CERTIFICATE OF INCORPORATION
HEARTLAND PAYMENT SYSTEMS, INC.
The undersigned, Robert O.
Carr, being the Chief Executive Officer of Heartland Payment Systems, Inc. a corporation
organized and exiting under the laws of the State of Delaware in accordance
with an original Certificate of Incorporation of the Corporation filed with the
Secretary of State of the Sate of Delaware on June 16, 2000 and an Amended and
Restated Certificate of Incorporation filed with the Secretary of State of the
State of Delaware on October 11, 2001, hereby certifies, pursuant to Section
245 of the Delaware General Corporation Law as follows:
ONE: He is the duly elected, qualified and acting
the Chief Executive Officer of Heartland Payment Systems, Inc., a Delaware corporation
TWO: The Amended and Restated Certificate of
Incorporation of said corporation is amended and restated to read in its
entirety as follows:
The name of the
Corporation is Heartland Payment Systems, Inc.
The purpose of the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the Delaware General Corporation Law as the same exists
or may hereafter be amended (the “DGCL”).
The Corporation shall have
The registered office of
the Corporation in Delaware
is Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington,
New Castle County, Delaware 19808, and the name of its
registered agent is The Corporation Service Company.
(a) Authorized Capital Stock.
The total number of shares of capital stock which the Corporation is authorized
to issue shall be 110,000,000 shares, consisting of 100,000,000 shares of
common stock, par value $0.001 per share (“Common
Stock”), and 10,000,000 shares of preferred stock, par value $0.001 per share
upon the filing of this Amended and Restated Certificate of Incorporation with
the Office of the Secretary of State of the
State of Delaware,
each one (1) share of the Corporation’s Series A
Senior Convertible Participating Preferred Stock (the “Series A Preferred
Stock”) shall be converted into one (1) share of Common Stock.
(2) Pursuant to Section 242 (b)(2) of the DGCL, the number of authorized shares of any
class or series of Common Stock or Preferred 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 voting power of all the
then outstanding shares of Common Stock and Preferred Stock, voting as a single
class without the separate vote of the holders of any other class or series of stock.
(b) Common Stock. All shares
of Common Stock shall be voting shares and shall be entitled to one vote per
share. Holders of Common Stock shall not be entitled to cumulate their
votes in the election of directors and shall not be entitled to any preemptive
rights to acquire shares of any class or series of capital stock of the
Corporation. Subject to any preferential rights of holders of Preferred
Stock, holders of Common Stock shall be entitled to receive their pro rata
shares, based upon the number of shares of Common Stock held by them, of such
dividends or other distributions as may be declared by the board of directors
of the Corporation (the “Board of Directors”) from time to time and of
any distribution of the assets of the Corporation upon its liquidation,
dissolution or winding up, whether voluntary or involuntary.
(c) Preferred Stock. The
Preferred Stock may be issued from time to time in one or more series, without
further stockholder approval. The Board of Directors is hereby authorized
to fix or alter the rights, preferences, privileges and restrictions granted to
or imposed upon each series of Preferred Stock, and the number of shares
constituting any such series and the designation thereof, or of any of
them. The rights, privileges, preferences and restrictions of any such
additional series may be subordinated to, pari
passu with (including, without limitation,
inclusion in provisions with respect to liquidation and acquisition
preferences, redemption and/or approval of matters by vote), or senior to any
of those of any present or future class or series of Preferred Stock or Common
Stock. The Board of Directors is also authorized to increase or decrease
the number of shares of any series prior or subsequent to the issue of that
series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution originally fixing the number
of shares of such series.
In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, repeal, alter, amend and rescind any or all of
the Bylaws of the Corporation. In addition, the Bylaws may be amended by
the affirmative vote of holders of at least sixty-six and two-thirds percent
(66 2/3%) of the outstanding shares of voting stock of the Corporation entitled
to vote at an election of directors.
(a) Number of Directors. The
number of directors of the Corporation shall be determined by resolution of the
Board of Directors.
(b) Election of Directors.
(1) Elections of directors need not be by
written ballot unless the Bylaws of the Corporation shall so provide.
Advance notice of stockholder nominations for the election of directors and of
any other business to be brought before any meeting of the stockholders shall
be given in the manner provided in the Bylaws of this Corporation.
(2) At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold office
until the expiration of the term for which they are elected, or until their
successors have been duly elected and qualified; except that if any such
election shall not be so held, such election shall take place at a
stockholders’ meeting called and held in accordance with the DGCL.
(c) Vacancies and Removal of Directors.
Vacancies occurring on the Board of Directors for any reason may be filled only
by vote of a majority of the remaining members of the Board of Directors, even
if less than a quorum, at any meeting of the Board of Directors, or by a sole
remaining director. A person so elected by the Board of Directors to fill
a vacancy shall hold office for the remainder of the full term of the director
for which the vacancy was created or occurred and until such director’s
successor shall have been duly elected and qualified. Except as may
otherwise be prohibited or restricted under the laws of the State of Delaware,
the stockholders may, at any meeting called for the purpose remove any director
from office with or without cause, and may elect his successor.
Stockholders of the
Corporation shall take action by meetings held pursuant to this Amended and
Restated Certificate of Incorporation and the Bylaws and shall have no right to
take any action by written consent without a meeting. Meetings of
stockholders may be held within or without the State of Delaware, as the Bylaws may provide.
Special meetings of the stockholders, for any purpose or purposes, may only be
called by the Board of Directors of the Corporation and the Chief Executive
Officer of the Corporation. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors or
in the Bylaws of the Corporation.
(a) Indemnification. To the
fullest extent permitted by applicable law, this Corporation is authorized to
provide indemnification of (and advancement of expenses to) directors,
officers, employees and agents (and any other persons to which the DGCL permits
this Corporation to provide indemnification) through Bylaw provisions,
agreements with such agents or other persons, vote of stockholders or
disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the DGCL,
subject only to limits created by applicable the DGCL (statutory or
non-statutory), with respect to action for breach of duty to the Corporation,
its stockholders, and others.
(b) Indemnification Procedures.
Each person 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
(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 a
direct or indirect 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, shall be indemnified
and held harmless by the Corporation, and the Corporation shall advance all
expenses incurred by any such person in defense of any such proceeding prior to
its final determination, to the fullest extent authorized by the DGCL. In
any proceeding against the Corporation to enforce these rights, such person
shall be presumed to be entitled to indemnification and the Corporation shall
have the burden of proving that such person has not met the standards of
conduct for permissible indemnification set forth in the DGCL. The rights
to indemnification and advancement of expenses conferred by this Article 9
shall be presumed to have been relied upon by the 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 direct or indirect 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 specified rights to indemnification, which contracts
may confer rights and protections to the maximum extent permitted by the DGCL,
as amended and in effect from time to time.
(c) Standard of Conduct. If
a claim under this Article 9 is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expenses of prosecuting such
claim. It shall be a defense to any such action (other than an action
brought to enforce the right to be advanced expenses incurred in defending any
proceeding prior to its final disposition where the required undertaking, if
any, has been tendered to the Corporation ) that the claimant has not met the standards
of conduct which make it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the claimant shall be
presumed to be entitled to indemnification and the Corporation shall have the
burden of proving that the claimant has not met the standards of conduct for
permissible indemnification set forth in the DGCL.
(d) Amendments to the DGCL. If the
DGCL is hereafter amended to permit the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment, the indemnification rights conferred by this Article 9 shall
be broadened to the fullest extent permitted by the DGCL, as so amended.
(e) Limitations on Director Liability.
No director of the Corporation shall be personally liable to the Corporation or
any stockholder for monetary damages for breach of fiduciary duty as a
director, except for any matter in respect of which such director shall be
liable under Section 174 of the DGCL or any amendment thereto or shall be
liable by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director’s duty of loyalty
to the Corporation or its stockholders, (2) shall have acted in a manner
involving intentional misconduct or a knowing violation of law or, in failing
to act, shall have acted in a manner involving intentional misconduct or a
knowing violation of law, or (3) shall have derived an improper personal
benefit. If the DGCL is hereafter amended to authorize the further
elimination or limitation of the liability of a director, the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended.
The Corporation reserves
the right to amend, alter, change or repeal any provision contained in this
Amended and Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in Articles 6, 7, 8, 9 and 10 of this
Amended and Restated Certificate of Incorporation may not be repealed or
amended in any respect without the affirmative vote of holders at least 66-2/3%
of the outstanding voting stock of the Corporation entitled to vote at election
THREE: The foregoing amendment and restatement
has been duly adopted by the Corporation’s Board of Directors in accordance
with the applicable provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
FOURTH: The foregoing amendment and restatement was
approved by the holders of the requisite number of shares of the Corporation in
accordance with Section 228 of the General Corporation Law of the State of Delaware.
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be duly executed in its corporate name on
________ __, 2005.
[As Filed: 2005-03-29]