exv4w1



 










Exhibit 4.1




COMPOSITE

CERTIFICATE OF INCORPORATION

OF

FAIR ISAAC CORPORATION




(giving effect to all amendments through February 3, 2004)




     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 two hundred one million
(201,000,000), of which one million (1,000,000) shares shall be Preferred Stock
of the par value of $.01 per share, and two hundred million (200,000,000)
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 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 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



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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.



         (e) 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.



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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.



     (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



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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.



     (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.



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         (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.



     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




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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.



     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,




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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 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



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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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