AMENDED AND RESTATED

 

                          CERTIFICATE OF INCORPORATION

 

                                       OF

 

                       THE ULTIMATE SOFTWARE GROUP, INC.

 

                            (Original Certificate of

 

                              Incorporation filed

 

                               on April 15, 1996)

 

                  This Amended and Restated Certificate of Incorporation, which

restates and amends the Third Amended and Restated Certificate of Incorporation

of The Ultimate Software Group, Inc. (the "Corporation") filed with the

Secretary of State of the State of Delaware on June 6, 1997, was duly adopted

by action of the Board of Directors of the Corporation and approved by a vote

of a majority of the outstanding stock entitled to vote thereon at a meeting of

the stockholders in accordance with the provisions of Sections 242 and 245 of

the General Corporation Law of the State of Delaware.

 

                  FIRST: The name of the corporation is The Ultimate Software

Group, Inc.

 

                  SECOND: The address of the Corporation's registered office in

the state of Delaware is Corporation Trust Center, 1209 Orange Street, in the

city of Wilmington, County of New Castle. The name of the Corporation's

registered agent at such address is The Corporation Trust Company.

 

                  THIRD: The nature of the business of the Corporation and its

purpose 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 authorized capital stock of the Corporation shall

consist of (i) 2,500,000 shares of Preferred Stock, par value $0.01 per share

(the "Preferred Stock"), and (ii) 50,000,000 shares of Common Stock, $0.01 par

value per share (the "Common Stock").

 

                  The Preferred Stock shall consist of one or more series of

Preferred Stock which shall have the powers, terms, conditions, designations,

preferences and privileges, the relative, participating, optional and other

special rights, and the qualifications, limitations and restrictions, if any,

as provided herein.

 

A. SERIES OF PREFERRED STOCK

 

                  The Board of Directors (or a duly authorized committee

thereof) is hereby expressly authorized to provide for, designate and issue,

out of the authorized but unissued shares of Preferred Stock, one or more

series of Preferred Stock. Before any

 

 

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shares of any such series are issued, the Board of Directors (or a duly

authorized committee thereof) shall fix, and is hereby expressly empowered to

fix, as to the shares of any such series:

 

                  (a) the designation of such series, the number of shares to

constitute such series and the stated value thereof, if different from the par

value thereof;

 

                  (b) whether the shares of such series shall have voting

rights or powers, in addition to any voting rights required by law and, if so,

the terms of such voting rights or powers, which may be full or limited;

 

                  (c) the dividends, if any, payable on such series, whether

any such dividends shall be cumulative and, if so, from what dates, the

conditions and dates upon which such dividends shall be payable, the

preferences or relation which such dividends shall bear to the dividends

payable on any shares of stock of any other class or any other series of this

class;

 

                  (d) whether the shares of such series shall be subject to

redemption by the Corporation and, if so, the times, prices and other

conditions of such redemption;

 

                  (e) the amount or amounts payable upon shares of such series

upon, and the rights of the holders of such series in, the voluntary or

involuntary liquidation, or upon any distribution of the assets, of the

Corporation;

 

                  (f) whether the shares of such series shall be subject to the

operation of a retirement or sinking fund and, if so, the extent to which and

manner in which any such retirement or sinking fund shall be applied to the

purchase or redemption of the shares of such series for retirement or other

corporate purposes and the terms and provisions relative to the operation

thereof;

 

                  (g) whether the shares of such series shall be convertible

into or exchangeable for shares of stock of any other class or any other series

of this class or any other securities and, if so, the price or prices or the

rate or rates of conversion or exchange and the method, if any, of adjusting

the same, and any other terms and conditions of conversion or exchange;

 

                  (h) the limitations and restrictions, if any, to be effective

while any shares of such series are outstanding upon the payment of dividends

or the making of other distributions on, and upon the purchase, redemption or

other acquisition by the Corporation of, the Common Stock or shares of stock of

any other class or any other series of this class;

 

                  (i) the conditions or restrictions, if any, to be effective

while any shares of such series are outstanding upon the creation of

indebtedness of the Corporation or upon the issue of any additional stock,

including additional shares of such series or of any other series of this class

or of any other class; and

 

 

 

 

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                  (j) any other powers, designations, preferences and relative,

participating, optional or other special rights, and any qualifications,

limitations, or restrictions thereof.

 

                  The powers, designations, preferences and relative,

participating, optional or other special rights of each series of Preferred

Stock, and the qualifications, limitations or restrictions thereof, if any, may

differ from those of any and all other series at any time outstanding. The

Board of Directors is hereby expressly authorized from time to time to increase

(but not above the total number of authorized shares of Preferred Stock) or

decrease (but not below the number of shares thereof then outstanding) the

number of shares of Preferred Stock designated to any one or more series of

Preferred Stock pursuant to this Section A of this Paragraph Fourth.

 

B. COMMON STOCK

 

                  All shares of Common Stock will be identical and will entitle

the holders thereof to the same rights and privileges.

 

         I.       Dividends

 

                  When, as and if dividends are declared thereon, whether

payable in cash, property or securities of the Corporation, the holders of

Common Stock will be entitled to share equally in and receive, in accordance

with the number of shares of Common Stock held by each such holder, such

dividends. Dividends payable under this Section B.I shall be paid to the

holders of record of the outstanding Common Stock as their names shall appear

on the stock register of the Corporation on the record date fixed by the Board

of Directors in advance of declaration and payment of each dividend. Any Common

Stock issued as a dividend pursuant to this Section B.I shall, when so issued,

be duly authorized, validly issued, fully paid and non-assessable, and free of

all liens and charges.

 

                  Notwithstanding anything contained herein to the contrary, no

dividends on Common Stock shall be declared by the Corporation's Board of

Directors or paid or set apart for payment by the Corporation at any time that

such declaration, payment, or setting apart is prohibited by applicable law.

 

         II.      Voting Rights

 

                  Each holder of the Common Stock shall be entitled to one vote

for each share of Common Stock held on all matters submitted to a vote of the

stockholders.

 

         III.     Other Rights

 

                  Except for and subject to those rights expressly granted to

the holders of Preferred Stock, or as otherwise provided herein, and except as

may be provided by the laws of the State of Delaware, the holders of Common

Stock shall have exclusively all other rights of stockholders, including,

without limitation, (a) the right to receive dividends, when, as and if

declared by the Board of Directors, out of assets lawfully available therefor,

and (b) in the event of any distribution of assets upon a liquidation or

 

 

 

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otherwise, the right to receive ratably and equally with all other holders of

Common Stock all of the assets and funds of the Corporation remaining after the

payment to the holders of the Preferred Stock, of the specific amounts which

they are entitled to receive upon such liquidation.

 

                  FIFTH: A. Board of Directors. Subject to the rights of the

holders of the Preferred Stock, the number which shall constitute the Board of

Directors of the Corporation shall be no greater than eleven (11) and no less

than five (5), as determined by the Board of Directors from time to time. The

Board of Directors shall be classified, with respect to the time for which the

directors severally hold office, into three classes, as nearly equal in number

as possible, in the manner specified in the By-laws of the Corporation, one

class to hold office initially for a term expiring at the annual meeting of

stockholders to be held in 1999, another class to hold office initially for a

term expiring at the annual meeting of stockholders to be held in 2000, and

another class to hold office initially for a term expiring at the annual

meeting of stockholders to be held in 2001, with the members of each class to

hold office until their successors are duly elected and qualified. At each

annual meeting of the stockholders of the Corporation, the successors to the

class of directors whose term expires at that meeting shall be elected to hold

office for a term expiring at the annual meeting of stockholders held in the

third year following the year of their election. Any vacancy on the Board of

Directors that results from an increase in the number of directors may be

filled by a majority of the Board of Directors then in office, provided that a

quorum is present, and any other vacancy occurring in the Board of Directors

may be filled by a majority of the Board of Directors then in office, even if

less than a quorum, or a sole remaining director. Any director elected to fill

a vacancy not resulting from an increase in the number of directors shall have

the same remaining term as that of his or her predecessor.

 

                  B. Removal of Directors Solely for Cause. No director may be

removed from office except for cause and only by the affirmative vote of the

holders of a majority of the combined voting power of all outstanding shares of

stock then entitled to vote generally in the election of directors, voting as a

single class. Notwithstanding the foregoing, directors who shall have been

elected by the holders of a series or class of Preferred Stock, voting

separately as a class, shall be removed only pursuant to the provisions

establishing the rights of such series or class to elect such directors.

 

                  The election of directors need not be by ballot unless the

By-laws of the Corporation so provide.

 

                  SIXTH: The following provisions are inserted for the

management of the business and for the conduct of the affairs of the

Corporation, and in furtherance and, except as specifically set forth in this

Paragraph, not in limitation of the powers of the Corporation and of its

directors and stockholders conferred by statute:

 

                  (1) Subject to the provisions of Article Eleventh hereof, the

Board of Directors shall have power without (except as provided by applicable

law) the assent or vote of the stockholders to make, alter, amend, change, add

to or repeal the By-laws of the Corporation; to authorize and cause to be

executed mortgages and liens upon all or

 

 

 

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any part of the property of the Corporation; to determine the use and

disposition of any surplus or net profits; to fix the times for the

declaration and payment of dividends; and to set apart out of any of the

funds of the Corporation available for dividends a reserve or reserves for

any proper purpose and to abolish any such reserve.

 

                  (2) In addition to the powers and authorities hereinbefore or

by statute expressly conferred upon them, the Board of Directors is hereby

empowered to exercise all such powers and do all such acts and things as may be

exercised or done by the Corporation; subject, nevertheless, to the provisions

of the laws of the State of Delaware, this Amended and Restated Certificate of

Incorporation and the Corporation's By-laws, as in effect from time to time.

 

                  SEVENTH: The books and records of the Corporation may be kept

(subject to any mandatory requirement of law) outside the State of Delaware at

such place or places as may be designated from time to time by the Board of

Directors or by the By-laws of the Corporation.

 

                  EIGHTH: No director shall be liable to the Corporation or any

of its stockholders for monetary damages for breach of fiduciary duty as a

director, provided that the foregoing does not eliminate or limit any liability

that may exist with respect to (1) a breach of the director's duty of loyalty

to the Corporation or its stockholders, (2) acts or omissions not in good faith

or which involve intentional misconduct or a knowing violation of law, (3)

liability under Section 174 of the Delaware General Corporation Law or (4) a

transaction from which the director derived an improper personal benefit, it

being the intention of the foregoing provision to eliminate the liability of

the Corporation's directors to the Corporation or its stockholders to the

fullest extent permitted by Section 102(b)(7) of the Delaware General

Corporation Law, as in effect on the date hereof and as such Section may be

amended after the date hereof to the extent such amendment permits such

liability to be further eliminated or limited. The Corporation shall indemnify

to the fullest extent permitted by Section 145 of the Delaware General

Corporation Law (as in effect on the date hereof and as such Section may be

amended after the date hereof) each person that such Section grants the

Corporation the power to indemnify. No amendment, modification or repeal of

this Paragraph Eighth shall adversely affect any right or protection of a

director that exists at the time of such amendment, modification or repeal.

 

                  NINTH: The Corporation reserves the right to amend or repeal

any provision contained in this Amended and Restated Certificate of

Incorporation in the manner now or hereafter prescribed by the laws of the

State of Delaware, and all rights herein conferred upon stockholders or

directors are granted subject to this reservation.

 

                  TENTH: Following the consummation of an initial public

offering of Common Stock or any transaction or event as a result of which any

Common Stock is listed on a national securities exchange or registered under

Section 12 of the Securities Exchange Act of 1934, as amended, any action

required or permitted to be taken by the stockholders of the Corporation must

be affected at a duly called annual or special meeting of stockholders of the

Corporation, and the ability of the stockholders to consent

 

 

 

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in writing to the taking of any action is hereby specifically denied except

as fixed pursuant to the provisions of Section A of Paragraph FOURTH hereof

relating to the rights of the holders of Preferred Stock. Except as otherwise

required by law, special meetings of stockholders of the Corporation may be

called only by (i) the Chairman of the Board or the President of the

Corporation and (ii) shall be called by the Secretary of the Corporation at

the request in writing of a majority of the members of the Board of Directors.

 

                  ELEVENTH: In furtherance and not in limitation of the powers

conferred upon it by the laws of the State of Delaware, the Board of Directors

shall have the power to adopt, alter, amend, terminate or repeal the

Corporation's By-laws. The affirmative vote of at least 66-2/3% of the entire

Board of Directors shall be required to adopt, alter, amend, terminate or

repeal the Corporation's By-laws.

 

                  TWELFTH: The provisions of Paragraphs Fifth, Tenth, Eleventh

and Twelfth hereof and Section 2.11 of the Corporation's By-laws may only be

altered, amended, terminated or repealed, or a provision adopted that is

inconsistent with the purpose and intent of the provisions of such Paragraphs

or Article, as the case may be, by the affirmative vote of the holders of at

least 66-2/3% of the voting power of the shares entitled to vote at an election

of directors.

 

 

 

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                  IN WITNESS WHEREOF, The Ultimate Software Group, Inc. has

caused this Amended and Restated Certificate of Incorporation to be signed by

its President and attested to by its Secretary and caused the corporate seal of

the Corporation to be hereunto affixed this _____day of _______, 1998.

 

 

                                       ----------------------------------

                                       Name:    Scott Scherr

                                       Title:   President and

                                                Chief Executive Officer

 

Attest:

 

 

 

 

- ------------------------------

Name:    Vivian Maza

Title:   Secretary