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EXHIBIT 3.1
[NOTE: THE FOLLOWING RESTATED CERTIFICATE OF INCORPORATION HAS BEEN
FURTHER RESTATED, FOR PURPOSES OF FILING THE SAME WITH THE SECURITIES
AND EXCHANGE COMMISSION ONLY, TO GIVE EFFECT TO THE CERTIFICATE OF
AMENDMENT OF THE RESTATED CERTIFICATE OF INCORPORATION OF SOFTKEY
INTERNATIONAL INC. FILED WITH THE SECRETARY OF STATE OF THE STATE OF
DELAWARE ON MAY 25, 1995.]
RESTATED CERTIFICATE OF INCORPORATION
OF
SOFTKEY INTERNATIONAL INC.
SoftKey International Inc. a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), the
original Certificate of Incorporation of which was filed with the Secretary of
State of the State of Delaware on October 1, 1986 under the nam Orporcim
Corporation, HEREBY CERTIFIES that this Restated Certificate of Incorporation
restating, integrating and amending its Certificate of Incorporation was duly
adopted by its Board of Directors in accordance with Sections 242 and 245 of
the general Corporation Law of the State of Delaware.
1. NAME. The name of the Corporation is "SoftKey International Inc."
2. REGISTERED OFFICE. The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
3. PURPOSES. 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 the State of Delaware.
4. Capital Stock
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4.1 AUTHORIZED CAPITAL STOCK. The total number of shares of
all classes of capital stock that the Corporation is authorized to issue is
65,000,001, of which 60,000,000 shares are to be designated shares of "Common
Stock", each such share of Common Stock to have a par value of $0.01, 5,000,000
shares are to be designated shares of "Preferred Stock", each such share of
Preferred Stock to have a par value of $0.01, and one share is to be designated
the share of "Special Voting Stock," such share of Special Voting Stock to have
a par value of $1.00.
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4.2 Rights, Privileges and Restrictions.
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4.2.1 COMMON STOCK AND SPECIAL VOTING STOCK. The
rights, privileges and restrictions of the Common Stock and the Special Voting
Stock shall be set forth in this Section 4.
4.2.2 PREFERRED STOCK. The Board of Directors is
expressly authorized to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such
class or series such voting powers, full or limited, or no voting powers, and
such distinctive designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of
such class or series and as may be permitted by the General Corporation Law of
the State of Delaware, including, without limitation, the authority to provide
that any such class or series may be (i) subject to redemption at such time or
times and at such price or prices; (ii) entitled to receive dividends (which
may be cumulative or non-cumulative) at such rates, on such conditions, and at
such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes of stock, or of any other series of the
same or any other class or classes of stock, of the Corporation; (iii) entitled
to such rights upon the dissolution of, or upon any distribution of the assets
of, the Corporation; or (iv) convertible into, or exchangeable for, shares of
any other class or classes of stock, or of any other series of the same or any
other class or classes of stock, of the Corporation at such price or prices or
at such rates of exchange and with such adjustments; all as may be stated in
such resolution or resolutions.
4.3 Voting Rights of Common Stock and Special Voting Stock.
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4.3.1 GENERAL. Except as otherwise required by law
or this Restated Certificate, (i) each holder of record of Common Stock shall
have one vote in respect of each share of stock held by the holder on the books
of the Corporation, and (ii) the holder of record of the share of Special
Voting Stock shall have a number of votes equal to the number of outstanding
Exchangeable Non-Voting Shares ("Exchangeable Shares") of SoftKey Software
Products Inc. from time to time which are not owned by the Corporation, any of
its subsidiaries or any person directly or indirectly controlled by or under
common control of the Corporation, in each case for the election of directors
and on all matters submitted to a vote of
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stockholders of the Corporation. Any vacancy in the Board of Directors
occurring because of the death, resignation or removal of a director elected by
the holders of Common Stock and Special Voting Stock shall be filled by the
vote or written consent of the holders of such Common Stock and Special Voting
Stock or, in the absence of action by such holders, such vacancy shall be
filled by action of the remaining directors. A director elected by the holders
of Common Stock and Special Voting Stock may be removed from the Board of
Directors with or without cause by the vote or consent of the holders of such
Common Stock and Special Voting Stock, as provided by the Delaware General
Corporation Law. For the purposes hereof, "control" (including the correlative
meanings, the terms "controlled by" and "under common control of") as applied
to any person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that person
through the ownership of voting securities, by contract or otherwise.
4.3.2 COMMON STOCK AND SPECIAL VOTING STOCK IDENTICAL
IN VOTING. In respect of all matters concerning the voting of shares, the
Common Stock and the Special Voting Stock shall vote as a single class and
such voting rights shall be identical in all respects.
4.4 LIQUIDATION. In the event of any liquidation,
dissolution or winding up of the Corporation, and subject to any prior rights
of holders of shares of Preferred Stock, the holders of Common Stock shall be
entitled to receive, pro rata, all of the remaining assets of the Corporation
available for distribution to its stockholders and the holders of Special
Voting Stock shall not be entitled to receive any such assets.
4.5 DIVIDENDS. The holders of shares of Common Stock shall
be entitled to receive, when, as and if declared by the Board of Directors, out
of the assets of the Corporation which are by law available therefor, dividends
payable either in cash, in property or in shares of capital stock and the
holders of Special Voting Stock shall not be entitled to receive any such
dividends.
4.6 SPECIAL VOTING STOCK. (a) Pursuant to the terms of that
certain Combination Agreement, dated as of August 17, 1993, as amended and
restated, by and among the Corporation, SoftKey Software Products Inc., an
Ontario corporation, Spinnaker Software Corporation, a Minnesota corporation
and SSC Acquisition Corporation, a Delaware corporation, one share of Special
Voting Stock is being issued to the trustee (the "Trustee") under the Voting
and Exchange Trust Agreement, dated as of February 4, 1994,
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by and between the Corporation, SoftKey Software Products Inc. and the Trustee.
(b) The holder of the share of Special Voting Stock is
entitled to exercise the voting rights attendant thereto in such manner as
such holder desires.
(c) At such time as the Special Voting Stock has no
votes attached to it because there are no Exchangeable Shares of SoftKey
outstanding which are not owned by the Corporation, any of its subsidiaries or
any person directly or indirectly controlled by or under common control of the
Corporation, and there are no shares of stock, debt, options or other
agreements of SoftKey Software Products Inc. which could give rise to the
issuance of any Exchangeable Shares of SoftKey Software Products Inc. to any
person (other than the Corporation, any of its subsidiaries or any person
directly or indirectly controlled by or under common control of the
Corporation), the Special Voting Stock shall be cancelled.
5. MANAGEMENT OF BUSINESS. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, and the
directors need not be elected by ballot unless required by the Bylaws of the
Corporation.
6. BY-LAWS. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors and the stockholders of the Corporation are
each expressly authorized to adopt, amend, or repeal the Bylaws of the
Corporation.
7. ARRANGEMENT 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
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compromise or arrangement and to any reorganization of this Corporation as
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.
8. Limitation of Liability and Indemnification of Directors.
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8.1 ELIMINATION OF CERTAIN LIABILITIES OF DIRECTORS. 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,
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 General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this Section to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended. Any
repeal or modification of this Section by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
8.2 Indemnification and Insurance.
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8.2.1 RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative, or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer, of the Corporation or is or was serving at the request of
the Corporation, as a director, officer, employee, or agent of another
corporation or of a partnership, joint venture, trust, or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee, or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to its fullest extent authorized by the Delaware
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General Corporation Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability, and loss (including attorneys' fees, judgments, fines,
Employee Retirement Income Security Act of 1974 excise taxes or penalties, and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith, and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of his or her heirs, executors, and administrators;
provided, however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred
in this Section 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
General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, 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 advance if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
8.2.2 NON-EXCLUSIVITY OF RIGHTS. The right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in this Section shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of this Restated Certificate, Bylaw, agreement,
vote of stockholders, or disinterested directors or otherwise.
8.2.3 INSURANCE. The Corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee, or agent
of the Corporation or another corporation, partnership, joint venture, trust,
or other enterprise
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against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability,
or loss under the Delaware General Corporation Law.
9. AMENDMENTS. The Corporation reserves the right to
amend and repeal any provision contained in this Restated Certificate, and to
take other corporate action to the extent and in the manner now or hereafter
permitted or prescribed by the laws of the State of Delaware. All rights
herein conferred are granted subject to this reservation.
IN WITNESS WHEREOF, SoftKey International Inc. has caused this
Restated Certificate of Incorporation to be signed in its name and on its
behalf and attested on this 4th day of February, 1994.
SOFTKEY INTERNATIONAL INC.
By /S/ Michael J. Perik
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Name: Michael J. Perik
Title: Chairman
ATTEST:
By /S/ David L. Lewis
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Name: David L. Lewis
Title: Secretary
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