EXHIBIT 3.1
FIRST AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICAN CARD TECHNOLOGY, INC.
AMERICAN CARD TECHNOLOGY, INC., (the "Corporation"), a corporation
organized under the laws of the State of Delaware, hereby amends and restates
its Certificate of Incorporation, which was originally filed with the Secretary
of State of Delaware on June 21, 1994, so that the same shall read, in its
entirety, as follows:
ARTICLE I. NAME
(a) The name of the Corporation is AMERICAN CARD TECHNOLOGY, INC.
(b) The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle; and
the name of the registered agent of the Corporation in the State of Delaware at
such address is The Corporation Trust Company.
ARTICLE II. PURPOSE
The nature of the business and the purposes to be conducted and promoted
by the Corporation shall be to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE III. CAPITAL STOCK
(a) The total number of shares of all classes of stock which the
Corporation has authority to issue is Twenty-One Million (21,000,000),
consisting of Twenty Million (20,000,000) shares of Common Stock, par value
$.001 per share (the "Common Stock"), and One Million (1,000,000) shares of
Preferred Stock, par value $.001 per share (the "Preferred Stock"). The voting
powers, designations, preferences and relative, participating, optional or other
rights, if any, and the qualifications, limitations or restrictions, if any, of
the Preferred Stock, in one or more series, shall be fixed by one or more
resolutions providing for the issue of such stock adopted by the Corporation's
board of directors, in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, as the same may be amended and
supplemented (the "Delaware GCL"), and the board of directors is expressly
vested with authority to adopt one or more such resolutions. No shareholder
shall be entitled as of right to purchase or subscribe for any unissued shares
of the Corporation, whether now or hereafter authorized or whether of a class
now existing or of a class hereafter created, or to purchase or subscribe for
any bonds, certificates of indebtedness, debentures, or other obligations
convertible into shares of the Corporation.
ARTICLE IV. DIRECTORS
(a) The number of directors of the Corporation shall be established
pursuant to the by-laws of the Corporation, provided that the number of
directors may not be fewer than three (3) unless the Corporation has fewer than
three (3) stockholders, in which case the number of directors may not be fewer
than the number of stockholders. The board of directors is authorized to make,
alter or repeal the by-laws of the Corporation.
(b) Directors shall be divided into three classes of directors, each
class containing an equal number of directors. During the initial term,
directors in the first class shall be elected for a one-year term, directors in
the second class shall be elected for a two-year term, and directors in the
third class shall be elected for a three-year term. At each subsequent annual
meeting, each class of directors standing for election shall be elected for a
term of three years.
(c) No director of the Corporation shall be personally 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 GCL, or (iv) for any
transaction from which the director derived any improper personal benefit.
(d) All elections of directors may be by written ballot or by voice vote,
as determined by the board of directors prior to any such election, or by
written consent of stockholders pursuant to Section 228 of the Delaware GCL.
ARTICLE V. INDEMNIFICATION
(a) The Corporation shall, to the fullest extent permitted by Section
145 of the Delaware GCL, indemnify any and all directors and officers from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director or officer and shall inure to the benefit
of the heirs, executors, and administrators of such a person. The right to
indemnification conferred in this paragraph shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; PROVIDED,
HOWEVER, that, if the Delaware GCL requires the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer in advance of the final disposition of a proceeding, such payment shall
be made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this paragraph or otherwise.
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ARTICLE VI. PERPETUAL EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VII. COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the 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 the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the 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 the 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 the Corporation, as the case may be, to be summoned in such
matter 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 the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
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 the Corporation, as the case may be, and also on the
Corporation.
ARTICLE VIII. AMENDMENTS AND REPEAL
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this First 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 are granted subject to this
reservation.
I, RAYMOND FINDLEY, JR., do hereby certify that I am President of the
Corporation and that the First Amended and Restated Certificate of Incorporation
of the Corporation has been duly adopted by the written consent of the directors
in accordance with the provisions of Sections 141(f), 242 and 245 of the General
Corporation Law of Delaware, as amended.
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IN WITNESS WHEREOF, AMERICAN CARD TECHNOLOGY, INC., has caused this
certificate to be signed by its President as of this 11th day of December,
1996.
AMERICAN CARD TECHNOLOGY, INC.
By /s/ Raymond Findley, Jr.
-----------------------------
Raymond Findley, Jr.
Its President
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