{"id":41597,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/certificate-of-incorporation-edison-schools-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"certificate-of-incorporation-edison-schools-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/certificate-of-incorporation-edison-schools-inc.html","title":{"rendered":"Certificate of Incorporation &#8211; Edison Schools Inc."},"content":{"rendered":"<pre>             SIXTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION\n\n                                       OF\n\n                               EDISON SCHOOLS INC.\n\n\n         EDISON SCHOOLS INC., a corporation organized and existing under the\nGeneral Corporation Law of the State of Delaware (the \"Corporation\"), does\nhereby certify as follows:\n\n         1. The Corporation, originally known as The Edison Project Inc., filed\nits original Certificate of Incorporation with the Secretary of State of the\nState of Delaware on October 31, 1996. The Certificate of Incorporation was\namended and restated on November 18, 1996 and on December 30, 1997, amended on\nMay 27, 1998, amended and restated on June 4, 1999 and on July 2, 1999, amended\non July 29, 1999 to change the name of the Corporation to Edison Schools Inc.,\nand amended and restated on October 27, 1999.\n\n         2. By action of directors in lieu of a meeting, a resolution of the\nBoard of Directors of the Corporation was duly adopted, pursuant to Sections\n141(f), 242 and 245 of the General Corporation Law of the State of Delaware,\nsetting forth an Amended and Restated Certificate of Incorporation and declaring\nsaid Amended and Restated Certificate of Incorporation advisable. The\nstockholders of the Corporation duly approved said proposed Amended and Restated\nCertificate of Incorporation by written consent in accordance with Sections 228,\n242 and 245 of the General Corporation Law of the State of Delaware and written\nnotice of such consent has been given to all stockholders who have not consented\nin writing to said restatement. The resolution setting forth the Amended and\nRestated Certificate of Incorporation is as follows:\n\nRESOLVED:         That the Amended and Restated Certificate of Incorporation of\n                  the Corporation, as amended, be and hereby is amended and\n                  restated in its entirety so that the same shall read as\n                  follows:\n\n         FIRST. The name of the Corporation is:\n\n         Edison Schools Inc.\n\n         SECOND. The name of the Corporation's registered agent in the State of\nDelaware is Vanguard Corporate Services, Ltd. The address of its registered\noffice at such address is 15 East North Street, City of Dover, County of Kent,\n19901.\n\n         THIRD. The nature of the business or purposes to be conducted or\npromoted by the Corporation is as follows:\n\n             To engage in any lawful act or activity for which corporations may\n             be organized under the General Corporation Law of Delaware.\n   2\n         FOURTH: The total number of shares of all classes of stock which the\nCorporation shall have authority to issue is 160,000,000 shares, consisting of\n(i) 150,000,000 shares of Class A Common Stock, $.01 par value per share (\"Class\nA Common Stock\"), (ii) 5,000,000 shares of Class B Common Stock, $.01 par value\nper share (\"Class B Common Stock\" and, together with the Class A Common Stock,\nthe \"Common Stock\"), and (iii) 5,000,000 shares of Preferred Stock, $.01 par\nvalue per share (\"Preferred Stock\").\n\n         The following is a statement of the designations and the powers,\nprivileges and rights, and the qualifications, limitations or restrictions\nthereof in respect of each class of capital stock of the Corporation.\n\nA.       COMMON STOCK.\n\n         1. Identical Rights. Except as otherwise set forth in this Section A,\nthe rights and privileges of the Common Stock shall be identical; provided that\nthe dividend and liquidation rights of the holders of the Common Stock are\nsubject to and qualified by the rights of the holders of the Preferred Stock of\nany series as may be designated by the Board of Directors upon any issuance of\nthe Preferred Stock of any series.\n\n         2. Voting.\n\n                  (a) General. Except as otherwise set forth in this Section A.2\nand in Article ELEVENTH, the holders of the Common Stock shall vote as a single\nclass on all matters submitted to a vote of the stockholders to which the\nholders of Common Stock are entitled to vote, except as may be required by\nDelaware law or as otherwise expressly specified in this Certificate of\nIncorporation. Each share of Class A Common Stock shall be entitled to one vote\nand each share of Class B Common Stock shall be entitled to ten votes.\n\n                  (b) Election of Directors. With regard to the election of\ndirectors and beginning with the election of directors at the first Annual\nMeeting of Stockholders of the Corporation to be held after the consummation of\nthe initial public offering of securities of the Corporation pursuant to a\nregistration statement filed with and declared effective by Securities and\nExchange Commission (the \"Annual Meeting\"), (i) holders of Class A Common Stock\nshall be entitled, voting separately as a class, to elect seven of the\nCorporation's 11 directors and (ii) holders of Class B Common Stock shall be\nentitled, voting separately as a class, to elect four of the Corporation's 11\ndirectors. If the number of directors of the Corporation is increased or\ndecreased at any time this Section A.2(b) is in effect in accordance with\nArticle ELEVENTH, thereafter the holders of Class B Common Stock shall be\nentitled, voting as a separate class, to elect the minimum number of directors\nas shall constitute at least the same percentage of the total number of\ndirectors of the Corporation as is equal to the percentage determined by\ndividing four by 11, with the holders of Class A Common Stock, voting as\nseparate class, electing the balance. In the event of any increase or decrease\nin the authorized number of directors, each director then serving as such shall\nnevertheless continue as a director until the expiration of his current term, or\nhis earlier resignation, removal from office or death. If at any time there\nshall not be any Class B Common Stock outstanding, then this Section A.2(b)\nshall cease to be of any effect.\n\n                                      -2-\n   3\n                  (c) Cumulative Voting. The holders of Common Stock shall be\nentitled at all elections of directors to as many votes as shall equal the\nnumber of votes which (except for this provision as to cumulative voting) such\nholder would be entitled to cast for the election of directors with respect to\nsuch holder's shares of stock multiplied by the number of directors to be\nelected, and such holder may cast all of such votes for a single director or may\ndistribute them among the number to be voted for, or for any two or more of\nthem, as such holder may see fit.\n\n                  (d) Authorized Shares. The number of authorized shares of\nCommon Stock may be increased or decreased (but not below the number of shares\nthereof then outstanding) by the affirmative vote of the holders of a majority\nof the stock of the Corporation entitled to vote, irrespective of the provisions\nof Section 242(b)(2) of the General Corporation Law of Delaware.\n\n         3. Dividends and Distributions. Dividends and other distributions may\nbe declared and paid on the Common Stock from funds lawfully available therefor\nas and when determined by the Board of Directors and subject to any preferential\ndividend rights of any then outstanding Preferred Stock. The Corporation may not\nmake any dividend or distribution with respect to any class of Common Stock\nunless at the same time the Corporation makes a ratable dividend or distribution\nwith respect to each outstanding share of Common Stock, regardless of class. In\nthe case of dividends or distributions payable in shares of a class of Common\nStock, including distributions pursuant to stock splits or divisions of Class A\nCommon Stock or Class B Common Stock, only shares of Class A Common Stock may be\ndistributed with respect to Class A Common Stock and only shares of Class B\nCommon Stock may be distributed with respect to Class B Common Stock, and the\nnumber of shares of Common Stock payable per share will be equal for each class.\nWhenever a dividend or distribution, including distributions pursuant to stock\nsplits or divisions of the Common Stock, is payable in shares of Class A Common\nStock or Class B Common Stock, the number of shares of each class of Common\nStock payable per share of such class of Common Stock shall be equal in number.\nIn the case of dividends or other distributions consisting of other voting\nsecurities of the Corporation or of voting securities of any corporation that is\na wholly owned subsidiary of the Corporation, the Corporation shall declare and\npay such dividends in two separate classes of such voting securities, identical\nin all respects, except that (i) the voting rights of each such security paid to\nthe holders of Class A Common Stock shall be one-tenth of the voting rights of\neach such security paid to the holders of Class B Common Stock, (ii) such\nsecurity paid to the holders of Class B Common stock shall convert into the\nsecurity paid to the holders of Class A Common Stock upon the same terms and\nconditions applicable to the conversion of Class B Common Stock into Class A\nCommon Stock, and (iii) with respect only to dividends or other distributions of\nvoting securities of any corporation that is a wholly owned subsidiary of the\nCompany, the respective voting rights of each such security paid to holders of\nClass A Common Stock and Class B Common Stock with respect to the election of\ndirectors shall otherwise be as comparable as is practicable to those of the\nClass A Common Stock and Class B Common Stock, respectively. In the case of\ndividends or other distributions consisting of securities convertible into, or\nexchangeable for, voting securities of the Corporation or voting securities of\nanother corporation that is a wholly owned subsidiary of the Corporation, the\nCorporation shall provide that such convertible or exchangeable securities and\nthe underlying securities be identical in all respects (including, without\nlimitation, the conversion or exchange rate), except that (i) the voting rights\nof each security underlying the convertible or exchangeable security paid to the\nholders of Class A Common Stock shall be one-tenth of the voting rights of each\nsecurity underlying the convertible\n\n                                      -3-\n   4\nor exchangeable security paid to the holders of the Class B Common Stock, and\n(ii) such underlying securities paid to the holders of Class B Common Stock\nshall convert into the underlying securities paid to the holders of Class A\nCommon Stock upon the same terms and conditions applicable to the conversion of\nClass B Common Stock into Class A Common Stock and shall have the same\nrestrictions on transfer and ownership applicable to the transfer and ownership\nof the Class B Common Stock.\n\n         4. Reclassifications. Neither the shares of Class A Common Stock nor\nthe shares of Class B Common Stock may be subdivided, consolidated, reclassified\nor otherwise changed unless concurrently the shares of the other class of Common\nStock are subdivided, consolidated, reclassified or otherwise changed in the\nsame proportion and the same manner.\n\n         5. Liquidation. Upon the dissolution or liquidation of the Corporation,\nwhether voluntary or involuntary, holders of Common Stock will be entitled to\nreceive all assets of the Corporation available for distribution to its\nstockholders, subject to any preferential rights of any then outstanding\nPreferred Stock.\n\n         6. Conversion Rights.\n\n                  (a) Voluntary Conversion. Each share of Class B Common Stock\nis convertible into one share of Class A Common Stock at any time at the option\nof the holder. Such right shall be exercised by the surrender of the certificate\nor certificates representing the shares of Class B Common Stock to be converted\nto the Corporation at any time during normal business hours at the principal\nexecutive offices of the Corporation or at the offices of the Corporation's\ntransfer agent (the \"Transfer Agent\"), accompanied by a written notice from the\nholder of such shares stating that such holder desires to convert such shares,\nor a stated number of the shares represented by such certificate of\ncertificates, into an equal number of shares of Class A Common Stock, and, if so\nrequired by the Corporation or the Transfer Agent, by instruments of transfer in\nform satisfactory to the Corporation and the Transfer Agent, duly executed by\nsuch holder or such holder's duly authorized attorney, and transfer tax stamps\nor funds therefor, if required.\n\n                  (b) Automatic Conversion.\n\n                           (i) In addition to and notwithstanding the foregoing,\n                  upon any Transfer of shares of Class B Common Stock, such\n                  shares shall be converted automatically into a like number of\n                  shares of Class A Common Stock. Immediately upon the\n                  occurrence of a Transfer, and without any action on the part\n                  of any stockholder whose shares are subject to automatic\n                  conversion hereunder, the Corporation or any other person or\n                  entity, the relevant shares of Class B Common Stock shall be\n                  deemed converted into the same number of shares of Class A\n                  Common Stock. From and after the time of the Transfer, any\n                  such certificates for Class B Common Stock shall no longer\n                  represent shares of Class B Common Stock but instead shall\n                  represent the sum of the number of shares of Class A Common\n                  Stock and the right to have registered in the name of the\n                  transferee of such stock the shares of Class A Common Stock\n                  issuable to such transferee as a result of such conversion.\n                  The Class A Common Stock issuable\n\n                                      -4-\n   5\n                  upon any such conversion shall be so registered and the\n                  certificates with respect to such stock shall be issued by the\n                  Corporation upon the surrender of the certificates that\n                  represent the Class B Common Stock immediately prior to the\n                  Transfer, duly endorsed to the Corporation or in blank or\n                  accompanied by proper instruments of transfer to the\n                  Corporation or in blank (such endorsements or instruments of\n                  transfer to be in form satisfactory to the Corporation). As\n                  used in this section A.6(b), the following terms have the\n                  following meanings:\n\n                           (1)      \"Affiliate\" shall mean and be limited to the\n                                    following Persons: (A) with respect to any\n                                    natural person, (i) that natural person's\n                                    spouse, siblings, children (including\n                                    adopted children), grandchildren or parents\n                                    or parents, (ii) a trust of which such\n                                    natural person is the trustee for the\n                                    benefit of his spouse, siblings, children\n                                    (including adopted children), grandchildren\n                                    or parents or parents, or (iii) the heirs,\n                                    executors, administrators, guardians or\n                                    conservators of such natural person; (B)\n                                    with respect to any limited partnership, (i)\n                                    any Person that, at the Original Issuance\n                                    Time, was the general partner of such\n                                    limited partnership, or (ii) another limited\n                                    partnership which has a general partner, the\n                                    control of which general partner is held,\n                                    directly or indirectly, by five or fewer\n                                    natural persons, provided such natural\n                                    persons had control of the general partner\n                                    of the subject limited partnership at the\n                                    Original Issue Time; (C) with respect to any\n                                    corporation or limited liability company,\n                                    (i) any Person that is a limited partnership\n                                    or limited liability company and that has as\n                                    a general partner or a managing member, as\n                                    the case may be, such corporation or limited\n                                    liability company and (ii) any Person that\n                                    is a corporation and that is controlled by,\n                                    controls or is under common control with\n                                    such corporation or limited liability\n                                    company; and (D) with respect to any\n                                    Original Shareholder, any Person that is\n                                    controlled by, controls or is under common\n                                    control with the Original Shareholder.\n\n                           (2)      \"Control\" of a Person shall mean ownership\n                                    of more than 50% of the voting power of the\n                                    Person on all matters.\n\n                           (3)      \"Original Shareholder\" shall mean each\n                                    Person to whom the Corporation originally\n                                    issued shares of Class B Common Stock at the\n                                    Original Issuance Time.\n\n                           (4)      \"Original Issuance Time\" means the time at\n                                    which the Corporation first issued Class B\n                                    Common Stock.\n\n                           (5)      \"Person\" shall mean an individual, a\n                                    partnership, a limited liability company, a\n                                    corporation, an association, a joint stock\n                                    company, a trust, a joint venture, an\n                                    unincorporated organization or a\n                                    governmental entity or any department,\n                                    agency or political subdivision thereof.\n\n                                      -5-\n   6\n                           (6)      \"Transfer\" shall mean the sale, assignment,\n                                    transfer, gift, pledge or hypothecation or\n                                    other disposition, whether voluntary or\n                                    involuntary, of Class B Common Stock to any\n                                    Person other than an Affiliate of the\n                                    Original Shareholder that initially held the\n                                    shares being transferred. Notwithstanding\n                                    the foregoing, the following shall not\n                                    constitute a \"Transfer\": (i) a transfer to\n                                    the acquiror in the case of a merger or\n                                    similar transaction by the Corporation in\n                                    which all the outstanding shares of Common\n                                    Stock of the Corporation regardless of class\n                                    are purchased by the acquiror, (ii) the\n                                    sale, assignment, transfer, gift, pledge or\n                                    hypothecation or other disposition, whether\n                                    voluntary or involuntary, of any options or\n                                    warrants to purchase shares of Class B\n                                    Common Stock, (iii) the sale, transfer,\n                                    pledge or hypothecation or other disposition\n                                    in a bona fide financing transaction of any\n                                    derivative instrument that derives its value\n                                    from underlying shares of Class B Common\n                                    Stock or options or warrants to purchase\n                                    shares of Class B Common Stock, (iv) a\n                                    transfer to a Person that is Controlled by\n                                    H. Christopher Whittle or his Affiliates and\n                                    (v) any pledge of shares of Class B Common\n                                    Stock pursuant to the grant of a bona fide\n                                    pledge of or security interest in such\n                                    shares as collateral security for\n                                    indebtedness due to the pledgee, provided\n                                    that such pledge expressly provides that the\n                                    pledged shares remain subject to the\n                                    provisions of this Section A.6(b)(i) and\n                                    further provided that the subsequent\n                                    foreclosure by the pledgee on such shares or\n                                    similar action taken by the pledgee with\n                                    respect to the pledged shares shall be a\n                                    \"Transfer\" and such pledged shares of Class\n                                    B Common Stock shall thereupon be converted\n                                    automatically into shares of Class A Common\n                                    Stock as provided in this Section A.6(b)(i),\n                                    except that, if within five business days\n                                    after such foreclosure or similar event such\n                                    converted shares are returned to the\n                                    pledgor, such shares shall be converted\n                                    automatically back into shares of Class B\n                                    Common Stock.\n\n                  (ii) All of the Class B Common Stock held by a stockholder and\nits Affiliates shall automatically convert into shares of Class A Common Stock\non a one-for-one basis immediately following any Transfer by such stockholder\nafter which the stockholder and its Affiliates together have Transferred a\nnumber of shares of Common Stock representing more than 50% of the aggregate\nnumber of shares of Common Stock held by such stockholder and its Affiliates on\nOctober 1, 1999 (excluding for this purpose shares issuable upon the exercise of\noptions and warrants to purchase shares of Common Stock held on October 1, 1999\nand assuming all outstanding shares of the Corporation's preferred stock\nconverted into Common Stock on October 1, 1999). Immediately upon the occurrence\nof a Transfer described in the preceding sentence, and without any action on the\npart of any stockholder whose shares are subject to automatic conversion\nhereunder, the Corporation or any other person or entity, the relevant shares of\nClass B Common Stock shall be deemed converted into the same number of shares of\nClass A Common Stock. From and after the time of the Transfer, any such\ncertificates for Class B Common Stock shall no longer represent shares of Class\nB Common Stock but\n\n                                      -6-\n   7\ninstead shall represent the sum of the number of shares of Class A Common Stock\nand the right to have registered in the name of the registered holder of such\nstock the shares of Class A Common Stock issuable to such holder as a result of\nsuch conversion. The Class A Common Stock issuable upon any such conversion\nshall be so registered and the certificates with respect to such stock shall be\nissued by the Corporation upon the surrender of the certificates that represent\nthe Class B Common Stock immediately prior to the conversion.\n\n                  (iii) On the earlier to occur of (A) the twelfth anniversary\nof the date of the Original Issuance Time, or (B) a record date for any meeting\nof stockholders of the Corporation upon which the number of shares of\noutstanding Class B Common Stock in the aggregate is less than 90,025 shares\n(adjusted for stock splits, stock dividends, classifications, recapitalizations\nand reverse stock splits and similar transactions), each share of Class B Common\nStock then issued or outstanding shall thereupon be converted automatically as\nof such date into one fully paid and non-assessable share of Class A Common\nStock. Upon the occurrence of either such event, notice of such automatic\nconversion shall be given by the Corporation by means of a press release and\nwritten notice to all holders of Class B Common Stock, and shall be given as\nsoon as practicable, and the Secretary of the Corporation shall be instructed\nto, and shall, promptly request from each holder of Class B Common Stock that\neach such holder promptly deliver, and each such holder shall promptly deliver,\nthe certificate representing each such share of Class B Common Stock to the\nCorporation for exchange hereunder. Immediately upon the occurrence of an event\ndescribed in clause (A) or (B) of the first sentence of this paragraph, and\nwithout any action on the part of any stockholder, the Corporation or any other\nperson or entity, all shares of Class B Common Stock shall be deemed converted\ninto the same number of shares of Class A Common Stock. From and after such\ntime, any certificates for Class B Common Stock shall no longer represent shares\nof Class B Common Stock but instead shall represent the sum of the number of\nshares of Class A Common Stock and the right to have registered in the name of\nthe registered holder of such stock the shares of Class A Common Stock issuable\nto such holder as a result of such conversion. The Class A Common Stock issuable\nupon any such conversion shall be so registered and the certificates with\nrespect to such stock shall be issued by the Corporation upon the surrender of\nthe certificates that represent the Class B Common Stock immediately prior to\nthe conversion.\n\n         7. Unconverted Shares. If less than all of the shares of Class B Common\nStock evidenced by a certificate surrendered to the Corporation (in accordance\nwith such procedures as the Board of Directors may determine) are converted, the\nCorporation shall execute and deliver to or upon the written order of the holder\nof such certificate a new certificate evidencing the number of shares of Class B\nCommon Stock which are not converted without charge to the holder.\n\n         8. Reservation. The Corporation hereby reserves, and shall at all times\nreserve and keep available, out of its authorized and unissued shares of Class A\nCommon Stock, for the purposes of effecting conversions, such number of duly\nauthorized shares of Class A Common Stock as shall from time to time be\nsufficient to effect the conversion of all outstanding shares of Class B Common\nStock. The Corporation covenants that all the shares of Class A Common Stock so\nissuable shall, when so issued, be duly and validly issued, fully paid and\nnonassessable. The Corporation shall take all such action as may be necessary to\nassure that all such shares of Class A Common Stock may be so issued without\nviolation of any applicable law or regulation.\n\n                                      -7-\n   8\nThe Corporation shall not take any action that results in any adjustment of the\nconversion ratio if the total number of shares of Class A Common Stock issued\nand issuable after such action upon conversion of the shares of Class B Common\nStock would exceed the total number of shares of Class A Common Stock then\nauthorized by the Corporation's Certificate of Incorporation.\n\n         9. Merger. Upon the merger or consolidation of the Corporation (whether\nor not the Corporation is the surviving entity), holders of each class of Common\nStock will be entitled to receive equal per share payments or distributions,\nexcept that in any transaction in which shares of capital stock are distributed\nto holders of Common Stock, the shares of capital stock distributed to holders\nof Class A Common Stock and Class B Common Stock may differ as to voting and\nconversion rights, but only to the extent that the voting and conversion rights\nof the Class A Common Stock and the Class B Common Stock differ in this\nCertificate of Incorporation.\n\n         10. Issuance of Class A Common Stock. Following the Original Issuance\nTime, the Corporation shall not issue or sell any shares of Class B Common Stock\nor any securities (including, without limitation, any rights, options, warrants\nor other securities) convertible, exchangeable or exercisable into shares of\nClass B Common Stock to any person. Notwithstanding the foregoing, the Company\nmay issue and sell shares of Class B Common Stock (1) upon the exercise of any\nstock option, warrant or similar right to acquire Class B Common Stock existing\nat the Original Issuance Time and (2) in respect of stock splits, stock\ndividends, subdivisions, reclassifications or similar transactions with respect\nthe Class B Common Stock.\n\n         11. Amendments to Section. Notwithstanding any other provisions of law,\nthis Amended and Restated Certificate of Incorporation or the By-Laws of the\nCorporation, and notwithstanding the fact that a lesser percentage may be\nspecified by law, the affirmative vote of the holders of at least 80% of the\noutstanding shares of Class A Common Stock, voting separately as a single class,\nand the affirmative vote of the holders of at least 80% of the outstanding\nshares of Class B Common Stock, voting separately as a single class, shall be\nrequired to amend or repeal, or to adopt any provision inconsistent with, this\nSection A of this Article FOURTH.\n\nB.       PREFERRED STOCK.\n\n         Preferred Stock may be issued from time to time in one or more series,\neach of such series to have such terms as stated or expressed herein and in the\nresolution or resolutions providing for the issue of such series adopted by the\nBoard of Directors of the Corporation as hereinafter provided. Any shares of\nPreferred Stock which may be redeemed, purchased or acquired by the Corporation\nmay be reissued except as otherwise provided by law. Different series of\nPreferred Stock shall not be construed to constitute different classes of shares\nfor the purposes of voting by classes unless expressly provided.\n\n         Authority is hereby expressly granted to the Board of Directors from\ntime to time to issue the Preferred Stock in one or more series, and in\nconnection with the creation of any such series, by resolution or resolutions\nproviding for the issue of the shares thereof, to determine and fix such voting\npowers, full or limited, or no voting powers, and such designations, preferences\nand \n\n                                      -8-\n   9\nrelative participating, optional or other special rights, and qualifications,\nlimitations or restrictions thereof, including without limitation thereof,\ndividend rights, conversion rights, redemption privileges and liquidation\npreferences, as shall be stated and expressed in such resolutions, all to the\nfull extent now or hereafter permitted by the General Corporation Law of\nDelaware. Without limiting the generality of the foregoing, the resolutions\nproviding for issuance of any series of Preferred Stock may provide that such\nseries shall be superior or rank equally or be junior to the Preferred Stock of\nany other series to the extent permitted by law. Except as otherwise provided in\nthis Certificate of Incorporation, no vote of the holders of the Preferred Stock\nor Common Stock shall be a prerequisite to the designation or issuance of any\nshares of any series of the Preferred Stock authorized by and complying with the\nconditions of this Certificate of Incorporation, the right to have such vote\nbeing expressly waived by all present and future holders of the capital stock of\nthe Corporation.\n\n         FIFTH. The Corporation shall have a perpetual existence.\n\n         SIXTH. In furtherance of and not in limitation of powers conferred by\nstatute, it is further provided:\n\n                  1. Election of directors need not be by written ballot except\nas and to the extent provided in the By-Laws of the Corporation.\n\n                  2. Subject to the provisions of this Amended and Restated\nCertificate of Incorporation and the By-Laws of the Corporation, the Board of\nDirectors is expressly authorized to adopt, amend or repeal the By-Laws of the\nCorporation.\n\n         SEVENTH. Whenever a compromise or arrangement is proposed between the\nCorporation and its creditors or any class of them and\/or between the\nCorporation and its stockholders or any class of them, any court of equitable\njurisdiction within the State of Delaware may, on the application in a summary\nway of the Corporation or of any creditor or stockholder thereof, or on the\napplication of any receiver or receivers appointed for the Corporation under the\nprovisions of section 291 of Title 8 of the Delaware Code or on the application\nof trustees in dissolution or of any receiver or receivers appointed for the\nCorporation under the provisions of section 279 of Title 8 of the Delaware Code\norder a meeting of the creditors or class of creditors, and\/or of the\nstockholders or class of stockholders of the Corporation, as the case may be, to\nbe summoned in such manner as the said court directs. If a majority in number\nrepresenting three-fourths in value of the creditors or class of creditors,\nand\/or of the stockholders or class of stockholders of the Corporation, as the\ncase may be, agree to any compromise or arrangement and to any reorganization of\nthe Corporation as consequence of such compromise or arrangement, the said\ncompromise or arrangement and the said reorganization shall, if sanctioned by\nthe court to which the said application has been made, be binding on all the\ncreditors or class of creditors, and\/or on all the stockholders or class of\nstockholders, of the Corporation, as the case may be, and also on the\nCorporation.\n\n         EIGHTH. Except to the extent that the General Corporation Law of\nDelaware prohibits the elimination or limitation of liability of directors for\nbreaches of fiduciary duty, no director of the Corporation shall be personally\nliable to the Corporation or its stockholders for monetary damages for any\nbreach of fiduciary duty as a director, notwithstanding any provision of law\n\n                                      -9-\n   10\nimposing such liability. No amendment to or repeal of this provision shall apply\nto or have any effect on the liability or alleged liability of any director of\nthe Corporation for or with respect to any acts or omissions of such director\noccurring prior to such amendment.\n\n         NINTH. 1. Actions, Suits and Proceedings Other than by or in the Right\nof the Corporation. The Corporation shall indemnify each person who was or is a\nparty or is threatened to be made a party to any threatened, pending or\ncompleted action, suit or proceeding, whether civil, criminal, administrative or\ninvestigative (other than an action by or in the right of the Corporation), by\nreason of the fact that he is or was, or has agreed to become, a director or\nofficer of the Corporation, or is or was serving, or has agreed to serve, at the\nrequest of the Corporation, as a director, officer or trustee of, or in a\nsimilar capacity with, another corporation, partnership, joint venture, trust or\nother enterprise (including any employee benefit plan) (all such persons being\nreferred to hereafter as an \"Indemnitee\"), or by reason of any action alleged to\nhave been taken or omitted in such capacity, against all expenses (including\nattorneys' fees), judgments, fines and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such action, suit\nor proceeding and any appeal therefrom, if he acted in good faith and in a\nmanner he reasonably believed to be in, or not opposed to, the best interests of\nthe Corporation, and, with respect to any criminal action or proceeding, had no\nreasonable cause to believe his conduct was unlawful. The termination of any\naction, suit or proceeding by judgment, order, settlement, conviction or upon a\nplea of nolo contendere or its equivalent, shall not, of itself, create a\npresumption that the person did not act in good faith and in a manner which he\nreasonably believed to be in, or not opposed to, the best interests of the\nCorporation, and, with respect to any criminal action or proceeding, had\nreasonable cause to believe that his conduct was unlawful. Notwithstanding\nanything to the contrary in this Article, except as set forth in Section 7\nbelow, the Corporation shall not indemnify an Indemnitee seeking indemnification\nin connection with a proceeding (or part thereof) initiated by the Indemnitee\nunless the initiation thereof was approved by the Board of Directors of the\nCorporation. Notwithstanding anything to the contrary in this Article, the\nCorporation shall not indemnify an Indemnitee to the extent such Indemnitee is\nreimbursed from the proceeds of insurance, and in the event the Corporation\nmakes any indemnification payments to an Indemnitee and such Indemnitee is\nsubsequently reimbursed from the proceeds of insurance, such Indemnitee shall\npromptly refund such indemnification payments to the Corporation to the extent\nof such insurance reimbursement.\n\n         2. Actions or Suits by or in the Right of the Corporation. The\nCorporation shall indemnify any Indemnitee who was or is a party or is\nthreatened to be made a party to any threatened, pending or completed action or\nsuit by or in the right of the Corporation to procure a judgment in its favor by\nreason of the fact that he is or was, or has agreed to become, a director or\nofficer of the Corporation, or is or was serving, or has agreed to serve, at the\nrequest of the Corporation, as a director, officer or trustee of, or in a\nsimilar capacity with, another corporation, partnership, joint venture, trust or\nother enterprise (including any employee benefit plan), or by reason of any\naction alleged to have been taken or omitted in such capacity, against all\nexpenses (including attorneys' fees) and, to the extent permitted by law,\namounts paid in settlement actually and reasonably incurred by him or on his\nbehalf in connection with such action, suit or proceeding and any appeal\ntherefrom, if he acted in good faith and in a manner he reasonably believed to\nbe in, or not opposed to, the best interests of the Corporation, except that no\nindemnification shall be made in respect of any claim, issue or matter as to\nwhich such person\n\n                                      -10-\n   11\nshall have been adjudged to be liable to the Corporation unless and only to the\nextent that the Court of Chancery of Delaware shall determine upon application\nthat, despite the adjudication of such liability but in view of all the\ncircumstances of the case, such person is fairly and reasonably entitled to\nindemnity for such expenses (including attorneys' fees) which the Court of\nChancery of Delaware shall deem proper.\n\n         3. Indemnification for Expenses of Successful Party. Notwithstanding\nthe other provisions of this Article, to the extent that an Indemnitee has been\nsuccessful, on the merits or otherwise, in defense of any action, suit or\nproceeding referred to in Sections 1 and 2 of this Article, or in defense of any\nclaim, issue or matter therein, or on appeal from any such action, suit or\nproceeding, he shall be indemnified against all expenses (including attorneys'\nfees) actually and reasonably incurred by him or on his behalf in connection\ntherewith. Without limiting the foregoing, if any action, suit or proceeding is\ndisposed of, on the merits or otherwise (including a disposition without\nprejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an\nadjudication that the Indemnitee was liable to the Corporation, (iii) a plea of\nguilty or nolo contendere by the Indemnitee, (iv) an adjudication that the\nIndemnitee did not act in good faith and in a manner he reasonably believed to\nbe in or not opposed to the best interests of the Corporation and (v) with\nrespect to any criminal proceeding, an adjudication that the Indemnitee had\nreasonable cause to believe his conduct was unlawful, the Indemnitee shall be\nconsidered for the purposes hereof to have been wholly successful with respect\nthereto.\n\n         4. Notification and Defense of Claim. As a condition precedent to his\nright to be indemnified, the Indemnitee must notify the Corporation in writing\nas soon as practicable of any action, suit, proceeding or investigation\ninvolving him for which indemnity will or could be sought. With respect to any\naction, suit, proceeding or investigation of which the Corporation is so\nnotified, the Corporation will be entitled to participate therein at its own\nexpense and\/or to assume the defense thereof at its own expense, with legal\ncounsel reasonably acceptable to the Indemnitee. After notice from the\nCorporation to the Indemnitee of its election so to assume such defense, the\nCorporation shall not be liable to the Indemnitee for any legal or other\nexpenses subsequently incurred by the Indemnitee in connection with such claim,\nother than as provided below in this Section 4. The Indemnitee shall have the\nright to employ his own counsel in connection with such claim, but the fees and\nexpenses of such counsel incurred after notice from the Corporation of its\nassumption of the defense thereof shall be at the expense of the Indemnitee\nunless (i) the employment of counsel by the Indemnitee has been authorized by\nthe Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded\nthat there may be a conflict of interest or position on any significant issue\nbetween the Corporation and the Indemnitee in the conduct of the defense of such\naction or (iii) the Corporation shall not in fact have employed counsel to\nassume the defense of such action, in each of which cases the fees and expenses\nof counsel for the Indemnitee shall be at the expense of the Corporation, except\nas otherwise expressly provided by this Article. The Corporation shall not be\nentitled, without the consent of the Indemnitee, to assume the defense of any\nclaim brought by or in the right of the Corporation or as to which counsel for\nthe Indemnitee shall have reasonably made the conclusion provided for in clause\n(ii) above.\n\n         5. Advance of Expenses. Subject to the provisions of Section 6 below,\nin the event that the Corporation does not assume the defense pursuant to\nSection 4 of this Article of any action, suit, proceeding or investigation of\nwhich the Corporation receives notice under this\n\n                                      -11-\n   12\nArticle, any expenses (including attorneys' fees) incurred by an Indemnitee in\ndefending a civil or criminal action, suit, proceeding or investigation or any\nappeal therefrom shall be paid by the Corporation in advance of the final\ndisposition of such matter; provided, however, that the payment of such expenses\nincurred by an Indemnitee in advance of the final disposition of such matter\nshall be made only upon receipt of an undertaking by or on behalf of the\nIndemnitee to repay all amounts so advanced in the event that it shall\nultimately be determined that the Indemnitee is not entitled to be indemnified\nby the Corporation as authorized in this Article. Such undertaking shall be\naccepted without reference to the financial ability of the Indemnitee to make\nsuch repayment.\n\n         6. Procedure for Indemnification. In order to obtain indemnification or\nadvancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the\nIndemnitee shall submit to the Corporation a written request, including in such\nrequest such documentation and information as is reasonably available to the\nIndemnitee and is reasonably necessary to determine whether and to what extent\nthe Indemnitee is entitled to indemnification or advancement of expenses. Any\nsuch indemnification or advancement of expenses shall be made promptly, and in\nany event within 60 days after receipt by the Corporation of the written request\nof the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the\nCorporation determines within such 60-day period that the Indemnitee did not\nmeet the applicable standard of conduct set forth in Section 1 or 2, as the case\nmay be. Such determination shall be made in each instance by (a) a majority vote\nof the directors of the Corporation consisting of persons who are not at that\ntime parties to the action, suit or proceeding in question (\"disinterested\ndirectors\"), whether or not a quorum, (b) a majority vote of a committee of\ndisinterested directors designated by majority vote of disinterested directors,\nwhether or not a quorum, (c) a majority vote of a quorum of the outstanding\nshares of stock of all classes entitled to vote for directors, voting as a\nsingle class, which quorum shall consist of stockholders who are not at that\ntime parties to the action, suit or proceeding in question, (d) independent\nlegal counsel (who may, to the extent permitted by law, be regular legal counsel\nto the Corporation) or (e) a court of competent jurisdiction.\n\n         7. Remedies. The right to indemnification or advances as granted by\nthis Article shall be enforceable by the Indemnitee in any court of competent\njurisdiction if the Corporation denies such request, in whole or in part, or if\nno disposition thereof is made within the 60-day period referred to above in\nSection 6. Unless otherwise required by law, the burden of proving that the\nIndemnitee is not entitled to indemnification or advancement of expenses under\nthis Article shall be on the Corporation. Neither the failure of the Corporation\nto have made a determination prior to the commencement of such action that\nindemnification is proper in the circumstances because the Indemnitee has met\nthe applicable standard of conduct, nor an actual determination by the\nCorporation pursuant to Section 6 that the Indemnitee has not met such\napplicable standard of conduct, shall be a defense to the action or create a\npresumption that the Indemnitee has not met the applicable standard of conduct.\nThe Indemnitee's expenses (including attorneys' fees) incurred in connection\nwith successfully establishing his right to indemnification, in whole or in\npart, in any such proceeding shall also be indemnified by the Corporation.\n\n         8. Subsequent Amendment. No amendment, termination or repeal of this\nArticle or of the relevant provisions of the General Corporation Law of Delaware\nor any other applicable\n\n                                      -12-\n   13\nlaws shall affect or diminish in any way the rights of any Indemnitee to\nindemnification under the provisions hereof with respect to any action, suit,\nproceeding or investigation arising out of or relating to any actions,\ntransactions or facts occurring prior to the final adoption of such amendment,\ntermination or repeal.\n\n         9. Other Rights. The indemnification and advancement of expenses\nprovided by this Article shall not be deemed exclusive of any other rights to\nwhich an Indemnitee seeking indemnification or advancement of expenses may be\nentitled under any law (common or statutory), agreement or vote of stockholders\nor disinterested directors or otherwise, both as to action in his official\ncapacity and as to action in any other capacity while holding office for the\nCorporation, and shall continue as to an Indemnitee who has ceased to be a\ndirector or officer, and shall inure to the benefit of the estate, heirs,\nexecutors and administrators of the Indemnitee. Nothing contained in this\nArticle shall be deemed to prohibit, and the Corporation is specifically\nauthorized to enter into, agreements with officers and directors providing\nindemnification rights and procedures different from those set forth in this\nArticle. In addition, the Corporation may, to the extent authorized from time to\ntime by its Board of Directors, grant indemnification rights to other employees\nor agents of the Corporation or other persons serving the Corporation and such\nrights may be equivalent to, or greater or less than, those set forth in this\nArticle.\n\n         10. Partial Indemnification. If an Indemnitee is entitled under any\nprovision of this Article to indemnification by the Corporation for some or a\nportion of the expenses (including attorneys' fees), judgments, fines or amounts\npaid in settlement actually and reasonably incurred by him or on his behalf in\nconnection with any action, suit, proceeding or investigation and any appeal\ntherefrom but not, however, for the total amount thereof, the Corporation shall\nnevertheless indemnify the Indemnitee for the portion of such expenses\n(including attorneys' fees), judgments, fines or amounts paid in settlement to\nwhich the Indemnitee is entitled.\n\n         11. Insurance. The Corporation may purchase and maintain insurance, at\nits expense, to protect itself and any director, officer, employee or agent of\nthe Corporation or another corporation, partnership, joint venture, trust or\nother enterprise (including any employee benefit plan) against any expense,\nliability or loss incurred by him in any such capacity, or arising out of his\nstatus as such, whether or not the Corporation would have the power to indemnify\nsuch person against such expense, liability or loss under the General\nCorporation Law of Delaware.\n\n         12. Merger or Consolidation. If the Corporation is merged into or\nconsolidated with another corporation and the Corporation is not the surviving\ncorporation, the surviving corporation shall assume the obligations of the\nCorporation under this Article with respect to any action, suit, proceeding or\ninvestigation arising out of or relating to any actions, transactions or facts\noccurring prior to the date of such merger or consolidation.\n\n         13. Savings Clause. If this Article or any portion hereof shall be\ninvalidated on any ground by any court of competent jurisdiction, then the\nCorporation shall nevertheless indemnify each Indemnitee as to any expenses\n(including attorneys' fees), judgments, fines and amounts paid in settlement in\nconnection with any action, suit, proceeding or investigation, whether civil,\ncriminal or administrative, including an action by or in the right of the\nCorporation, to the fullest extent permitted by any applicable portion of this\nArticle that shall not have been invalidated and to the fullest extent permitted\nby applicable law.\n\n                                      -13-\n   14\n         14. Definitions. Terms used herein and defined in Section 145(h) and\nSection 145(i) of the General Corporation Law of Delaware shall have the\nrespective meanings assigned to such terms in such Section 145(h) and Section\n145(i).\n\n         15. Subsequent Legislation. If the General Corporation Law of Delaware\nis amended after adoption of this Article to expand further the indemnification\npermitted to Indemnitees, then the Corporation shall indemnify such persons to\nthe fullest extent permitted by the General Corporation Law of Delaware, as so\namended.\n\n         TENTH. The Corporation reserves the right to amend, alter, change or\nrepeal any provision contained in this Amended and Restated Certificate of\nIncorporation, in the manner now or hereafter prescribed by statute and this\nAmended and Restated Certificate of Incorporation, and all rights conferred upon\nstockholders herein are granted subject to this reservation.\n\n         ELEVENTH. This Article is inserted for the management of the business\nand for the conduct of the affairs of the Corporation.\n\n         1. Number of Directors. Prior to the Annual Meeting, the number of\ndirectors of the Corporation shall be determined by the Board of Directors.\nThereafter, so long as any shares of Class B Common Stock are outstanding, the\nnumber of directors of the Corporation shall be fixed at eleven or at such other\nnumber as shall be determined by the affirmative vote both of the holders of at\nleast 80% of the shares of Class A Common Stock issued and outstanding and\nentitled to vote and of the holders of at least 80% of the shares of Class B\nCommon Stock issued and outstanding and entitled to vote. At such time as no\nshares of Class B Common Stock shall be outstanding, the number of directors\nshall be determined as provided in the By-Laws of the Corporation.\n\n         2. Removal. Directors of the Corporation elected by the holders of\nClass A Common Stock, voting separately as a class, may be removed only for\ncause and only by the affirmative vote of the holders of at least 80% of the\noutstanding shares of Class A Common Stock, voting separately as a class.\nDirectors of the Corporation elected by the holders of Class B Common Stock,\nvoting separately as a class, may be removed only for cause and only by the\naffirmative vote of the holders of at least 80% of the outstanding shares of\nClass B Common Stock, voting separately as a class. Notwithstanding the\nforegoing, at such time as no shares of Class B Common Stock are outstanding,\nDirectors of the Corporation may be removed only for cause and only by the\naffirmative vote of the holders of at least 80% of the outstanding shares\nentitled to vote.\n\n         3. Vacancies. A vacancy in any directorship filled by the holders of\nClass A Common Stock, voting separately as a class, or a vacancy resulting from\nan enlargement of the board which the holders of Class A Common Stock are\nentitled to elect as contemplated by Section A.2(b), shall be filled only by a\nmajority vote of any remaining director or directors elected by the holders of\nClass A Common Stock, voting separately as a class. A vacancy in any\ndirectorship filled by the holders of Class B Common stock, voting separately as\na class, or a vacancy resulting from an enlargement of the board which the\nholders of Class B Common Stock are entitled to elect as contemplated by Section\nA.2(b), shall be filled only by vote of the holders\n\n                                      -14-\n   15\nof Class B Common Stock, voting separately as a class, or by a majority vote of\nany remaining director or directors elected by the holders of Class B Common\nStock, voting separately as a class. Notwithstanding the foregoing, at such time\nas no shares of Class B Common Stock are outstanding, any vacancy in the Board\nof Directors, however occurring, including a vacancy resulting from an\nenlargement of the board, shall be filled only by a vote of a majority of the\ndirectors then in office, although less than a quorum, or by a sole remaining\ndirector. A director elected to fill a vacancy shall be elected to hold office\nuntil the next election of the class for which such director shall have been\nchosen, subject to the election and qualification of his successor and to his\nearlier death, resignation or removal.\n\n         4. Stockholder Nominations and Introduction of Business, Etc. Advance\nnotice of stockholder nominations for election of directors and other business\nto be brought by stockholders before a meeting of stockholders shall be given in\nthe manner provided by the By-Laws of the Corporation.\n\n         5. Amendments to Articles of Incorporation. Notwithstanding any other\nprovisions of law, this Amended and Restated Certificate of Incorporation or the\nBy-Laws of the Corporation, and notwithstanding the fact that a lesser\npercentage may be specified by law, the affirmative vote of the holders of at\nleast 80% of the issued and outstanding Class A Common Stock, voting separately\nas class, and the affirmative vote of the holders of at least 80% of the issued\nand outstanding Class B Common Stock, voting separately as class, shall be\nrequired to amend, repeal, or to adopt any provision inconsistent with, Section\nA of Article FOURTH, this Article ELEVENTH, Article THIRTEENTH or Article\nFOURTEENTH.\n\n         TWELFTH. The holders of the capital stock of the Corporation shall have\nno preemptive rights to subscribe for any shares of any class of stock of the\nCorporation whether now or hereafter authorized.\n\n         THIRTEENTH. Special meetings of stockholders may be called at any time\nby only the Chairman of the Board of Directors, the President or the Board of\nDirectors. Business transacted at any special meeting of stockholders shall be\nlimited to matters relating to the purpose or purposes stated in the notice of\nmeeting.\n\n         FOURTEENTH. The holders of Class A Common Stock may not take any action\nby written consent in lieu of a meeting.\n\n         IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be\naffixed hereto and this Sixth Amended and Restated Certificate of Incorporation\nto be signed by its Secretary this 17th day of November, 1999.\n\n                                            EDISON SCHOOLS INC.\n\n\n                                            By: \/s\/ Laura Eshbaugh\n                                                -------------------------------\n                                                Laura Eshbaugh\n                                                Secretary\n\n                                      -15-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7412],"corporate_contracts_industries":[],"corporate_contracts_types":[9573,9575],"class_list":["post-41597","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-edison-schools-inc","corporate_contracts_types-formation","corporate_contracts_types-formation__incorporation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41597","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41597"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41597"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41597"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41597"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}