**Exhibit 3.1**

 

**AMENDED AND RESTATEDCERTIFICATE OF INCORPORATIONOF**

**BANCTEC, INC.**

 

As Amended

 

FIRST: The name of the Corporation is BANCTEC, INC.

 

SECOND: The address of the registered office of the Corporation inthe State of Delaware is 1013 Centre Road, in the City of Wilmington, County ofNew Castle. The name of the Corporation’s registered agent at such address isCorporation Service Company.

 

THIRD: The purposes for which the Corporation is formed are toengage in any lawful act or activity for which corporations may be organizedunder the Delaware General Corporation Law.

 

FOURTH: The total number of shares of all classes of stock whichthe Corporation shall have authority to issue is 32,000,000 shares, consistingof 1,000,000 shares of Preferred Stock, $.01 par value (“Preferred Stock”),30,000,000 shares of Common Stock, $.01 par value (“Common Stock”), and2,000,000 shares of Class A Common Stock, $.01 par value (“Class A CommonStock”).

 

I.              CommonStock and Class A Common Stock.

 

Except as otherwise expressly provided herein, all shares ofCommon Stock and Class A Common Stock shall be identical and shall entitle theholders thereof to the same rights and privileges. The following is a statementof the designations, and the powers, preferences and rights, and thequalifications, limitations or restrictions thereof, in respect of each classof common stock of the Corporation:

 

1.             Dividends.The holders of shares of Common Stock and Class A Common Stock shall beentitled to receive such dividends as from time may be declared by the Board ofDirectors of the Corporation out of any funds legally available therefor; providedthat any dividends declared with respect to shares of Common Stock and Class AStock shall be the same.

 

2.             Liquidation.Upon any liquidation, dissolution or winding up of the Corporation, whethervoluntary or involuntary, the holders of the shares of Class A Common Stock andCommon Stock, according to the number of shares of Class A Common Stock andCommon Stock then outstanding, shall be entitled to share ratably in all assetsof the Corporation available for distribution to its stockholders.

 

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3.             Conversion.

 

3A.          OptionalConversion of Class A Common Stock. Subject to and upon compliance with theprovisions of this paragraph 3, the holder of any share or shares of Class ACommon Stock shall have the right, at its option, to convert such shares ofClass A Common Stock (except that upon any liquidation, dissolution or windingup of the Corporation the right of conversion shall terminate at the close ofbusiness on the last full business day next preceding the date fixed forpayment of the amount distributable on Class A Common Stock) into an equalnumber of fully paid and nonassessable whole shares of Common Stock. Suchrights of conversion shall be exercised by the holder thereof by giving writtennotice that the holder elects to convert a stated number of shares of Class ACommon Stock into Common Stock and by surrender of a certificate orcertificates for the shares so to be converted to the Corporation at itsprincipal office (or such other office or agency of the Corporation as theCorporation may designate by notice in writing to the holder or holders of theClass A Common Stock) at any time during its usual business hours on the dateset forth in such notice, together with a statement of the name or names (withaddress), subject to compliance with applicable laws to the extent suchdesignation shall involve a transfer, in which the certificate or certificatesfor shares of Common Stock shall be issued.

 

3B.           AutomaticConversion of Class A Common Stock. Notwithstanding anything else herein tothe contrary in this Section 3, in the event that, at any time while any of theClass A Common Stock shall be outstanding, (i)(A) the Corporation shallcomplete a firm commitment underwritten public offering of Common Stockregistered under the Securities Act of 1933, as amended, in which the aggregateprice paid for such shares by the public shall be at least $50,000,000 (a“Qualified Offering”), or (B) greater than 50% of the outstanding shares ofClass A Common Stock shall have been converted into Common Stock, then alloutstanding shares of Class A Common Stock shall be automatically and withoutfurther action on the part of the holders of the Class A Common Stock convertedinto an equal number of fully paid and nonassessable whole shares of CommonStock, such conversion to be effective immediately prior to the closing of suchQualified Offering or immediately prior to the conversion of Class A CommonStock satisfying clause (B) above, as the case may be, and (ii) the originalpurchaser of any shares of Class A Common Stock named in the SecuritiesPurchase Agreement, dated as of June 17, 1999, by and between ColonialAcquisition Corp. and the purchaser named therein, shall sell, transfer orotherwise convey to any party other than to any affiliates (as defined in Rule405 promulgated under the Securities Act) of such original purchaser or tomembers or partners of such affiliates, such shares of Class A Common Stockshall be automatically and without further action on the part of the holders ofsuch Class A Common Stock converted into an equal number of fully paid andnonassessable whole shares of Common Stock, with the same effect as if the certificatesevidencing such shares had been surrendered for conversion; provided, however,that certificates evidencing the shares of Common Stock issuable upon suchconversion shall not be issued except on surrender of the certificates for theshares of the Class A Common Stock so converted.

 

3C.           Issuanceof Certificates; Time Conversion Effected. Promptly after the receipt bythe Corporation of the written notice referred to in subparagraph 3A andsurrender of the certificate or certificates for the share or shares of theClass A Common Stock to be converted, the Corporation shall issue and deliver,or cause to be issued and

 

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delivered, to the holder, registered in such name or names as suchholder may direct, subject to compliance with applicable laws to the extentsuch designation shall involve a transfer, a certificate or certificates forthe number of whole shares of Common Stock issuable upon the conversion of suchshare or shares of Class A Common Stock. To the extent permitted by law, such conversion shall be deemed to havebeen effected immediately prior to the close of business on the day thecertificate or certificates for such share or shares shall have beensurrendered as aforesaid, and at such time the rights of the holder of suchshare or shares of Class A Common Stock shall cease, and the person or personsin whose name or names any certificate or certificates for shares of CommonStock shall be issuable upon such conversion shall be deemed to have become theholder or holders of record of the shares represented thereby.

 

3D.          FractionalShares; Dividends; Partial Conversion. No fractional shares shall be issuedupon conversion of the Class A Common Stock into Common Stock and no payment oradjustment shall be made upon any conversion on account of any cash dividendson the Class A Common Stock so converted or the Common Stock issued upon suchconversion. In case the number of shares of Class A Common Stock represented bythe certificate or certificates surrendered pursuant to subparagraph 3A exceedsthe number of shares converted, the Corporation shall, upon such conversion,execute and deliver to the holder thereof, at the expense of the Corporation, anew certificate or certificates for the number of shares of Class A CommonStock, represented by the certificate or certificates surrendered which are notto be converted. If any fractional interest in a share of Common Stock would,except for the provisions of the first sentence of this subparagraph 3D, bedeliverable upon any such conversion, the Corporation, in lieu of deliveringthe fractional share thereof, shall pay to the holder surrendering the Class ACommon Stock for conversion an amount in cash equal to the current fair valueof such fractional interest as determined in good faith by the Board ofDirectors of the Corporation.

 

3E.           Subdivisionor Combination of Stock. In case the Corporation shall at any timesubdivide its outstanding shares of Common Stock into a greater number ofshares or shall declare or pay a dividend on its outstanding shares of CommonStock payable in shares of Common Stock, then in each case the Class A CommonStock shall be similarly subdivided or entitled to such dividend, andconversely, in case the outstanding shares of Common Stock of the Corporationshall be combined into a smaller number of shares, the Class A Common Stockshall be similarly combined.

 

3F.           Reorganizationor Reclassification. If any capital or reclassification of the capitalstock of the Corporation shall be effected in such a way (including, withoutlimitation, by way of consolidation or merger) that holders of Common Stockshall be entitled to receive stock, securities or assets with respect to or inexchange for Common Stock, then, as a condition of such reorganization orreclassification, lawful and adequate provision shall be made whereby eachholder of a share or shares of Class A Common Stock shall thereafter only havethe right to receive, upon the basis and upon the terms and conditions specifiedherein and in lieu of the shares of Common Stock of the Corporation immediatelytheretofore receivable upon the conversion of such share or shares of Class ACommon Stock, such shares of stock, securities or assets as may be issued orpayable with respect to or in exchange for a number of outstanding shares ofsuch Common Stock equal to the number of shares of

 

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such stock immediately theretofore soreceivable had such reorganization or reclassification not taken place, and inany such case appropriate provision shall be made with respect to the rightsand interests of such holder to the end that the provisions hereof shallthereafter be applicable, as nearly as may be, in relation to any shares of stock,securities or assets thereafter deliverable upon the exercise of suchconversion rights. In the event of a merger or consolidation of the Corporationas a result of which a greater or lesser number of shares of common stock ofthe surviving corporation are issuable to holders of Common Stock of theCorporation outstanding immediately prior to such merger or consolidation, thenumber of shares of Common Stock into which Class A Common Stock may beconverted shall be adjusted in the same manner as though there were asubdivision or combination of the outstanding shares of Common Stock of theCorporation.

 

3G.          Notice ofAdjustment. Upon any adjustment made pursuant to 3E or 3F, then and in eachsuch case the Corporation shall give written notice thereof, by first classmail, postage prepaid, addressed to each holder of shares of Class A CommonStock at the address of such holder as shown on the books of the Corporation,which notice shall state the number of shares of Common Stock or othersecurities, cash or property issuable upon conversion of the Class A CommonStock resulting from such adjustment, setting forth in reasonable detail themethod of calculation and the facts upon which such calculation is based.

 

3H.          Stock to beReserved. The Corporation will at all times reserve and keep available outof its authorized but unissued Common Stock, solely for the purpose of issuanceupon the conversion of the Class A Common Stock as herein provided, such numberof shares of Common Stock as shall then be issuable upon the conversion of alloutstanding shares of Class A Common Stock. All shares of Common Stock whichshall be so issued shall be duly and validly issued and fully paid andnonassessable and free from all taxes, liens and charges arising out of or by reasonof the issue thereof. The Corporation will take all such action within itscontrol as may be necessary on its part to assure that all such shares ofCommon Stock may be so issued without violation of any applicable law orregulation, or of any requirements of any national securities exchange uponwhich the Common Stock of the Corporation may be listed.

 

3I.            NoReissuance of Class A Common Stock. Shares of Class A Common Stock whichare converted into shares of Common Stock as provided herein shall not bereissued.

 

3J.           Issue Tax.The issuance of certificates for shares of Common Stock upon conversion of theClass A Common Stock shall be made without charge to the holders thereof forany issuance tax in respect thereof, provided that the Corporation shall not berequired to pay any tax which may be payable in respect of any transferinvolved in the issuance and delivery of any certificate in a name other thanthat of the holder of the Class A Common Stock which is being converted.

 

3K.          Closing ofBooks. The Corporation will at no time close its transfer books against thetransfer of any Class A Common Stock or of any shares of Common Stock issued orissuable upon the conversion of any shares of Class A Common Stock in anymanner which interferes with the timely conversion of such Class A CommonStock.

 

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3L.           Definitionof Common Stock. As used in this paragraph 3, the term “Common Stock” shallmean and include the Corporation’s authorized Common Stock, $.01 par value, asconstituted on the date of filing of this Amended and Restated Certificate ofIncorporation and shall also include any capital stock of any class of theCorporation thereafter authorized which shall not be limited to a fixed sum orpercentage of par value in respect of the rights of the holders thereof toparticipate in dividends or in the distribution of assets upon the voluntary orinvoluntary liquidation, dissolution or winding up of the Corporation; providedthat the shares of Common Stock receivable upon conversion of shares of theClass A Common Stock, or in case of any reorganization or reclassification ofthe outstanding shares thereof, the stock, securities or assets provided for insubparagraphs 3E or 3F, shall include only shares designated as Common Stock ofthe Corporation on the date of filing of this Amended and Restated Certificateof Incorporation.

 

4.             Voting.Except as otherwise provided by law or this Certificate of Incorporation, theholders of Common Stock and Class A Common Stock shall vote together as a classon all matters to be voted on by the stockholders of the Corporation on thefollowing basis: (1) each holder of Class A Common Stock shall be entitled toone vote for each share of Common Stock which would be issuable to such holderupon the conversion of all the shares of Class A Common Stock so held on therecord date for the determination of stockholders entitled to vote and (2) eachholder of Common Stock shall be entitled to one vote per share. So long asshares of Class A Common Stock are outstanding, at any annual meeting ofstockholders for the election of directors of the Corporation, one director(the “Class A Director”) shall be elected by the holders of Class A CommonStock voting together as a single class, to the exclusion of the holders ofCommon Stock and any other class of capital stock of the Corporation that hasthe right to vote at such meeting. The holders of Common Stock and any otherclass of capital stock of the Corporation which has the right to vote at suchmeeting (other than Class A Common Stock) shall elect the remaining directors.So long as shares of Class A Common Stock are outstanding, the Class A Directormay be removed by, with or without cause, the vote or consent of the holders ofrecord of the outstanding shares of Class A Common Stock, voting together as asingle class. So long as shares of Class A Common Stock are outstanding, anyvacancy in the office of the Class A Director may be filled by the personelected by the vote of the holders of record of the outstanding shares of ClassA Common Stock, voting together as a single class. So long as shares of Class ACommon Stock are outstanding, the Corporation shall not, without theaffirmative vote or consent of a majority of the holders of shares of Class ACommon Stock outstanding at the time (1) amend, alter or repeal the provisionsof this Section I of Article FOURTH of this Amended and Restated Certificate ofIncorporation or (2) issue, authorize or propose the issuance of any shares ofClass A Common Stock.

 

II.            PreferredStock.

 

The Board of Directors is authorized to provide for the issuanceof the shares of Preferred Stock in series and, by filing a certificatepursuant to the applicable law of the State of Delaware, to establish from timeto time the number of shares to be included in each such series, and to fix thedesignation, powers, preferences and rights of the shares of each such seriesand the qualifications, limitations or restrictions thereof. The authority ofthe Board of Directors

 

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with respect to the Preferred Stock shall include, but not be limitedto, determination of the following:

 

1.             The number ofshares constituting that series and distinctive designation of that series;

 

2.             The dividendrate on the shares of that series, dividends shall be cumulative, and, if so,from which date or dates and the relative rights of priority, if any, ofpayment of dividends share of that series;

 

3.             Whether thatseries shall have voting rights, in addition the voting rights provided by law,and, if so, the terms of such voting rights;

 

4.             Whether thatseries shall have conversion privileges, and, if so, the terms and conditionsof such conversion, including provision for adjustment of the conversion ratein such events as the Board of Directors shall determine;

 

5.             Whether or notthe shares of that series shall be redeemable, and, if so, the terms andconditions of such redemption, including the date or dates upon or after whichthey shall be redeemable, and the amount per share payable in case ofredemption, which amount may vary under different conditions and at differentredemption dates;

 

6.             Whether thatseries shall have a sinking fund for the redemption or purchase of shares ofthat series, and, if so, the terms and amount of such sinking fund;

 

7.             The rights ofthe shares of that series in the event of voluntary or involuntary liquidation,dissolution or winding up of the Corporation, and the relative rights ofpriority, if any, of payment of shares of that series; and

 

8.             Any otherrelative rights, preferences and limitations of that series.

 

FIFTH: In furtherance and not in limitation of the powersconferred by the laws of the State of Delaware, the Board of Directors of the Corporationis expressly authorized and empowered to make, alter or repeal the By-laws ofthe Corporation, subject to the power of the stockholders of the Corporation toalter or repeal any By-law made by the Board of Directors.

 

SIXTH: The Corporation reserves the right at any time and fromtime to time to amend, alter, change or repeal any provisions contained in thisAmended and Restated Certificate of Incorporation; and other provisionsauthorized by the laws of the State of Delaware at the time in force may beadded or inserted, in the manner now or hereafter prescribed by law; and allrights, preferences and privileges of whatsoever nature conferred uponstockholders, directors or any other persons whomsoever by and pursuant to thisAmended and Restated Certificate of Incorporation in its present form or ashereafter amended are granted subject to the right reserved in this Article.

 

SEVENTH: (a)  A director of the Corporation shall not bepersonally liable either to the Corporation or to any stockholder for monetarydamages for breach of fiduciary duty as a director, except for (i) any breachof the director’s duty of loyalty to the Corporation or its stockholders, (ii)acts or omissions which are not in good faith or which involve intentional

 

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misconduct or knowing violation of the law, (iii) any matter in respectof which such director shall be liable under Section 174 of Title 8 of theGeneral Corporation Law of the State of Delaware or any amendment thereto orsuccessor provision thereto, or (iv) any transaction from which the directorshall have derived an improper personal benefit. Neither amendment nor repealof this paragraph (a) nor the adoption of any provision of the Amended andRestated Certificate of Incorporation inconsistent with this paragraph (a)shall eliminate or reduce the effect of this paragraph (a) in respect of anymatter occurring, or any cause of action, suit or claim that, but for thisparagraph (a) of this Article, would accrue or arise, prior to such amendment,repeal or adoption of an inconsistent provision.

 

(b)  The Corporation shall indemnify any person who wasor is a party or is threatened to be made a party to, or testifies in, anythreatened, pending or completed action, suit or proceeding, whether civil,criminal, administrative or investigative in nature, by reason of the fact thatsuch person is or was a director, officer, employee or agent of theCorporation, or is or was serving at the request of the Corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, employee benefit plan, trust or other enterprise, against expenses(including attorneys’ fees), judgments, fines and amounts paid in settlementactually and reasonably incurred by such person in connection with such action,suit or proceeding to the full extent permitted by law, and the Corporation mayadopt by-laws or enter into agreements with any such person for the purpose ofproviding for such indemnification.

 

(c)  To the extent that a director or officer of theCorporation has been successful on the merits or otherwise in defense of anyaction, suit or proceeding referred to in paragraph (b) of this Article, or indefense of any claim, issue or matter therein, such person shall be indemnifiedagainst expenses (including attorneys’ fees) actually and reasonably incurredby such person in connection therewith.

 

(d)  Expenses incurred by an officer, director, employeeor agent in defending or testifying in a civil, criminal, administrative orinvestigative action, suit or proceeding shall be paid by the Corporation inadvance of the final disposition of such action, suit or proceeding uponreceipt of an undertaking by or on behalf of such officer, director, employee oragent to repay such amount if it shall ultimately be determined that suchperson is not entitled to be indemnified by the Corporation against suchexpenses as authorized by this Article, and the Corporation may adopt by-lawsor enter into agreements with such persons for the purpose of providing forsuch advances.

 

(e)  The indemnification permitted by this Article shallnot be deemed exclusive of any other rights to which any person may be entitledunder any agreement, vote of stockholders or disinterested directors orotherwise, both as to action in such person’s official capacity and as toaction in another capacity while holding an office, and shall continue as to aperson who has ceased to be a director, officer, employee or agent and shallinure to the benefit of the heirs, executors and administrators of such person.

 

(f)  The Corporation shall have power to purchase andmaintain 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 ofthe Corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, employee benefit plan, trust or otherenterprise against any liability asserted against such person and incurred bysuch person in any such capacity, or arising out of such person’s status assuch, whether or not the

 

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Corporation would have the power to indemnify such person against suchliability under the provisions of this Article or otherwise.

 

(g)  If a claim for indemnification or advancement ofexpenses under this Article is not paid in full by the Corporation within 60days after a written claim has been received by the Corporation, the claimantmay at any time thereafter bring suit against the Corporation to recover theunpaid amount of the claim, and if successful in whole or in part, the claimantshall also be entitled to be paid the expenses of prosecuting such claim. Itshall be a defense to any such action that such indemnification or advancementof costs of defense are not permitted under the Delaware General CorporationLaw, but the burden of providing such defense shall be on the Corporation.Neither the failure of the Corporation (including its board of directors or anycommittee thereof, independent legal counsel or stockholders) to have made itsdetermination prior to the commencement of such action that indemnification of,or advancement of cost of defense to, the claimant is permissible in thecircumstances nor an actual determination by the Corporation (including itsboard of directors or any committee thereof, independent legal counsel orstockholders) that such indemnification or advancement is not permissible shallbe a defense to the action or create a presumption that such indemnification oradvancement is not permissible.

 

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