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EXHIBIT 3.1
Amended and Restated
Certificate of Incorporation
of
Aristotle International, Inc.
ARTICLE I
The name of this corporation is Aristotle International, Inc. (the
"Corporation").
ARTICLE II
The registered agent and the address of the registered office in the State
of Delaware are:
CorpAmerica, Inc.
30 Old Rudnick Lane
Dover, Delaware 19901
County of Kent
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Delaware General Corporation
Law.
ARTICLE IV
A. The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Preferred Stock" and "Common Stock." The total number
of shares of capital stock the Corporation is authorized to issue Thirty-Five
Million (35,000,000). The total number of shares of Preferred Stock the
Corporation shall have authority to issue is Five Million (5,000,000). The total
number of shares of Common Stock the Corporation shall have authority to issue
is Thirty Million (30,000,000). The Preferred Stock shall have a par value
of $.001 per share and the Common Stock shall have a par value of $.001 per
share.
B. The shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors of the Corporation (the "Board") is
expressly authorized to provide for the issue of all or any of the remaining
shares of the Preferred Stock in one or more series, and to fix the number of
shares and to determine or alter for each such series, such voting powers, full
or limited, or no voting powers, and such designations, preferences, and
relative, participating, optional, or other rights and such qualifications,
limitations, or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board providing for the issue of such
shares (a "Preferred Stock Designation") and as may be permitted by the Delaware
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General Corporation Law. The Board is also expressly authorized to increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of shares of that
series. In case the number of shares of any such series shall be so decreased,
the shares constituting such decrease shall resume the status that they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
ARTICLE V
A. No action shall be taken by the stockholders of the Corporation except
at an annual or special meeting of the stockholders called in accordance with
the Bylaws, and following the closing of the initial public offering pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock to the public no action
shall be taken by the stockholders by written consent.
B. Special meetings of the stockholders of the Corporation may only be
called in the manner provided in the Bylaws of the Corporation.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
ARTICLE VI
A. To the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or as may hereafter be amended, a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as director,
except (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 the 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
Article to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
(a) Right to Indemnification. Each person who was or is made a party or is
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threatened to be made a party to or is otherwise 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 is or was a
director, 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 an employee benefit plan (hereinafter an "Indemnitee"), 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 the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the
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extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the Indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
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paragraph (c) of this Section with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee only
if such Proceeding (or part thereof) was authorized by the Board.
(b) Right to Advancement of Expenses. The right to indemnification
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conferred in paragraph (a) of this Section shall include the right to be paid by
the Corporation the expenses incurred in defending any Proceeding for which such
right to indemnification is applicable in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
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Delaware General Corporation Law requires, an advancement of expenses incurred
by an Indemnitee 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 Indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such Indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise.
(c) Right of Indemnitee to Bring Suit. The rights to indemnification and
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to the advancement of expenses conferred in paragraphs (a) and (b) of this
Section shall be contract rights. If a claim under paragraph (a) or (b) of this
Section is not paid in full by the Corporation within sixty (60) days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty (20) days, the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the Indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the Indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including the Board,
its independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including the Board, its independent
legal counsel or its stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the Indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the Indemnitee, be a defense to such suit. In any suit brought by the
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Indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Section or otherwise shall be on the Corporation.
(d) Non-Exclusivity of Rights. The rights to indemnification and to the
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advancement of expenses conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
this Amended and Restated Certificate of Incorporation, bylaw, agreement, vote
of stockholders or disinterested directors or otherwise.
(e) Insurance. The Corporation may maintain insurance, at its expense, to
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protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any 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.
(f) Indemnification of Employees and Agents of the Corporation. The
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Corporation may, to the extent authorized from time to time by the Board, grant
rights to indemnification, and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Section
with respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
(g) Amendment. Neither any amendment nor repeal of this Article VI, nor
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the adoption of any provision of the Corporation's Certificate of Incorporation
inconsistent with this Article VI, shall eliminate or reduce the effect of this
Article VI in respect of any matter occurring, or action or proceeding accruing
or arising or that, but for this Article VI, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
ARTICLE VII
A. Subject to the provisions of Article VI, Section (g), the Corporation
reserves the right to adopt, repeal, rescind or amend in any respect any
provisions contained in this Amended and Restated Certificate of Incorporation
in the manner now or hereafter prescribed by applicable law, and all rights
conferred on stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Amended and Restated
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or not require a vote, but in addition to any affirmative
vote of the holders of any particular class or series of the voting stock of the
Corporation required by law, this Amended and Restated Certificate of
Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least a majority of the voting power of all of the then-
outstanding shares of voting stock of the Corporation, voting together as a
single class, shall be required to alter, amend or repeal Articles V, VI or VII.
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