AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NOBEL EDUCATION DYNAMICS, INC.
FIRST: The name of the Corporation is Nobel Education Dynamics, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is the Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801. The name of the Corporation's registered agent at such address
is Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The amount of total authorized capital stock of the Corporation is
Sixty Million (60,000,000) shares, divided into Fifty Million (50,000,000)
shares of Common Stock, par value $.001 per share, and Ten Million (10,000,000)
shares of undesignated Preferred Stock, par value $.001 per share. Each one (1)
share of the Corporation's Common Stock issued and outstanding on the date that
this Amendment is filed with the Office of the Secretary of State of Delaware
shall be and hereby is automatically changed without further action into one-
fourth (1/4) fully paid and nonassessable share of the Corporation's Common
Stock, provided that no fractional shares shall be issued pursuant to such
change. The Corporation shall pay to each stockholder who would otherwise be
entitled to a fractional share, as a result of such change, an amount equal to
the value of such fractional share, based upon the average daily closing price
per share of the Corporation's Common Stock on the Nasdaq Small Cap Market for
the ten (10) trading days preceding the effective date of this amendment.
No stockholder shall have any preemptive right to subscribe to or purchase
any issue of stock or other securities of the Corporation, or any treasury stock
or other treasury securities.
The powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
are as follows:
PART I
UNDESIGNATED PREFERRED STOCK
1. Issuance in Series. Shares of Preferred Stock may be issued in
-------------------
one or more series at such time or times, and for such consideration or
considerations as the Board of Directors may determine. All shares of any one
series of any such Preferred Stock will be identical with each other in all
respects, except that shares of one series issued at different times may differ
as to dates from which dividends thereon may be cumulative. All series will
rank equally and be identical in all respects, except as permitted by the
following provisions of Section 2.
2. Authority of the Board with Respect to Series. The Board of
----------------------------------------------
Directors is authorized at any time and from time to time, subject to
limitations prescribed by law and the provisions of this Article FOURTH, to
provide for the issuance of shares of Preferred Stock in one or more series and
by filing a certificate pursuant to the applicable law of the State of Delaware
to establish the number of shares to be included in each such series, and to fix
the powers, designations, preferences and relative, participating, optional or
other special rights and qualifications, limitations or restrictions thereof as
are stated and expressed in the resolution or resolutions providing for the
issue thereof adopted by the Board of Directors, and as are not stated and
expressed in the Certificate of Incorporation including, but not limited to,
determination of any of the following:
(a) the distinctive serial designation and the number of shares
constituting a series;
(b) the dividend rate or rates of the shares of a series, whether
dividends are cumulative and, if so, from which date, the payment date or dates
for dividends, the relative rights of priority, if any, and the participating or
other special rights, if any, with respect to dividends;
(c) the voting powers, full or limited, if any, of the shares of the
series;
(d) whether the shares of the series are redeemable and, if so, the
terms and conditions on which the shares may be redeemed, including the date or
dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
(e) the amount or amounts payable upon the shares of a series in the
event of voluntary or involuntary liquidation,
2
dissolution or winding up of the Corporation prior to any payment or
distribution of the assets of the Corporation to any other class or series of
the same or any other class or classes of stock of the Corporation ranking
junior to that series of Preferred Stock;
(f) whether the shares of a series are entitled to the benefit of a
sinking or retirement fund to be applied to the purchase or redemption of shares
of that series and, if so entitled, the amount of the fund and the manner of its
application, including the price or prices at which the shares may be redeemed
or purchased through the application of the fund;
(g) whether the shares of a series are convertible into, or
exchangeable for, shares of any other class or series of the same or any other
class or classes of stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rates of exchange, and the
adjustments thereof, if any, at which the conversion or exchange may be made,
and any other terms and conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers, and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions of a series, as the Board of Directors may deem advisable and as
are not inconsistent with the provisions of this Certificate of Incorporation.
3. Dividends. Before any dividends on any class or classes of stock
----------
of the Corporation ranking junior to the Preferred Stock (other than dividends
payable in shares of any class or classes of stock of the Corporation ranking
junior to the Preferred Stock) may be declared or paid or set apart for payment,
the holders of shares of Preferred Stock of each series are entitled to such
cash dividends, but only when and as declared by the Board of Directors out of
funds legally available therefor, as they may be entitled to in accordance with
the resolution or resolutions adopted by the Board of Directors providing for
the issue of the series, payable on such dates in each year as may be fixed in
the resolution or resolutions. The term "class or classes of stock of the
Corporation ranking junior to the Preferred Stock" means the Common Stock and
any other class or classes of stock of the Corporation hereafter authorized
which rank junior to the Preferred Stock as to dividends or upon liquidation,
dissolution or winding up of the Corporation.
4. Reacquired Shares. Shares of Preferred Stock which have been
------------------
issued and reacquired in any manner by the Corporation (excluding, until the
Corporation elects to retire them, shares which are held as treasury shares but
including shares redeemed, shares purchased and retired and shares which gave
been converted
3
into shares of Common Stock) will have the status of authorized and unissued
shares of Preferred Stock and may be reissued.
5. Voting Rights. Unless and except to the extent otherwise required
--------------
by law or provided in the resolution or resolutions of the Board of Directors
creating any series of Preferred Stock pursuant to this Part I, the holders of
Preferred Stock shall have no voting power with respect to any matter
whatsoever.
PART II
COMMON STOCK
1. Junior to Preferred Stock. The Common Stock shall rank junior to
--------------------------
the Preferred Stock with respect to payment of dividends and distribution on
liquidation, dissolution or winding up of the Corporation.
2. Voting Rights. Except as expressly provided by law, or as
--------------
otherwise provided in Part I above, all voting rights shall be vested in the
holders of the Common Stock. At each meeting of stockholders of the
Corporation, each holder of Common Stock shall be entitled to one vote for each
such share on each matter to come before the meeting, except as otherwise
provided in this Certificate of Incorporation or by law.
3. Dividends. After all accumulated and unpaid dividends upon all
----------
shares of Preferred Stock for all previous dividend periods shall have been paid
and full dividends on all shares of Preferred Stock for the then current
dividend period shall have been declared and a sum sufficient for the payment
thereof set apart therefor, and after or concurrently with the setting aside of
any and all amounts then or theretofore required to be set aside for any sinking
fund obligation or obligation of a similar nature in respect of any class or
series of Preferred Stock or any other class or series of stock having
preferential dividend rights, then and not otherwise, dividends may be declared
upon and paid to the holders of the Common Stock to the exclusion of the holders
of the Preferred Stock.
4. Rights Upon Liquidation. In the event of voluntary or involuntary
------------------------
liquidation or dissolution or winding up of the Corporation, after payment in
full of amounts, if any, required to be paid to the holders of shares of stock
having preferential liquidation rights, including without limitation the holders
of the Preferred Stock, the holders of the Common Stock shall be entitled, to
the exclusion of the holders of shares of stock having preferential liquidation
rights, including without limitation the holders of the Preferred Stock, to
share ratably in all remaining assets of the Corporation.
4
FIFTH: In furtherance and not in limitation of the general powers
conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to make, alter or repeal the By-Laws of the Corporation,
except as specifically stated therein.
SIXTH: 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 $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 $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 arrangement 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.
SEVENTH: The term of existence of the Corporation shall be perpetual.
EIGHTH: Any director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares entitled to
vote at an election of directors.
NINTH: The election of directors shall be conducted in the manner
prescribed in the By-Laws of the Corporation and need not be by ballot.
TENTH: A director of the Corporation shall have no personal liability
to the Corporation or to its stockholders for monetary damages for breach of
fiduciary duty as a director except to the extent that Section 102 (b) (7) (or
any successor provision) of the Delaware General Corporation Law, as amended
from time to time, expressly provides that the liability of a director may not
be eliminated or limited.
5