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EXHIBIT 3.1
COMPOSITE AS OF SEPTEMBER 17, 2001
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CAREER EDUCATION CORPORATION
(originally incorporated on January 5, 1994)
Career Education Corporation (the "CORPORATION"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"), does hereby certify that this Amended and Restated
Certificate of Incorporation of the Corporation set forth below has been duly
adopted in accordance with Sections 242 and 245 of the DGCL:
ARTICLE I
The name of the corporation is Career Education Corporation (the
"COMPANY").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Corporation Trust Center, Wilmington, County of New
Castle, Delaware 19801. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The nature of the business to be conducted or promoted is to engage in any
lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
A. AUTHORIZED CAPITAL STOCK.
Effective upon the filing of this Certificate of Amendment to the
Amended and Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware, the Corporation shall have authority to
issue the following classes of stock, in the number of shares and at the
par value as indicated opposite the name of the class:
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<Table>
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NUMBER OF
SHARES PAR VALUE
CLASS AUTHORIZED PER SHARE
------------------------- -------------------- ------------------
Common Stock 150,000,000 $ 0.01
Preferred Stock 1,000,000 $ 0.01
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B. DESIGNATIONS AND RIGHTS.
The designations and the powers, preferences and relative,
participating, optional or other rights of the capital stock and the
qualifications, limitations or restrictions thereof are as follows:
1. COMMON STOCK.
a. VOTING RIGHTS: Except as otherwise required by law or
expressly provided herein, the holders of shares of Common Stock shall
be entitled to one vote per share on each matter submitted to a vote
of the stockholders of the Corporation.
b. DIVIDENDS: Subject to the rights of the holders, if any, of
Preferred Stock, the holders of Common Stock shall be entitled to
receive dividends at such times and in such amounts as may be
determined by the Board of Directors of the Corporation.
c. LIQUIDATION RIGHTS: In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and
other liabilities of the Corporation and the preferential amounts to
which the holders of any outstanding shares of Preferred Stock shall
be entitled upon dissolution, liquidation or winding up, the assets of
the Corporation available for distribution to stockholders shall be
distributed ratably among the holders of the shares of Common Stock.
2. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series.
Subject to the other provisions of this Certificate of Incorporation and
any limitations prescribed by law, the Board of Directors is authorized to
provide for the issuance of and issue shares of the Preferred Stock in
series and, by filing a certificate pursuant to the laws of the State of
Delaware, to establish from time to time the number of shares to be
included in each such series and to fix the designation, powers,
preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a
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majority of the Common Stock, without a vote of the holders of any
Preferred Stock, or of any series thereof, unless a vote of any such
holders is required pursuant to the certificate or certificates
establishing such series of Preferred Stock.
ARTICLE V
The business and affairs of the Corporation shall be managed by or under
the direction of a board of directors consisting of not less than five (5) nor
more than nine (9) directors. The exact number shall be determined from time to
time by resolution adopted by the affirmative vote of a majority of the
directors in office at the time of adoption of such resolution. Initially, the
number of directors shall be seven (7) and shall consist of the following
persons: Robert E. Dowdell, Wallace O. Laub, Thomas B. Lally, John M. Larson,
Keith K. Ogata, Patrick K. Pesch and Todd H. Steele.
The directors shall be divided into three classes, Class I, Class II and
Class III with each class having either two or three members. Class I shall
initially consist of the following directors: Messrs. Dowdell and Pesch. Class
II shall initially consist of the following directors: Messrs. Laub, Ogata and
Steele. Class III shall initially consist of the following directors: Messrs.
Lally and Larson. The initial term of office of the Class I, Class II and Class
III directors shall expire at the annual meeting of stockholders in 1999, 2000
and 2001, respectively. Beginning in 1999, at each annual meeting of
stockholders, successors to the class of directors whose term expires at that
annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes by the Board of Directors so as to maintain the number of directors in
each class as nearly equal as is reasonably 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 directors,
shorten the term of any incumbent director, even though such decrease may result
in an inequality of the classes until the expiration of such term. A director
shall hold office until the annual meeting of stockholders in the year in which
his or her term expires and until his or her successor shall be elected and
qualified subject, however, to prior death, resignation, retirement or removal
from office. Directors may only be removed for cause, except as otherwise
provided by law, by the holders of at least sixty-six and two-thirds percent (66
2/3%) of the shares entitled to vote at an election of directors. Except as
required by law or the provisions of this Certificate of Incorporation, all
vacancies on the Board of Directors and newly-created directorships shall be
filled by the Board of Directors. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall have the same
remaining term as that of his or her predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation and any resolutions of the Board of
Directors applicable thereto, and such directors so elected shall not be divided
into classes pursuant to this Article V. Notwithstanding anything to the
contrary contained in this Certificate of Incorporation, the affirmative vote of
the holders of at least eighty percent (80%) of the voting power of the shares
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entitled to vote generally in the election of directors shall be required to
amend, alter or repeal, or to adopt any provision inconsistent with, this
Article V.
ARTICLE VI
A. WRITTEN CONSENT. Any action required or permitted to be taken by the
stockholders of the Corporation shall be effected only at a duly called annual
or special meeting of stockholders of the Corporation and shall not be effected
by consent in writing by the holders of outstanding stock pursuant to Section
228 of the DGCL or any other provision of the DGCL.
B. SPECIAL MEETINGS. Special meetings of stockholders of the Corporation
may be called upon not less than ten (10) nor more than sixty (60) days' written
notice by the Board of Directors, pursuant to a resolution approved by a
majority of the Board of Directors.
C. AMENDMENT. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
eighty percent (80%) of the shares entitled to vote generally in the election of
directors shall be required to amend, alter or repeal, or to adopt any provision
inconsistent with, this Article VI.
ARTICLE VII
In furtherance and not in limitation of the power conferred by statute, the
Board of Directors is expressly authorized to make, alter, amend or repeal the
By-laws of the Corporation. The By-laws of the Corporation may be altered,
amended, or repealed, or new By-laws may be adopted, by the Board of Directors
in accordance with the preceding sentence or by the vote of the holders of at
least eighty percent (80%) of the voting power of the shares of the Corporation
entitled to vote generally in the election of directors at an annual or special
meeting of stockholders, provided that, if such alteration, amendment, repeal or
adoption of new By-laws is effected at a duly called special meeting, notice of
such alteration, amendment, repeal or adoption of new By-laws is contained in
the notice of such special meeting.
ARTICLE VIII
A director of the Corporation shall not, in the absence of fraud, be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor in the absence of fraud shall a
director of the Corporation be liable to account to the Corporation for any
profit realized by him from or through any transaction or contract of the
Corporation by reason of the fact that such director, or any firm of which such
director is a member or any corporation of which such director is an officer,
director or stockholder, was interested in such transaction or contract if such
transaction or contract has been authorized, approved or ratified in a manner
provided in the DGCL for authorization, approval or ratification of transactions
or contracts between the Corporation and one or more of its directors or
officers or between the Corporation and any other corporation, partnership,
association or other
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organization in which one or more of its directors or officers are directors or
officers or have a financial interest.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware as the By-laws of the Company may provide. The books of the Corporation
may be kept outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors of the Corporation or in
the By-laws of the Corporation. Election of directors need not be by written
ballot unless the By-laws of the Corporation so provide.
ARTICLE X
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the 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 the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of the DGCL or on the application of trustees in dissolution or of
any receiver or receivers appointed for the Corporation under the provisions of
Section 279 of the DGCL, order a meeting of the creditors or class of creditors
and/or the stockholders or class of stock of the Corporation, as the case may
be, to be summoned in such manner as said court directs. If a majority in number
representing three-fourths (3/4) of the value of the creditors or class of
creditors and/or the stockholders or class of stockholders of the Corporation,
as the case may be, agree to any compromise or arrangement or to any
reorganization of the Corporation as a consequence of such compromise or
arrangement, said compromise or arrangement of said reorganization shall, if
sanctioned by the Court to which 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 the Corporation, as the case may be, and also on the
Corporation.
ARTICLE XI
The Board of Directors of the Corporation may adopt a resolution proposing
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute.
ARTICLE XII
A. INDEMNIFICATION OF OFFICERS AND DIRECTORS: The Corporation shall:
1. indemnify, to the fullest extent permitted by the DGCL, any
present or former director of the Corporation and any present or former
officer, employee or agent of the Corporation selected by the Board of
Directors for indemnification, such selection to be evidenced by an
indemnification agreement, who was or is a party or is threatened
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to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that such person is or was a director, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or if
such person has previously been designated for indemnification by a
resolution of the Board of Directors, is or was an officer, employee or
agent of the Corporation, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that such person's
conduct was unlawful; and
2. indemnify any present or former director of the Corporation and
any present or former officer, employee or agent of the Corporation
selected by the Board of Directors for indemnification, such selection to
be evidenced by an indemnification agreement, who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was a director,
or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or if such person has previously been
designated for indemnification by a resolution of the Board of Directors,
is or was an officer, employee or agent of the Corporation, against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to, the Corporation, unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper; and
3. indemnify any present or former director or officer or any
present or former employee or agent of the Corporation selected by the
Board of Directors for indemnification, such selection to be evidenced by
an indemnification agreement, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith, to
the extent that such person has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in Article
XII.A.1. and 2., or in defense of any claim, issue or matter therein; and
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4. make any indemnification under Article XII.A.1. and 2. (unless
ordered by a court) only as authorized in the specific case upon a
determination that indemnification of the present or former director,
officer, employee or agent is proper in the circumstances because such
director, officer, employee or agent has met the applicable standard of
conduct set forth in Article XII.A.1. and 2. Such determination shall be
made, with respect to a person who is an officer or director at the time of
such determination, (a) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even if less than a quorum, or
(b) by a committee of such directors designated by a majority vote of such
directors, even if less than a quorum, or (c) if there are no such
directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (d) by the stockholders of the Corporation; and
5. pay expenses incurred by a director or officer in defending a
civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such director or officer
is not entitled to be indemnified by the Corporation as authorized in this
Article XII. Notwithstanding the foregoing, the Corporation shall not be
obligated to pay expenses incurred by a director or officer with respect to
any threatened, pending, or completed claims, suits or actions, whether
civil, criminal, administrative, investigative or otherwise
("Proceedings"), initiated or brought voluntarily by such director or
officer and not by way of defense (other than Proceedings brought to
establish or enforce a right to indemnification under the provisions of
this Article XII, unless a court of competent jurisdiction determines that
each of the material assertions made by such director or officer in such
Proceedings were not made in good faith or were frivolous). The Corporation
shall not be obligated to indemnify such director or officer for any amount
paid in settlement of a Proceeding covered hereby without the prior written
consent of the Corporation to such settlement; and
6. not deem the indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this Article XII as
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-law, agreement or vote
of stockholders or disinterested directors, or otherwise, both as to action
in such director's or officer's official capacity and as to action in
another capacity while holding such office; and
7. have the right, authority and power to purchase and maintain
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
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article XII; and
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8. deem the provisions of this Article XII to be a contract between
the Corporation and each director, or appropriately designated officer,
employee or agent who serves in such capacity at any time while this
Article XII is in effect, and any repeal or modification of this Article
XII shall not affect any rights or obligations then existing with respect
to any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole
or in part upon such state of facts. The provisions of this Article XII
shall not be deemed to be a contract between the Corporation and any
directors, officers, employees or agents of any other corporation (the
"Second Corporation") which shall merge into or consolidate with the
Corporation when the Corporation shall be the surviving or resulting
corporation, and any such directors, officers, employees or agents of the
Second Corporation shall be indemnified to the extent required under the
DGCL only at the discretion of the board of Directors of the Corporation;
and
9. continue the indemnification and advancement of expenses provided
by, or granted pursuant to, this Article XII, unless otherwise provided
when authorized or ratified, as to a person who has ceased to be a
director, officer, employee or agent of the Corporation, and the
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article XII shall inure to the benefit of the heirs,
executors and administrators of such a person.
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B. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS: No director of the
Corporation shall 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 DGCL, as the same exists or hereafter may be amended, or (iv)
for any transaction from which the director derived an improper personal
benefit. If the DGCL is amended to authorize the further elimination or
limitation of liability of directors, then the liability of a director of the
Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended DGCL.
Any repeal or modification of this Article XII by the stockholders of the
Corporation shall be prospective only and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by its President and Secretary on
January 30, 1998.
CAREER EDUCATION CORPORATION
By: /s/ John M. Larson
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John M. Larson
President, Chief Executive Officer
and Secretary
Attest:
/s/ William A. Klettke
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William A. Klettke
Senior Vice President, Chief
Financial Officer and Treasurer
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