EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CARREKER-ANTINORI, INC.
This Amended and Restated Certificate of Incorporation amends and restates
the Certificate of Incorporation, as amended to date, of Carreker-Antinori,
Inc., a corporation originally incorporated in Delaware as "Carreker-Antinori,
Inc." on March 10, 1998. This Amended and Restated Certificate of
Incorporation has been duly adopted pursuant to Sections 242 and 245 of the
Delaware General Corporation Law.
ARTICLE ONE
NAME
The name of the corporation is Carreker-Antinori, Inc.
ARTICLE TWO
REGISTERED AGENT
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the County of New
Castle, in the City of Wilmington, Delaware 19801. The name of the
corporation's registered agent at such address is The Corporation Trust
Company.
ARTICLE THREE
PURPOSE
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE FOUR
CAPITAL STOCK
The corporation shall have the authority to issue 100,000,000 shares of
Common Stock, par value $0.01 per share.
The Board of Directors has the authority, without further action by the
stockholders, to issue 2,000,000 shares of Preferred Stock, par value $.01 per
share, in one or more series and to fix the rights, preferences, privileges and
restrictions thereof, including dividend rights, conversion rights, voting
rights, terms of redemption, liquidation preferences, sinking fund terms and
the number of shares constituting any series or the designation of such series,
without any further vote or action by the stockholders.
At every annual or special meeting of stockholders of the corporation,
every holder of Common Stock shall be entitled to one vote, in person or by
proxy, for each share of Common Stock standing in such holder's name on the
books of the corporation, subject to the rights of the holders of Preferred
Stock. Subject to the rights of the holders of the Preferred Stock, the Common
Stock shall be entitled to dividends out of funds legally available therefor,
when, as and if declared and paid to the holders of Common Stock, and upon
liquidation, dissolution or winding up of the corporation, to share ratably in
the assets of the corporation. The Common Stock shall not be redeemable.
ARTICLE FIVE
EXISTENCE
The corporation is to have perpetual existence.
ARTICLE SIX
INCORPORATOR
The name and mailing address of the sole incorporator is as follows:
Name Mailing Address
---- ---------------
Maurice E. Purnell, Jr. Locke Purnell Rain Harrell
(A Professional Corporation)
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
ARTICLE SEVEN
INITIAL DIRECTORS
The number of directors constituting the initial Board of Directors is
eight (8). Thereafter, the number of directors constituting the Board of
Directors shall be fixed by or in accordance with the bylaws of the
corporation. The following persons shall serve as the directors of the
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corporation until their term expires pursuant to the provisions of Article
Eight or until their successors are duly elected and qualified:
Name Address
---- -------
Ronald R. Antinori 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
James D. Carreker 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
John D. Carreker, Jr. 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
James L. Fischer 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
Richard R. Lee, Jr. 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
Richard L. Linting 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
Larry J. Peck 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
David K. Sias 14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
ARTICLE EIGHT
CLASSIFIED BOARD OF DIRECTORS
Subject to the rights, if any, of any series of Preferred Stock then
outstanding, the directors shall be divided into three classes, designated
Class I, Class II and Class III. The number of directors in each class shall
be the whole number contained in the quotient arrived at by dividing the
authorized number of directors by three, and if a fraction is also contained in
such quotient then if such fraction is one-third (1/3) the extra director shall
be a member of Class III and if the fraction is two-thirds (2/3) then one of
the extra directors shall be a member of Class III and the other shall be a
member of Class II. John D. Carreker, Jr. and Larry J. Peck shall be members
of Class I, Ronald R. Antinori, James L. Fischer, and Richard R. Lee, Jr. shall
be members of Class II, and James D. Carreker, Richard L. Linting and David K.
Sias shall be members of Class III. The term of office of directors in each
class shall expire as follows: Class I shall expire at the 1999 annual meeting
of stockholders, Class II shall expire at the 2000 annual
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meeting of stockholders, and Class III shall expire at the 2001 annual
meeting of stockholders. At each annual meeting of stockholders beginning
with the 1999 annual meeting, the successors to directors whose terms then
expire will be elected to serve from the time of their election and
qualification until the third annual meeting following election and until
their successors have been duly elected and qualified, or until their earlier
resignation or removal.
ARTICLE NINE
DIRECTOR VACANCIES
Subject to the rights, if any, of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, disqualification or removal may be
filled only by a majority vote of the directors then in office, though less
than a quorum, and directors so chosen shall hold office for a term expiring at
the annual meeting of stockholders at which the term of office of the class to
which they have been elected expires and until such director's successor shall
have been duly elected and qualified.
ARTICLE TEN
DIRECTOR REMOVAL
Any director or the entire Board of Directors may be removed only for cause
and only by the vote of the holders of two-thirds (2/3) of the securities of
the corporation then entitled to vote at an election of directors voting
together as a single class.
ARTICLE ELEVEN
CUMULATIVE VOTING PROHIBITED
Cumulative voting in the election of directors or otherwise is hereby
expressly prohibited.
ARTICLE TWELVE
PREEMPTIVE RIGHTS DENIED
No stockholder shall have, as a stockholder of the corporation, any
preemptive right to acquire, purchase or subscribe for the purchase of any or
all additional issues of stock of the corporation or any or all classes or
series thereof, or for any securities convertible into such stock, whether now
or hereafter authorized. Nothing in this Article will prohibit the corporation
from granting by contract preemptive rights or other rights to purchase stock
of the corporation.
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ARTICLE THIRTEEN
SHAREHOLDER MEETING
Any action required or permitted to be taken at any annual or special
meeting of stockholders may only be taken 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. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time only by the Chairman
of the Board or the Chief Executive Officer of the corporation or a majority of
the Board of Directors.
ARTICLE FOURTEEN
BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the board of directors of the corporation is expressly authorized to adopt,
alter or repeal the bylaws of the corporation.
ARTICLE FIFTEEN
INDEMNIFICATION
To the fullest extent permitted by the General Corporation Law of Delaware,
as the same may be amended from time to time, the corporation shall indemnify
any and all of its directors, officers, employees or agents of the corporation
or former directors and officers, or any person who is or was serving at the
corporation's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise. The corporation shall
have the power to purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, limited
liability company or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability.
No amendment nor repeal of this Article, nor the adoption of any provision
of this corporation's Certificate of Incorporation inconsistent with this
Article, shall eliminate or reduce the effect of this Article, in respect of
any matter occurring, or any action or proceeding accruing or arising or that,
but for this Article, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
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ARTICLE SIXTEEN
DIRECTOR LIABILITY
To the fullest extent permitted by the General Corporation Law of Delaware,
as the same may be amended from time to time, a director or former director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
except for: (i) any breach of the director's duty of loyalty to the corporation
or its stockholders; (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law; (iii) unlawful
payments of dividends or unlawful stock repurchases or redemptions; or (iv) any
transaction from which the director derived an improper personal benefit. No
repeal, amendment or modification of this Article, whether direct or indirect,
shall eliminate or reduce its effect with respect to any act or omission of a
director or former director of the corporation prior to such repeal, amendment
or modification.
ARTICLE SEVENTEEN
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
ARTICLE EIGHTEEN
COMPROMISE OR AGREEMENT WITH CREDITORS
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions
of section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
corporation under the provisions of section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangements and to
any reorganization of this corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
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ARTICLE NINETEEN
AMENDMENTS
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 all rights conferred upon stockholders
herein are granted subject to this reservation. In addition to any affirmative
vote required by applicable law or any other provision of this Certificate of
Incorporation or specified in any agreement, the affirmative vote of the
holders of not less than two-thirds (2/3) of the voting power of all securities
of the corporation entitled to vote generally in the election of directors
shall be required to amend, add, alter, change, repeal or adopt any provisions
inconsistent with Article Eight, Article Nine, Article Ten, Article Thirteen or
this Article Nineteen of this Certificate of Incorporation.
IN WITNESS WHEREOF, the corporation has caused this Amended and Restated
Certificate to be duly executed this 27th day of March, 1998.
By: /s/ John D. Carreker, Jr.
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John D. Carreker, Jr.
ATTEST:
/s/ Maurice E. Purnell, Jr.
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Maurice E. Purnell, Jr.
Secretary
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