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EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
LEARNINGSTAR CORP.
The present name of the Corporation is LearningStar Corp. The
Corporation was incorporated by the filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware on November
6, 2000, under the name S-E Educational Holdings Corp. This Restated Certificate
of Incorporation of the Corporation, which both restates and further amends the
provisions of the Corporation's Certificate of Incorporation, was duly adopted
in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL") and by the unanimous
written consent of its stockholders in accordance with Section 228 of the DGCL.
The Certificate of Incorporation of the Corporation is hereby amended and
restated to read in its entirety as follows:
FIRST: The name of the Corporation is LearningStar Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite
400, in the City of Wilmington, County of New Castle, State of Delaware. The
name of its registered agent at that address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the DGCL.
FOURTH: A. Capital Stock. The total number of shares of capital stock
which the Corporation shall have authority to issue is 16,000,000 shares (the
"Capital Stock"), consisting of 15,000,000 shares of Common Stock, par value
$.01 per share (the "Common Stock"), and 1,000,000 shares of Preferred Stock,
par value of $.01 per share (the "Preferred Stock").
B. Common Stock. The shares of authorized Common Stock of the
Corporation shall be identical in all respects and shall have equal rights and
privileges.
C. Preferred Stock. Shares of Preferred Stock may be issued from time to
time in one or more series, as provided for herein or as provided for by the
Board of Directors as permitted hereby. All shares of Preferred Stock shall be
of equal rank and shall be identical, except in respect of the terms fixed
herein for the series provided for herein or fixed by the Board of Directors for
any series provided for by the Board of Directors as permitted hereby.
The Board of Directors is hereby authorized, by resolution or
resolutions, to establish, out of the unissued shares of Preferred Stock not
then allocated to any series of Preferred Stock, additional series of Preferred
Stock. Before any shares of any such additional series are issued, the Board of
Directors shall fix and determine, and is hereby expressly empowered to fix and
determine, by resolution or resolutions, the number of shares constituting such
series and the distinguishing characteristics and the relative voting powers,
rights, preferences, privileges and immunities, if any, and any qualifications,
limitations or restrictions thereof, of the shares
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thereof, so far as not inconsistent with the provisions of this Article FOURTH
and a certificate of said resolution or resolutions (a "Certificate of
Designation") shall be filed in accordance with the DGCL. Without limiting the
generality of the foregoing, the Board of Directors may fix and determine:
1. The designation of such series and the number of shares which shall
constitute such series of such shares, which number the Board of Directors may
thereafter (except where otherwise provided in the Certificate of Designation)
increase or decrease (but not below the number of shares thereof then
outstanding);
2. The rate of dividend, if any, payable on shares of such series;
3. Whether the shares of such series shall be cumulative, non-cumulative or
partially cumulative as to dividends, and the dates from which any cumulative
dividends are to accumulate;
4. Whether the shares of such series may be redeemed, and, if so, the price or
prices at which and the terms and conditions on which shares of such series may
be redeemed;
5. The amount payable upon shares of such series in the event of the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the
Corporation;
6. The sinking fund provisions, if any, for the redemption of shares of such
series;
7. The voting rights, if any, of the shares of such series;
8. Whether the shares of the series shall be convertible into or exchangeable
for shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specifications of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, and adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made;
9. The terms and conditions, if any, on which shares of such series may be
converted into shares of capital stock of the Corporation of any other class or
series;
10. Whether the shares of such series are to be preferred over shares of capital
stock of the Corporation of any other class or series as to dividends, or upon
the voluntary or involuntary dissolution, liquidation, or winding up of the
affairs of the Corporation, or otherwise;
11. Restrictions on the issuance of shares of the same series or of any other
class or series; and
12. Any other characteristics, preferences, limitations, rights, privileges,
immunities or terms not inconsistent with the provisions of this Article FOURTH.
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D. Voting Power for Holders of Common and Preferred Stock. Except as
otherwise provided in this Restated Certificate of Incorporation, each holder of
Common Stock shall be entitled to one vote for each share of Common Stock held
by such holder on all matters submitted to stockholders for a vote and each
holder of any series of Preferred Stock shall be entitled to such number of
votes for each share held by such holder as may be specified herein or in the
Certificate of Designation in respect thereof.
Except as otherwise provided by law, the presence, in person or by
proxy, of the holders of record of issued and outstanding shares of Capital
Stock entitling the holders thereof to cast a majority of the votes entitled to
be cast by the holders of issued and outstanding shares of Capital Stock
entitled to vote shall constitute a quorum at all meetings of the stockholders.
FIFTH: The Board of Directors shall have the power to make, adopt,
alter, amend, change or repeal the bylaws of the Corporation (as may be amended
from time to time, the "Bylaws") by resolution adopted by the affirmative vote
of a majority of the entire Board of Directors, subject to any law or Bylaw
provision requiring the affirmative vote of a larger percentage of the members
of the Board of Directors. In addition to any other vote required by law, the
affirmative vote of the holders of at least 75% of the voting power of all
outstanding shares of the Corporation then entitled to vote generally in the
election of directors, voting together as a single class shall be required to
make, adopt, alter, amend, change or repeal the Bylaws of the Corporation or any
provision of this Restated Certificate of Incorporation.
SIXTH: A. Number; Election and Terms of Directors. Subject to Section C
of this Article SIXTH, the number of directors of the Corporation which shall
constitute the entire Board shall be not less than three nor more than fifteen
directors. Within such limits, the exact number of directors constituting the
entire Board shall be fixed from time to time pursuant to a resolution adopted
by a majority of the total number of directors which the Corporation would have
if there were no vacancies. Subject to Section C of this Article SIXTH, the
Board of Directors shall be divided into three classes, designated Class I,
Class II and Class III. Class I, Class II and Class III shall each initially
consist of three directors. Class I directors shall be initially elected for a
term expiring at the first annual meeting of stockholders of the Corporation
following the date hereof, Class II directors shall be initially elected for a
term expiring at the second annual meeting of stockholders of the Corporation
following the date hereof, and Class III directors shall be initially elected
for a term expiring at the third annual meeting of stockholders of the
Corporation following the date hereof. At each annual meeting of stockholders,
beginning in 2001, successors to the class of directors whose term expires at
that annual meeting shall be elected for a three-year term A director shall hold
office until the annual meeting for the year in which his term expires and until
his successor shall be elected and shall qualify, subject, however, to such
director's prior death, resignation, retirement, disqualification or removal
from office. Unless and except to the extent that the Bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
B. Vacancies and Newly Created Directorships. Subject to Section C of
this Article SIXTH unless the Board of Directors otherwise determines, vacancies
resulting from death, resignation, retirement, disqualification, removal from
office or other cause, and newly-created
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directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors. Any director so
chosen pursuant to the preceding sentence shall hold office for the remainder of
the full term expiring at the annual meeting of the stockholders at which the
term of office of the class to which such director has been elected expires and
until such director's successor shall have been duly elected and qualified. If
the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class. In
no case will a decrease in the number of authorized directors constituting the
Board of Directors shorten the term of any incumbent director.
C. Removal. Any director may be removed from office, but only for cause,
and any such removal shall require, in addition to any other vote required by
law, the affirmative vote of the holders of at least 75% of the voting power of
all shares of Capital Stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
D. Rights of Holders of Preferred Stock. Notwithstanding the foregoing,
whenever the holders of any one or more series of Preferred Stock issued by the
Corporation shall have the right, voting separately as a class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, removal, filling of vacancies and other features of such
directorships shall be governed by the terms of this Restated Certificate of
Incorporation and the Certificate of Designation applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this Article
SIXTH unless expressly provided by such terms.
SEVENTH: Special meetings of the stockholders of the Corporation, for
any purpose or purposes, may only be called at any time by a majority of the
entire Board of Directors or by either the Chairman or the Chief Executive
Officer of the Corporation.
EIGHTH: No stockholder action may be taken except at a duly called
annual or special meeting of stockholders of the Corporation and stockholders of
the Corporation may not take any action by written consent in lieu of a meeting
of stockholders.
NINTH: A. Indemnification. The Corporation shall indemnify (A) its
directors and officers, whether serving the Corporation or, at its request, any
other entity, to the fullest extent required or permitted by the DGCL now or
hereafter in force, and shall advance expenses to the fullest extent permitted
by law and (B) other employees and agents to such extent as shall be expressly
authorized by the Board of Directors or the Bylaws and as permitted by law. The
foregoing rights of indemnification shall not be exclusive of any other rights
to which those seeking indemnification may be entitled. The Board of Directors
may take such action as is necessary to carry out these indemnification
provisions and is expressly empowered to adopt, approve and amend from time to
time such bylaws, resolutions or contracts implementing such provisions or such
further indemnification arrangements as may be permitted by law. No amendment of
this Restated Certificate of Incorporation or repeal of any of its provisions
shall
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limit or eliminate the right to indemnification provided under this Article
NINTH with respect to any acts or omissions occurring prior to such amendment or
repeal.
TENTH: To the fullest extent permitted by the DGCL, as the same exists
or may hereafter be amended, no director of this Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. No amendment of this Restated Certificate of
Incorporation or repeal of any of its provisions shall limit or eliminate any
right or protection of any director of this Corporation under this Article TENTH
for or with respect to any acts or omissions of such director occurring prior to
such amendment for repeal.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation and
other provisions authorized by the laws of the State of Delaware in force at
that time may be added or inserted, in the manner now or thereafter prescribed
by statute, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to this reservation.
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IN WITNESS WHEREOF, said Corporation has caused this Restated
Certificate of Incorporation to be signed by Albert Noyes, its Chief Executive
Officer on this 27th day of April, 2001.
LEARNINGSTAR CORP.
/s/ Al Noyes
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Name: Al Noyes
Title: Chief Executive Officer
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