Attached files
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
ARCHIPELAGO LEARNING, INC.
Archipelago Learning, Inc. (the Corporation), a corporation organized and existing under and by
virtue of the General Corporate Law of the State of Delaware (the DGCL) hereby certifies as
follows:
A. The Corporations original Certificate of Incorporation was filed with the Secretary of
Sate of the State of Delaware on the 4th day of August, 2009.
B. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with
Section 241 and 245 of the DGCL, and restates, integrates and further amends the provisions of the
Corporations Certificate of Incorporation.
C. The text of the Certificate of Incorporation is amended and restated in its entirety to
read as set forth as follows:
FIRST: The name of the Corporation is: Archipelago Learning, Inc.
SECOND: The address of the registered office of the Corporation in the State of Delaware is
Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, County of New Castle,
State of Delaware, 19808. The name of the registered agent of the Corporation in the State of
Delaware at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
FOURTH: (a) The total number of shares of all classes of stock which the Corporation shall
have authority to issue is Two Hundred Ten Million (210,000,000) shares, consisting of (a) Two
Hundred Million (200,000,000) shares of Common Stock, par value $0.001 per share (Common Stock)
and (b) Ten Million (10,000,000) shares of one or more series of Preferred Stock, par value $0.001
per share (Preferred Stock).
(b) Except as otherwise provided by law, the shares of stock of the Corporation, regardless
of class, may be issued by the Corporation from time to time in such amounts, for such
consideration and for such corporate purposes as the Board of Directors of the Corporation (the
Board of Directors) may from time to time determine.
(c) Shares of Preferred Stock may be issued from time to time in one or more series of any
number of shares as may be determined from time to time by the Board of Directors, provided that
the aggregate number of shares issued and not cancelled of any and all such series shall not exceed
the total number of shares of Preferred Stock authorized by this Certificate of Incorporation.
Each series of Preferred
Stock shall be distinctly designated. The voting powers, if any, of each such series and the
preferences and relative, participating, optional and other special rights of each such series and
the qualifications, limitations and restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding; and the Board of Directors is hereby expressly granted
authority to fix, in the resolution or resolutions providing for the issue of a particular series
of Preferred Stock, the voting powers, if any, of each such series and the designations,
preferences and relative, participating, optional and other special rights of each such series and
the qualifications, limitations and restrictions thereof to the full extent now or hereafter
permitted by this Certificate of Incorporation and the laws of the State of Delaware. Shares of
Preferred Stock, regardless of series, that are converted into other securities or other
consideration or otherwise acquired by the Corporation shall be retired and cancelled, and the
Corporation shall take all such actions as are necessary to cause such shares to have the status of
authorized but unissued shares of Preferred Stock, without designation as to series, and the
Company shall have the right to reissue such shares.
(d) Subject to the provisions of applicable law or of the Bylaws of the Corporation with
respect to the closing of the transfer books or the fixing of a record date for the determination
of stockholders entitled to vote, and except as otherwise provided by law or by the resolution or
resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding
shares of Common Stock shall exclusively possess the voting power for the election of directors and
for all other purposes, each holder of record of shares of Common Stock being entitled to one vote
for each share of Common Stock standing in such holders name on the books of the Corporation.
Shares of capital stock of the Corporation shall not be entitled to cumulative voting.
(e) Notwithstanding any other provisions of this Certificate of Incorporation or the Bylaws
of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by
law, this Certificate of Incorporation or the Bylaws of the Corporation), any director or the
entire Board of Directors of the Corporation may be removed from office for cause or without cause
by the affirmative vote of the holders of outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered for this purpose as one class)
cast a meeting of the stockholders called for that purpose, the notice for which states that the
purpose or one of the purposes of the meeting is the removal of such director, and constituting at
least a majority of such shares entitled to vote if such removal is for cause, or at least 75% of
such shares entitled to vote if such removal is without cause. Notwithstanding the foregoing, and
except as otherwise required by law, whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to elect one or more directors of the
Corporation, the provisions of paragraph (e) of this Article shall not apply with respect to the
director or directors elected by such holders of Preferred Stock. For purposes of this Article
Fourth, cause shall mean, with respect to any director, (i) the willful failure by such director
to perform, or the gross negligence of such director in performing, the duties of a director, (ii)
the engaging by such director in willful or serious misconduct that is injurious to the Corporation
or (iii) the conviction of such director of, or the entering by such director of a plea of nolo
contendere to, a crime that constitutes a felony.
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FIFTH: In furtherance and not in limitation of the powers conferred by law, subject to any
limitations contained elsewhere in this Certificate of Incorporation, Bylaws of the Corporation may
be adopted, amended or repealed by a majority of the Board of Directors of the Corporation, but any
Bylaws adopted by the Board of Directors may be amended or repealed by the stockholders entitled to
vote thereon. Election of directors need not be conducted by written ballot.
SIXTH: (a) The number of directors of the Corporation shall be fixed from time to time
exclusively by the Board of Directors pursuant to resolution adopted by a majority of the directors
then in office; provided, however, that the number of directors shall not be less than three (3)
nor more than eleven (11).
(b) Any vacancies in the Board of Directors for any reason, and any directorships resulting
from any increase in the number of directors, may be filled only by the Board of Directors (and not
by the stockholders), acting by the affirmative vote of a majority of the remaining directors,
although less than a quorum, or by a sole remaining director. Any directors so chosen shall hold
office until the next election of the class for which such directors shall have been chosen and
until their successors shall be elected and shall qualify. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding the foregoing, whenever the holders of any one or more classes or series
of Preferred Stock shall have the right, voting separately by class or series, to elect one or more
directors at an annual or special meeting of stockholders, the election, terms of office, filling
of vacancies, removal of directors and other features of the directorships shall be governed by the
terms of this Certificate of Incorporation or in any resolution or resolutions adopted by the Board
of Directors providing for the issuance of any class or series of Preferred Stock.
(d) Advance notice of nominations for the election of directors, other than by the Board of
Directors or a duly authorized committee thereof or any authorized officer of the Corporation to
whom the Board of Directors or such committee shall have delegated such authority, and information
concerning nominees, shall be given in the manner provided in the Bylaws of the Corporation.
SEVENTH: A director of the Corporation shall not be personally liable either to the
Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director,
except (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions which are not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) for any matter in respect of which such director shall be liable
under Section 174 of the DGCL or any amendment thereto or successor provision thereto, or (iv) for
any transaction from which the director shall have derived an improper personal benefit. Neither
amendment nor repeal of this Article SEVENTH nor the adoption of any provision of the Certificate
of Incorporation of the Corporation inconsistent with this Article SEVENTH shall eliminate or
reduce the effect of this paragraph in respect of any matter occurring, or any cause of action,
suit or claim that, but for this Article SEVENTH, would accrue or arise, prior to
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such amendment, repeal or adoption of an inconsistent provision. If the DGCL is amended to
eliminate or further limit the 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 DGCL.
EIGHTH. Any action required or permitted to be taken by the stockholders of the Corporation
may only be effected at a duly called annual or special meeting of the stockholders of the
Corporation, and may not be effected by the stockholders in writing in lieu of such a meeting,
unless such action by written consent of stockholders is unanimously recommended by the directors
of the Corporation then in office.
NINTH. The Corporation shall not be governed by Section 203 of the DGCL (Section 203), and
the restrictions contained in Section 203 shall not apply to the Corporation.
TENTH. To the fullest extent permitted by Section 122(17) of the DGCL and except as may be
otherwise expressly agreed in writing by the Corporation and Providence Equity Partners V L.P. and
its affiliates (collectively, PEP), the Corporation, on behalf of itself and its subsidiaries,
renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being
offered an opportunity to participate in, business opportunities, which are from time to time
presented to PEP or any of its officers, directors, agents, stockholders, members, partners,
affiliates and subsidiaries (other than the Corporation and its subsidiaries), even if the
opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have
pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such
person shall be liable to the Corporation or any of its subsidiaries for breach of any fiduciary or
other duty, as a director or officer or otherwise, by reason of the fact that such person pursues
or acquires such business opportunity, directs such business opportunity to another person or fails
to present such business opportunity, or information regarding such business opportunity, to the
Corporation or its subsidiaries unless, in the case of any such person who is a director or officer
of the Corporation, such business opportunity is expressly offered to such director or officer in
writing solely in his or her capacity as a director or officer of the Corporation. Any person
purchasing or otherwise acquiring any interest in any shares of stock of the Corporation shall be
deemed to have notice of and consented to the provisions of this Article TENTH. Neither the
alteration, amendment or repeal of this Article TENTH, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article TENTH, shall eliminate or reduce the
effect of this Article TENTH in respect of any business opportunity first identified or any other
matter occurring, or any cause of action, suit or claim that, but for this Article TENTH, would
accrue or arise, prior to such alteration, amendment, repeal or adoption.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate, hereby
declaring and certifying that this is its act and deed and the facts herein stated are true, and
accordingly have hereunto set its hand this [ ]th day of November, 2009.
ARCHIPELAGO LEARNING, INC. |
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Title: | ||||
[SIGNATURE PAGE TO ARCHIPELAGO LEARNING, INC. A&R CHARTER]