Exhibit 3.1
RESTATED CERTIFICATE OF FORMATION
OF
OPEXA THERAPEUTICS, INC.
a Texas corporation
ARTICLE I.
The name of the Corporation is Opexa Therapeutics, Inc.
ARTICLE II.
The period of duration of the Corporation is perpetual.
ARTICLE III.
The purpose or purposes for which the Corporation is organized is the transaction of any and all lawful business for which corporations may be incorporated under the Texas Business Corporation act.
ARTICLE IV.
The aggregate number of shares which the corporation shall have authority to issue is one hundred ten million (110,000,000), consisting of one hundred million (100,000,000) shares of common stock having $0.01 par value "Common Stock"), and ten million (10,000,000) shares of preferred stock having no par value ("Preferred Stock").
Shares of Preferred Stock of the Corporation may be issued from time to time in one or more classes or series, each of which class or series shall have such distinctive designation or title as shall be determined by the Board of Directors of the Corporation ("Board of Directors") prior to the issuance of any shares thereof. Each such class or series of Preferred Stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, shall be stated in such resolution or resolutions providing for the issue of such class or series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in it, all in accordance with the laws of the State of Texas.
ARTICLE V.
The Corporation will not commence business until it has received for the issuance of its shares consideration of the value of at least of one thousand dollars ($1,000), consisting of money, labor done or property actually received.
1
ARTICLE VI.
The street address of the registered office is 2635 Technology Forest Blvd., The Woodlands, Texas 77381, and the name of the registered agent is Neil K. Warma.
ARTICLE VII.
The number of directors who shall constitute the Board shall equal not less than two nor more than 10, as the Board may determine by resolution from time to time. The current Board of Directors, and the names and addresses of each, are as follows:
| Name | Address |
| David E. Jorden | 2635 Technology Forest Blvd. |
| The Woodlands, Texas 77381 | |
| Gail J. Maderis | 2635 Technology Forest Blvd. |
| The Woodlands, Texas 77381 | |
| Michael S. Richman | 2635 Technology Forest Blvd. |
| The Woodlands, Texas 77381 | |
| Scott B. Seaman | 2635 Technology Forest Blvd. |
| The Woodlands, Texas 77381 | |
| Neil K. Warma | 2635 Technology Forest Blvd. |
| The Woodlands, Texas 77381 |
ARTICLE VIII.
No director of the Corporation shall be liable to the Corporation or its shareholders or members for monetary damages for any act or omission in such director's capacity as a director, except for (i) a breach of such director's duty of loyalty to the Corporation or its shareholders or to the Corporation, (ii) an act or omission not in good faith that constitutes a breach of duty of the director to the Corporation, or an act or omission that involves intentional misconduct or a knowing violation of the law; (iii) a transaction from which a director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the director's office; or (iv) an act or omission for which the liability of a director is expressly provided by an applicable statute.
ARTICLE IX.
The Corporation shall indemnify all current and former directors and officers of the Corporation to the fullest extent of the applicable law, including, without limitation, Article 2.02-1 of the Texas Business Corporation Act.
2
ARTICLE X.
Shareholders of the Corporation shall not have cumulative voting rights nor preemptive rights.
ARTICLE XI.
If the Texas Business Corporation Act (“TBCA”) requires that the shareholders vote for any of the following actions: (a) the approval of any amendment of the articles of incorporation pursuant to Article 4 of the TBCA (or any successor statute), (b) the approval of a plan of merger or exchange pursuant to Section 5.03 of the TBCA (or any successor statute thereto), (c) the approval of a sale, lease, exchange or other disposition of assets pursuant to Section 5.10 of the TBCA (or any successor statute thereto), or (d) the approval of a voluntary dissolution of the Company under Section 6.03 or the revocation of such voluntary dissolution pursuant to Section 6.05(A) of the TBCA (or any successor statutes), then the vote of shareholders required for such actions shall be (in lieu of any greater vote required by the TBCA) the affirmative vote of the holders of a majority of the outstanding shares entitled to vote thereon, unless any class or series of shares is entitled to vote as a class thereon, in which event the vote outstanding shares within each class or series of shares entitled to vote thereon as a class and at least a majority of the outstanding shares otherwise entitled to vote thereon.
3