**Exhibit 3.1**
FOURTH RESTATED CERTIFICATE OF INCORPORATION
OF
BLACKBOARD INC.
     FIRST: The name of the Corporation is Blackboard Inc.
     SECOND: The address of the Corporation’s registered office in the State ofDelaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of NewCastle. The name of its registered agent at such address is CorporationService Company.
     THIRD: The nature of the business or purposes to be conducted or promotedby the Corporation is to engage in any lawful act or activity for whichcorporations may be organized under the General Corporation Law of Delaware.
     FOURTH: The total number of shares of all classes of stock which theCorporation shall have authority to issue is 205,000,000 shares, consisting of(i) 200,000,000 shares of Common Stock, $0.01 par value per share (“CommonStock”), and (ii) 5,000,000 shares of Preferred Stock, $0.01 par value pershare (“Preferred Stock”).
     The following is a statement of the designations and the powers,privileges and rights, and the qualifications, limitations or restrictionsthereof in respect of each class of capital stock of the Corporation.
A COMMON STOCK.
     1. General. The voting, dividend and liquidation rights of theholders of the Common Stock are subject to and qualified by the rights of theholders of the Preferred Stock of any series as may be designated by the Boardof Directors upon any issuance of the Preferred Stock of any series.
     2. Voting. The holders of the Common Stock shall have votingrights at all meetings of stockholders, each such holder being entitled to onevote for each share thereof held by such holder; provided,however, that, except as otherwise required by law, holders of CommonStock shall not be entitled to vote on any amendment to this Certificate ofIncorporation (which, as used herein, shall mean the certificate ofincorporation of the Corporation, as amended from time to time, including theterms of any certificate of designations of any series of Preferred Stock) thatrelates solely to the terms of one or more outstanding series of PreferredStock if the holders of such affected series are entitled, either separately ortogether as a class with the holders of one or more other such series, to votethereon pursuant to this Certificate of Incorporation. There shall be nocumulative voting.
 

 

     The number of authorized shares of Common Stock may be increased ordecreased (but not below the number of shares thereof then outstanding) by theaffirmative vote of the holders of a majority of the stock of the Corporationentitled to vote, irrespective of the provisions of Section 242(b)(2) of theGeneral Corporation Law of Delaware.
     3. Dividends. Dividends may be declared and paid on the CommonStock from funds lawfully available therefor as and when determined by theBoard of Directors and subject to any preferential dividend or other rights ofany then outstanding Preferred Stock.
     4. Liquidation. Upon the dissolution or liquidation of theCorporation, whether voluntary or involuntary, holders of Common Stock will beentitled to receive all assets of the Corporation available for distribution toits stockholders, subject to any preferential or other rights of any thenoutstanding Preferred Stock.
B PREFERRED STOCK.
     Preferred Stock may be issued from time to time in one or more series,each of such series to have such terms as stated or expressed herein and in theresolution or resolutions providing for the issue of such series adopted by theBoard of Directors of the Corporation as hereinafter provided. Any shares ofPreferred Stock which may be redeemed, purchased or acquired by the Corporationmay be reissued except as otherwise provided by law.
     Authority is hereby expressly granted to the Board of Directors from timeto time to issue the Preferred Stock in one or more series, and in connectionwith the creation of any such series, by resolution or resolutions providingfor the issuance of the shares thereof, to determine and fix the number ofshares of such series and such voting powers, full or limited, or no votingpowers, and such designations, preferences and relative participating, optionalor other special rights, and qualifications, limitations or restrictionsthereof, including without limitation thereof, dividend rights, conversionrights, redemption privileges and liquidation preferences, as shall be statedand expressed in such resolutions, all to the full extent now or hereafterpermitted by the General Corporation Law of Delaware. Without limiting thegenerality of the foregoing, the resolutions providing for issuance of anyseries of Preferred Stock may provide that such series shall be superior orrank equally or be junior to the Preferred Stock of any other series to theextent permitted by law.
     The number of authorized shares of Preferred Stock may be increased ordecreased (but not below the number of shares then outstanding) by theaffirmative vote of the holders of a majority of the stock of the Corporationentitled to vote, irrespective of the provisions of Section 242(b)(2) of theGeneral Corporation Law of Delaware.
     FIFTH: Except as otherwise provided herein, the Corporation reserves theright to amend, alter, change or repeal any provision contained in thisCertificate of Incorporation, in the manner now or hereafter prescribed bystatute and this Certificate of Incorporation, and all rights conferred uponstockholders herein are granted subject to this reservation.
     SIXTH: In furtherance and not in limitation of the powers conferred uponit by the laws of the State of Delaware, and subject to the terms of any seriesof Preferred Stock, the Board of
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Directors shall have the power to adopt, amend, alter or repeal theCorporation’s By-laws. The affirmative vote of a majority of the directorspresent at any regular or special meeting of the Board of Directors at which aquorum is present shall be required to adopt, amend, alter or repeal theCorporation’s By-laws. The Corporation’s By-laws also may be adopted, amended,altered or repealed by the affirmative vote of the holders of at leastseventy-five percent (75%) of the votes which all the stockholders would beentitled to cast in any annual election of directors or class of directors, inaddition to any other vote required by this Certificate of Incorporation.Notwithstanding any other provisions of law, this Certificate of Incorporationor the By-Laws of the Corporation, and notwithstanding the fact that a lesserpercentage may be specified by law, the affirmative vote of the holders of atleast seventy-five percent (75%) of the votes which all the stockholders wouldbe entitled to cast in any annual election of directors or class of directorsshall be required to amend or repeal, or to adopt any provision inconsistentwith, this Article SIXTH.
     SEVENTH: Except to the extent that the General Corporation Law of Delawareprohibits the elimination or limitation of liability of directors for breachesof fiduciary duty, no director of the Corporation shall be personally liable tothe Corporation or its stockholders for monetary damages for any breach offiduciary duty as a director, notwithstanding any provision of law imposingsuch liability. No amendment to or repeal of this provision shall apply to orhave any effect on the liability or alleged liability of any director of theCorporation for or with respect to any acts or omissions of such directoroccurring prior to such amendment or repeal.
     EIGHTH: The Corporation shall provide indemnification as follows:
     1. Actions, Suits and Proceedings Other than by or in the Right of theCorporation. The Corporation shall indemnify each person who was or is aparty or threatened to be made a party to any threatened, pending or completedaction, suit or proceeding, whether civil, criminal, administrative orinvestigative (other than an action by or in the right of the Corporation) byreason of the fact that he or she is or was, or has agreed to become, adirector or officer of the Corporation, or is or was serving, or has agreed toserve, at the request of the Corporation, as a director, officer, partner,employee or trustee of, or in a similar capacity with, another corporation,partnership, joint venture, trust or other enterprise (including any employeebenefit plan) (all such persons being referred to hereafter as an“Indemnitee”), or by reason of any action alleged to have been taken or omittedin such capacity, against all expenses (including attorneys’ fees), judgments,fines and amounts paid in settlement actually and reasonably incurred by or onbehalf of Indemnitee in connection with such action, suit or proceeding and anyappeal therefrom, if Indemnitee acted in good faith and in a manner whichIndemnitee reasonably believed to be in, or not opposed to, the best interestsof the Corporation, and, with respect to any criminal action or proceeding, hadno reasonable cause to believe his or her conduct was unlawful. Thetermination of any action, suit or proceeding by judgment, order, settlement,conviction or upon a plea of nolo contendere or its equivalent, shallnot, of itself, create a presumption that Indemnitee did not act in good faithand in a manner which Indemnitee reasonably believed to be in, or not opposedto, the best interests of the Corporation, and, with respect to any criminalaction or proceeding, had reasonable cause to believe that his or her conductwas unlawful.
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     2. Actions or Suits by or in the Right of the Corporation. TheCorporation shall indemnify any Indemnitee who was or is a party to orthreatened to be made a party to any threatened, pending or completed action orsuit by or in the right of the Corporation to procure a judgment in its favorby reason of the fact that Indemnitee is or was, or has agreed to become, adirector or officer of the Corporation, or is or was serving, or has agreed toserve, at the request of the Corporation, as a director, officer, partner,employee or trustee of, or in a similar capacity with, another corporation,partnership, joint venture, trust or other enterprise (including any employeebenefit plan), or by reason of any action alleged to have been taken or omittedin such capacity, against all expenses (including attorneys’ fees) and, to theextent permitted by law, amounts paid in settlement actually and reasonablyincurred by or on behalf of Indemnitee in connection with such action, suit orproceeding and any appeal therefrom, if Indemnitee acted in good faith and in amanner which Indemnitee reasonably believed to be in, or not opposed to, thebest interests of the Corporation, except that no indemnification shall be madeunder this Section 2 in respect of any claim, issue or matter as to whichIndemnitee shall have been adjudged to be liable to the Corporation, unless,and only to the extent that, the Court of Chancery of Delaware shall determineupon application that, despite the adjudication of such liability but in viewof all the circumstances of the case, Indemnitee is fairly and reasonablyentitled to indemnity for such expenses (including attorneys’ fees) which theCourt of Chancery of Delaware shall deem proper.
     3. Indemnification for Expenses of Successful Party.Notwithstanding any other provisions of this Article, to the extent that anIndemnitee has been successful, on the merits or otherwise, in defense of anyaction, suit or proceeding referred to in Sections 1 and 2 of this ArticleEIGHTH, or in defense of any claim, issue or matter therein, or on appeal fromany such action, suit or proceeding, Indemnitee shall be indemnified againstall expenses (including attorneys’ fees) actually and reasonably incurred by oron behalf of Indemnitee in connection therewith. Without limiting theforegoing, if any action, suit or proceeding is disposed of, on the merits orotherwise (including a disposition without prejudice), without (i) thedisposition being adverse to Indemnitee, (ii) an adjudication that Indemniteewas liable to the Corporation, (iii) a plea of guilty or nolo contendereby Indemnitee, (iv) an adjudication that Indemnitee did not act in good faithand in a manner he reasonably believed to be in or notopposed to thebest interests of the Corporation, and (v) with respect to any criminalproceeding, an adjudication that Indemnitee had reasonable cause to believe hisconduct was unlawful, Indemnitee shall be considered for the purposes hereof tohave been wholly successful with respect thereto.
     4. Notification and Defense of Claim. As a condition precedent toan Indemnitee’s right to be indemnified, such Indemnitee must notify theCorporation in writing as soon as practicable of any action, suit, proceedingor investigation involving such Indemnitee for which indemnity will or could besought. With respect to any action, suit, proceeding or investigation of whichthe Corporation is so notified, the Corporation will be entitled to participatetherein at its own expense and/or to assume the defense thereof at its ownexpense, with legal counsel reasonably acceptable to Indemnitee. After noticefrom the Corporation to Indemnitee of its election so to assume such defense,the Corporation shall not be liable to Indemnitee for any legal or otherexpenses subsequently incurred by Indemnitee in connection with such action,suit, proceeding or investigation, other than as provided below in this Section4. Indemnitee shall have the right to employ his or her own counsel inconnection with such action, suit, proceeding
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or investigation, but the fees and expenses of such counsel incurred afternotice from the Corporation of its assumption of the defense thereof shall beat the expense of Indemnitee unless (i) the employment of counsel by Indemniteehas been authorized by the Corporation, (ii) counsel to Indemnitee shall havereasonably concluded that there may be a conflict of interest or position onany significant issue between the Corporation and Indemnitee in the conduct ofthe defense of such action, suit, proceeding or investigation or (iii) theCorporation shall not in fact have employed counsel to assume the defense ofsuch action, suit, proceeding or investigation, in each of which cases the feesand expenses of counsel for Indemnitee shall be at the expense of theCorporation, except as otherwise expressly provided by this Article. TheCorporation shall not be entitled, without the consent of Indemnitee, to assumethe defense of any claim brought by or in the right of the Corporation or as towhich counsel for Indemnitee shall have reasonably made the conclusion providedfor in clause (ii) above. The Corporation shall not be required to indemnifyIndemnitee under this Article EIGHTH for any amounts paid in settlement of anyaction, suit, proceeding or investigation effected without its written consent.The Corporation shall not settle any action, suit, proceeding or investigationin any manner which would impose any penalty or limitation on Indemniteewithout Indemnitee’s written consent. Neither the Corporation nor Indemniteewill unreasonably withhold or delay its consent to any proposed settlement.
     5. Advance of Expenses. Subject to the provisions of Section 6 ofthis Article EIGHTH, in the event that the Corporation does not assume thedefense pursuant to Section 4 of this Article EIGHTH of any action, suit,proceeding or investigation of which the Corporation receives notice under thisArticle, any expenses (including attorneys’ fees) incurred by or on behalf ofIndemnitee in defending an action, suit, proceeding or investigation or anyappeal therefrom shall be paid by the Corporation in advance of the finaldisposition of such matter; provided, however, that the payment of suchexpenses incurred by or on behalf of Indemnitee in advance of the finaldisposition of such matter shall be made only upon receipt of an undertaking byor on behalf of Indemnitee to repay all amounts so advanced in the event thatit shall ultimately be determined that Indemnitee is not entitled to beindemnified by the Corporation as authorized in this Article; and furtherprovided that no such advancement of expenses shall be made under this ArticleEIGHTH if it is determined (in the manner described in Section 6) that (i)Indemnitee did not act in good faith and in a manner he reasonably believed tobe in, or not opposed to, the best interests of the Corporation, or (ii) withrespect to any criminal action or proceeding, Indemnitee had reasonable causeto believe his conduct was unlawful. Such undertaking shall be acceptedwithout reference to the financial ability of Indemnitee to make suchrepayment.
     6. Procedure for Indemnification. In order to obtainindemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 ofthis Article EIGHTH, an Indemnitee shall submit to the Corporation a writtenrequest. Any such indemnification or advancement of expenses shall be madepromptly, and in any event within 30 days after receipt by the Corporation ofthe written request of Indemnitee, unless the Corporation determines withinsuch 30-day period that Indemnitee did not meet the applicable standard ofconduct set forth in Section 1, 2 or 5 of this Article EIGHTH, as the case maybe. Any such determination shall be made in each instance (i) by a majorityvote of the directors of the Corporation consisting of persons who are not atthat time parties to the action, suit or proceeding in question
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(“disinterested directors”), whether or not a quorum, (ii) by a committeeof disinterested directors designated by majority vote of disinteresteddirectors, whether or not a quorum, (iii) if there are no disinteresteddirectors, or if the disinterested directors so direct, by independent legalcounsel (who may, to the extent permitted by law, be regular legal counsel tothe Corporation) in a written opinion, or (iv) by the stockholders of theCorporation.
     7. Remedies. The right to indemnification or advancement ofexpenses as granted by this Article shall be enforceable by Indemnitee in anycourt of competent jurisdiction. Neither the failure of the Corporation tohave made a determination prior to the commencement of such action thatindemnification is proper in the circumstances because Indemnitee has met theapplicable standard of conduct, nor an actual determination by the Corporationpursuant to Section 6 of this Article EIGHTH that Indemnitee has not met suchapplicable standard of conduct, shall be a defense to the action or create apresumption that Indemnitee has not met the applicable standard of conduct.Indemnitee’s expenses (including attorneys’ fees) reasonably incurred inconnection with successfully establishing Indemnitee’s right toindemnification, in whole or in part, in any such proceeding shall also beindemnified by the Corporation.
     8. Limitations. Notwithstanding anything to the contrary in thisArticle, except as set forth in Section 7 of this Article EIGHTH, theCorporation shall not indemnify an Indemnitee pursuant to this Article EIGHTHin connection with a proceeding (or part thereof) initiated by such Indemniteeunless the initiation thereof was approved by the Board of Directors of theCorporation. Notwithstanding anything to the contrary in this Article, theCorporation shall not indemnify an Indemnitee to the extent such Indemnitee isreimbursed from the proceeds of insurance, and in the event the Corporationmakes any indemnification payments to an Indemnitee and such Indemnitee issubsequently reimbursed from the proceeds of insurance, such Indemnitee shallpromptly refund indemnification payments to the Corporation to the extent ofsuch insurance reimbursement.
     9. Subsequent Amendment. No amendment, termination or repeal ofthis Article or of the relevant provisions of the General Corporation Law ofDelaware or any other applicable laws shall affect or diminish in any way therights of any Indemnitee to indemnification under the provisions hereof withrespect to any action, suit, proceeding or investigation arising out of orrelating to any actions, transactions or facts occurring prior to the finaladoption of such amendment, termination or repeal.
     10. Other Rights. The indemnification and advancement of expensesprovided by this Article shall not be deemed exclusive of any other rights towhich an Indemnitee seeking indemnification or advancement of expenses may beentitled under any law (common or statutory), agreement or vote of stockholdersor disinterested directors or otherwise, both as to action in Indemnitee’sofficial capacity and as to action in any other capacity while holding officefor the Corporation, and shall continue as to an Indemnitee who has ceased tobe a director or officer, and shall inure to the benefit of the estate, heirs,executors and administrators of Indemnitee. Nothing contained in this Articleshall be deemed to prohibit, and the Corporation is specifically authorized toenter into, agreements with officers and directors providing indemnificationrights and procedures different from those set forth in this Article. Inaddition, the Corporation may, to the extent authorized from time to time byits Board of Directors, grant indemnification rights to other employees oragents of the Corporation or other persons serving
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the Corporation and such rights may be equivalent to, or greater or lessthan, those set forth in this Article.
     11. Partial Indemnification. If an Indemnitee is entitled underany provision of this Article to indemnification by the Corporation for some ora portion of the expenses (including attorneys’ fees), judgments, fines oramounts paid in settlement actually and reasonably incurred by or on behalf ofIndemnitee in connection with any action, suit, proceeding or investigation andany appeal therefrom but not, however, for the total amount thereof, theCorporation shall nevertheless indemnify Indemnitee for the portion of suchexpenses (including attorneys’ fees), judgments, fines or amounts paid insettlement to which Indemnitee is entitled.
     12. Insurance. The Corporation may purchase and maintaininsurance, at its expense, to protect itself and any director, officer,employee or agent of the Corporation or another corporation, partnership, jointventure, trust or other enterprise (including any employee benefit plan)against any expense, liability or loss incurred by him in any such capacity, orarising out of his status as such, whether or not the Corporation would havethe power to indemnify such person against such expense, liability or lossunder the General Corporation Law of Delaware.
     13. Savings Clause. If this Article or any portion hereof shall beinvalidated on any ground by any court of competent jurisdiction, then theCorporation shall nevertheless indemnify each Indemnitee as to any expenses(including attorneys’ fees), judgments, fines and amounts paid in settlement inconnection with any action, suit, proceeding or investigation, whether civil,criminal or administrative, including an action by or in the right of theCorporation, to the fullest extent permitted by any applicable portion of thisArticle that shall not have been invalidated and to the fullest extentpermitted by applicable law.
     14. Definitions. Terms used herein and defined in Section 145(h)and Section 145(i) of the General Corporation Law of Delaware shall have therespective meanings assigned to such terms in such Section 145(h) and Section145(i).
     NINTH: This Article is inserted for the management of the business and forthe conduct of the affairs of the Corporation.
     1. General Powers. The business and affairs of the Corporationshall be managed by or under the direction of the Board of Directors.
     2. Number of Directors; Election of Directors. Subject to therights of holders of any series of Preferred Stock to elect directors, thenumber of directors of the Corporation shall be established by the Board ofDirectors. Election of directors need not be by written ballot, except as andto the extent provided in the By-laws of the Corporation.
     3. Classes of Directors. Subject to the rights of holders of anyseries of Preferred Stock to elect directors, the Board of Directors shall beand is divided into three classes: Class I, Class II and Class III.
     4. Terms of Office. Subject to the rights of holders of any seriesof Preferred Stock to elect directors, each director shall serve for a termending on the date of the third annual
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meeting following the annual meeting at which such director was elected;provided, that each director initially appointed to Class I shall serve for aterm expiring at the Corporation’s annual meeting of stockholders held in 2005;each director initially appointed to Class II shall serve for a term expiringat the Corporation’s annual meeting of stockholders held in 2006; and eachdirector initially appointed to Class III shall serve for a term expiring atthe Corporation’s annual meeting of stockholders held in 2007; providedfurther, that the term of each director shall continue until the election andqualification of his successor and be subject to his earlier death, resignationor removal.
     5. Quorum. The greater of (i) a majority of the directors at anytime in office and (ii) one-third of the number of directors fixed pursuant toSection 2 of this Article NINTH shall constitute a quorum. If at any meetingof the Board of Directors there shall be less than such a quorum, a majority ofthe directors present may adjourn the meeting from time to time without furthernotice other than announcement at the meeting, until a quorum shall be present.
     6. Action at Meeting. Every act or decision done or made by amajority of the directors present at a meeting duly held at which a quorum ispresent shall be regarded as the act of the Board of Directors unless a greaternumber is required by law or by this Certificate of Incorporation.
     7. Removal. Subject to the rights of holders of any series ofPreferred Stock, directors of the Corporation may be removed only for cause andonly by the affirmative vote of the holders of at least seventy-five percent(75%) of the votes which all the stockholders would be entitled to cast in anyannual election of directors or class of directors.
     8. Vacancies. Subject to the rights of holders of any series ofPreferred Stock, any vacancy or newly created directorships in the Board ofDirectors, however occurring, shall be filled only by vote of a majority of thedirectors then in office, although less than a quorum, or by a sole remainingdirector and shall not be filled by the stockholders. A director elected tofill a vacancy shall hold office until the next election of the class for whichsuch director shall have been chosen, subject to the election and qualificationof a successor and to such director’s earlier death, resignation or removal.
     9. Stockholder Nominations and Introduction of Business, Etc.Advance notice of stockholder nominations for election of directors and otherbusiness to be brought by stockholders before a meeting of stockholders shallbe given in the manner provided by the By-laws of the Corporation.
     10. Amendments to Article. Notwithstanding any other provisions oflaw, this Certificate of Incorporation or the By-laws of the Corporation, andnotwithstanding the fact that a lesser percentage may be specified by law, theaffirmative vote of the holders of at least seventy-five percent (75%) of thevotes which all the stockholders would be entitled to cast in any annualelection of directors or class of directors shall be required to amend orrepeal, or to adopt any provision inconsistent with, this Article NINTH.
     TENTH: Stockholders of the Corporation may not take any action by writtenconsent in lieu of a meeting. Notwithstanding any other provisions of law,this Certificate of Incorporation
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or the By-laws of the Corporation, and notwithstanding the fact that alesser percentage may be specified by law, the affirmative vote of the holdersof at least seventy-five percent (75%) of the votes which all the stockholderswould be entitled to cast in any annual election of directors or class ofdirectors shall be required to amend or repeal, or to adopt any provisioninconsistent with, this Article TENTH.
     ELEVENTH: Special meetings of stockholders for any purpose or purposes maybe called at any time by the Board of Directors, the Chairman of the Board, theChief Executive Officer or the President, but such special meetings may not becalled by any other person or persons. Business transacted at any specialmeeting of stockholders shall be limited to matters relating to the purpose orpurposes stated in the notice of meeting. Notwithstanding any other provisionof law, this Certificate of Incorporation or the By-laws of the Corporation,and notwithstanding the fact that a lesser percentage may be specified by law,the affirmative vote of the holders of at least seventy-five percent (75%) ofthe votes which all the stockholders would be entitled to cast in any annualelection of directors or class of directors shall be required to amend orrepeal, or to adopt any provision inconsistent with, this Article ELEVENTH.
     IN WITNESS WHEREOF, this Restated Certificate of Incorporation, whichrestates, integrates and amends the certificate of incorporation of theCorporation, and which has been duly adopted in accordance with Sections 228,242 and 245 of the Delaware General Corporation Law, has been executed by itsduly authorized officer this 23rd day of June, 2004.   BLACKBOARD INC.  By: /s/ Michael L. Chasen   Name: Michael L. Chasen Title: President
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