Exhibit
4.3


 


AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

HEARTLAND PAYMENT SYSTEMS, INC.


 


Pursuant to Sections 242 and 245 of the

General Corporation Law of the State of the State of Delaware


 










 


Heartland Payment
Systems, Inc. (the “Corporation”)
is a corporation organized and existing under the General Corporation Law of
the State of Delaware. The Corporation’s original Certificate of Incorporation
was filed with the Secretary of State of Delaware on June 16, 2000.  A Certificate of Amendment was filed with the
Secretary of State of Delaware on September 29, 2000. The provisions of the
Certificate of Incorporation are hereby amended and restated so as to read, in
their entirety, as follows:


 


ARTICLE
1.


 


The name of the
corporation is Heartland Payment Systems, Inc.


 


ARTICLE
2.


 


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 (“Delaware Law”).


 


ARTICLE 3.


 


The Corporation
shall have perpetual duration.


 


ARTICLE
4.


 


The registered
office of the Corporation in Delaware is the 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.


 


ARTICLE
5.


 


(a)           Authorized
Capital Stock.  The total
number of shares of capital stock which the Corporation is authorized to issue
shall be 35,000,000 shares, consisting of 25,000,000 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 (“Preferred 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 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 board of directors of the Corporation is hereby authorized
to provide, by resolution or resolutions adopted by such board, for the
issuance of Preferred Stock from time to time in one or more classes and/or
series, to establish the number of shares of each such class or series, and to
fix the powers, designations, preferences and relative, participating, optional
or other rights, if any, and the qualifications, limitations or restrictions
thereof, if any, of the shares of each such class or series, all to the full
extent permitted by Delaware Law. Without limiting the generality of the
foregoing, the board of directors is authorized to provide that shares of a
class or series of Preferred Stock:


 


(1)           are
entitled to cumulative, partially cumulative or noncumulative dividends or
other distributions in payable in cash, capital stock or indebtedness of the
Corporation or other property, at such times and in such amounts as are set
forth in the board resolutions establishing such class or series or as are
determined in a manner specified in such resolutions;


 


(2)           are
entitled to a preference with respect to payment of dividends over one or more
other classes and/or series of capital stock of the Corporation:


 


(3)           are
entitled to a preference with respect to any distribution of assets of the
Corporation upon its liquidation, dissolution or winding up over one or more
other classes and/or series of capital stock of the Corporation in such amount
as is set forth in the board resolutions establishing such class or series or
as is determined in a manner specified in such resolutions;


 


(4)           are
redeemable or exchangeable at the option of the Corporation and/or on a
mandatory basis for cash, capital stock or indebtedness of the Corporation or
other property, at such times or upon the occurrence of such events, and at
such prices, as are set forth in the board resolutions establishing such class
or series or as are determined in a manner specified in such resolutions;


 


(5)           are
entitled to the benefits of such sinking fund, if any, as is required to be
established by the Corporation for the redemption and/or purchase of such
shares by the board resolutions establishing such class or series;


 


(6)           are
convertible at the option of the holders thereof into shares of any other class
or series of capital stock of the Corporation, at such times or upon the
occurrence of such events, and upon such terms, as are set forth in the board
resolutions establishing such class or series or as are determined in a manner
specified in such resolutions;


 


(7)           are
exchangeable at the option of the holders thereof for cash, capital stock or
indebtedness of the Corporation or other property, at such times or upon the


 


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occurrence of such events, and at such prices, as are
set forth in the board resolutions establishing such class or series or as are
determined in a manner specified in such resolutions;


 


(8)           are
entitled to such voting rights, if any, as are specified in the board
resolutions establishing such class or series (including, without limiting the
generality of the foregoing, the right to elect one or more directors voting
alone as a single class or series or together with one or more other classes
and/or series of Preferred Stock, if so specified by such board resolutions) at
all times or upon the occurrence of specified events; and


 


(9)           are
subject to restrictions on the issuance of additional shares of Preferred Stock
of such class or series or of any other class or series, or on the reissuance
of shares of Preferred Stock of such class or series or of any other class or
series, or on increases or decreases in the number of authorized shares of
Preferred Stock of such class or series or of any other class or series.


 


Without
limiting the generality of the foregoing authorizations, any of the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions of a class or series of Preferred Stock may be made dependent upon
facts ascertainable outside the board resolutions establishing such class or
series, all to the fullest extent permitted by Delaware Law. Unless otherwise
specified in the board resolutions establishing a class or series of Preferred
Stock, holders of a class or series of Preferred Stock shall not be entitled to
cumulate their votes in any election of directors in which they are entitled to
vote and shall not be entitled to any preemptive rights to acquire shares of
any class or series of capital stock of the Corporation.


 


ARTICLE
6.


 


In furtherance,
and not in limitation of the powers conferred by statute, the board of
directors is expressly authorized to make, amend, alter, change, add to or
repeal bylaws of the Corporation, without any action on the part of the
stockholders. The bylaws made by the directors may be amended, altered,
changed, added to or repealed by the stockholders. Any specific provision in
the bylaws regarding amendment thereof shall be controlling.


 


Election of
directors need not be by written ballot unless the bylaws of the Corporation so
provide.


 


ARTICLE 7.


 


A 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 to
the fullest extent permitted by Delaware Law. This article shall not eliminate
or limit the liability of a director for any act or omission occurring prior to
the effective date of this article.


 


Each person (and
the heirs, executors or administrators of such person) who was or is a party or
is threatened to be made a party to, or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director of the Corporation or is or was serving at


 


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the
request of the Corporation as a director of another corporation, partnership,
joint venture, trust or other enterprise, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by Delaware Law.
The right to indemnification conferred in this article shall also include the
right to be paid by the Corporation the expenses incurred in connection with
any such proceeding in advance of its final disposition to the fullest extent
authorized by Delaware Law. The right to indemnification conferred in this
article shall be a contract right.


 


The rights and
authority conferred in this article shall not be exclusive of any other right
which any person may otherwise have or hereafter acquire.


 


Neither any
amendment, repeal or modification of the foregoing provisions of this article,
nor any adoption of any provision of this certificate or the bylaws of the
Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall adversely affect any right or protection of a
director of the Corporation existing at the time of such amendment, repeal,
adoption or modification.


 


ARTICLE
8.


 


The Corporation
acknowledges that Greenhill Capital Partners, L.P., LLR Equity Partners, L.P.,
and their respective affiliates, and their respective representatives or other
designees serving on the Corporation’s board of directors, (i) identify
investment opportunities in the regular course of their respective financial
sponsorship businesses, (ii) are permitted to have, and may presently or in the
future have, investments or other business relationships with third parties
(including in areas in which the Corporation or any of its subsidiaries may
presently or in the future engage in business), (iii) shall not be prohibited by
virtue of their investments in the Corporation or their service on the
Corporation’s board of directors from engaging in such activities or from
pursuing any business opportunities arising therefrom and (iv) shall be under
no obligation to inform the Corporation of such activities or business
opportunities. The Corporation agrees that any business opportunities of which
Greenhill Capital Partners, L.P., LLR Equity Partners, L.P., or any of their
respective affiliates (including their respective portfolio companies), and
their respective representatives or other designees serving on the
Corporation’s board of directors, may become aware shall not be deemed
corporate opportunities of the Corporation, and the Corporation hereby
expressly renounces, to the fullest extent permitted by Delaware Law, any
interest or expectancy in, or in being offered any opportunity to participate
in, any such business opportunities.


 


ARTICLE 9.


 


The Corporation
reserves the right to amend this Certificate of Incorporation in any manner
permitted by Delaware Law and, with the sole exception of those rights and
powers conferred under the above Articles 7 and 8, all rights and powers
conferred herein on stockholders, directors and officers, if any, are subject
to this reserved power.


 


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IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be duly executed in its corporate name this 11th
day of October, 2001.


 


	
   

  	
  HEARTLAND PAYMENT SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin J.
  Uhle

  	
   

  
	
   

  	
   

  	
  Name: Martin J. Uhle 

  	
   

  
	
   

  	
   

  	
  Title: President

  	
   

  



 


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