be entitled to
cast in any annual election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at any
time only by the Board of Directors, the Chairman of the Board or the Chief Executive Officer, and
may not be called by any other person or persons. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose or purposes stated in the notice
of meeting. Notwithstanding any other provision of law, this Certificate of Incorporation or the
Bylaws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least two-thirds of the votes that all the
stockholders would be entitled to cast in any annual election of directors or class of directors
shall be required to amend or repeal, or to adopt any provision inconsistent with, this
Article ELEVENTH.
TWELFTH: To the fullest extent permitted by Section 122(17) of the General Corporation Law of
the State of Delaware and except as may be otherwise expressly agreed in writing by the Corporation
and any Sponsor, the Corporation, on behalf of itself and its subsidiaries, renounces any interest
or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to
participate in, business opportunities, that are from time to time presented to any of the Sponsors
or any of their respective officers, directors, agents, stockholders, members, partners, affiliates
and subsidiaries (other than the Corporation and its subsidiaries), even if the opportunity is one
that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the
ability or desire to pursue if granted the opportunity to do so, and no such person shall be liable
to the Corporation or any of its subsidiaries for breach of any fiduciary or other duty, as a
director or officer or otherwise, by reason of the fact that such person pursues or acquires such
business opportunity, directs such business opportunity to another person or fails to present such
business opportunity, or information regarding such business opportunity, to the Corporation or its
subsidiaries unless, in the case of any such person who is a director or officer of the
Corporation, such business opportunity is offered to such director or officer in writing solely in
his or her capacity as a director or officer of the Corporation. Any person purchasing or
otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have
notice of and consented to the provisions of this Article TWELFTH. Neither the alteration,
amendment or repeal of this Article TWELFTH nor the adoption of any provision of this Certificate
of Incorporation inconsistent with this Article TWELFTH shall eliminate or reduce the effect of
this Article TWELFTH in respect of any business opportunity first identified or any other matter
occurring, or any cause of action, suit or claim that, but for this Article TWELFTH, would accrue
or arise, prior to such alteration, amendment, repeal or adoption. Notwithstanding any other
provision of law, this Certificate of Incorporation or the Bylaws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of
the holders of at least two-thirds of the votes that all the stockholders would be entitled to cast
in any annual election of directors or class of directors shall be required to amend or repeal, or
to adopt any provision inconsistent with, this Article TWELFTH.
THIRTEENTH: The Corporation elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware, Business Combinations With Interested
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Stockholders, as permitted under and pursuant to subsection (b)(3) of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which restates, integrates and
amends the certificate of incorporation of the Corporation, and which has been duly adopted in
accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware,
has been executed by its duly authorized officer this ___day of , 2010.
SS&C TECHNOLOGIES HOLDINGS, INC. |
||||
By: | ||||
William C. Stone | ||||
Chairman of the Board and Chief Executive Officer | ||||
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