Exhibit 3.1
ARTICLES OF INCORPORATION
OF
DUNN COMPUTER CORPORATION
The undersigned, being an individual, does hereby
act as incorporator in adopting the following Articles of Incorporation for the
purpose of organizing a corporation authorized by law to issue shares, pursuant
to the provisions of the Virginia Stock Corporation Act, Chapter 9 of Title 13.1
of the Code of Virginia.
ARTICLE l. NAME
The name of this corporation is Dunn Computer
Corporation (the "Corporation").
ARTICLE 2. PURPOSE
The purpose of the Corporation is to engage in any
lawful business not required to be set forth in the articles of incorporation
for which corporations may be organized under the Virginia Stock Corporation
Act.
ARTICLE 3. CAPITAL STOCK
The total number of shares that the Corporation
shall have authority to issue is twenty-two million (22,000,000) shares, of
which twenty million (20,000,000) shares shall be Common Stock, par value $0.001
per share ("Common Stock"), and two million (2,000,000) shares shall be
Preferred Stock ("Preferred Stock"), par value $0.001 per share. To the extent
permitted by the Virginia Stock Corporation Act, the Board of Directors, by an
adoption of an amendment to the articles of incorporation, may fix in whole or
part, the preferences, limitations and relative rights of (i) any class or
shares before the issuance of any shares of that class or (ii) one or more
series within a class before the issuance of any shares of that series.
ARTICLE 4. DURATION
The duration of the Corporation shall be perpetual.
ARTICLE 5. BOARD OF DIRECTORS
5.1 TERMS OF DIRECTORS
The directors shall be classified with respect to the
time for which they severally hold office into three classes, Class I, Class II
and Class III, with each group containing one-third of the total, as near as may
be, and as shall be adjusted from time to time by the Board of Directors of the
Corporation to maintain such proportionality. Each initial director in Class I
shall hold office for a term expiring at the 1999 annual meeting of
shareholders; each initial director in Class II shall hold office for a term
expiring at the 2000 annual meeting of shareholders; and each initial director
in Class III shall hold office for a term expiring at the 2001 annual meeting of
shareholders. Notwithstanding the foregoing provisions of this Section 5.1, each
director shall serve until such director's successor is duly elected and
qualified or until such director's earlier death, resignation or removal. At
each annual meeting of shareholders, the successors to the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of shareholders held in the third year following
the year of their election and until their successors have been duly elected and
qualified or until any such director's earlier death, resignation or removal.
5.2 NUMBER OF DIRECTORS
(a) The total number of directors on the Board of
Directors shall be within a variable range of a maximum of fifteen (15)
directors and a minimum of five (5) directors. The number of directors shall be
as fixed or changed from time to time by (i) the Board of Directors, within the
minimum and maximum, or (ii) the affirmative vote, at a meeting of the
shareholders called for such a purpose, of not less than 66-2/3% of the total
number of votes of the then outstanding shares of stock of the Corporation
entitled to vote, voting together as a single class, but only if notice of such
proposal was contained in the notice of such meeting.
(b) In the event of any increase or decrease in the
number of directors, the newly created or eliminated directorships resulting
from such increase or decrease shall be apportioned by the Board of Directors
among the three classes of directors so as to maintain such classes as nearly as
equal as possible. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director.
5.3 REMOVAL OF DIRECTORS
(a) Except as otherwise provided pursuant to the
provisions of the articles of incorporation relating to the rights of the
holders of any class or series of shares of
Preferred Stock, voting separately by class or series, to elect directors under
specified circumstances, any director or directors may be removed from office at
any time, but only for cause (as defined in Section 5.3(b) hereof) and only by
the affirmative vote, at a meeting of the shareholders called for such a
purpose, of not less than 66-2/3% of the total number of votes of the then
outstanding shares of stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, but only if notice of
such proposal was contained in the notice of such meeting. At least 30 days
prior to such meeting of shareholders, written notice shall be sent to the
director or directors whose removal will be considered at such meeting.
(b) For purposes of this Section 5.3, "cause"
shall mean (i) conduct as a director of the Corporation or any subsidiary
involving dishonesty of a material nature or (ii) criminal conduct (other than
minor infractions and traffic violations) that relates to the performance of the
director's duties as a director of the Corporation or any subsidiary.
5.4 VACANCIES ON THE BOARD OF DIRECTORS
Any vacancy occurring on the Board of Directors
resulting from resignation, removal, death, an increase in the number of
directors, or otherwise shall be filled only by vote of a majority of the
directors then in office, whether or not a quorum, and the term of any directors
so chosen shall expire at the next shareholders meeting at which directors are
elected and until their successors shall be elected and qualified or until any
such director's earlier death, resignation or removal.
5.5 DIRECTORS ELECTED BY HOLDERS OF PREFERRED STOCK
The Board of Directors shall have the authority to
authorize the election of all or a specified number of directors by the holders
of one or more authorized classes of shares of Preferred Stock. Each class, or
classes, of shares entitled to elect one or more directors is a separate voting
group for purposes of the election of directors.
ARTICLE 6. PREEMPTIVE RIGHTS
No shareholder of the Corporation shall have any preemptive rights
to purchase, subscribe for or otherwise acquire any stock or other securities of
the Corporation, whether now or hereafter authorized, and any and all preemptive
rights hereby are denied.
ARTICLE 7. SPECIAL MEETINGS
Special meetings of the shareholders may be called at any time but
only by (i) the Chairman of the Board of Directors of the Corporation, (ii) the
President of the Corporation, (iii) a majority of the directors in office, even
if less than a quorum, or (iv) the holders of more than 50% of the total number
of votes of the then outstanding shares of stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
if such holders sign, date and deliver to the Corporation's secretary one or
more written demands for the meeting describing the purpose or purposes for
which it is to be held, provided that if an annual shareholders' meeting has not
been held within 15 months after the Corporation's last annual shareholders'
meeting, then the requisite percentage in clause (iv) of this Article 7 shall be
20%.
ARTICLE 8. CRITERIA FOR EVALUATING CERTAIN OFFERS
The Board of Directors, when evaluating any offer of another party
to (i) make a tender or exchange offer for any equity security of the
Corporation, (ii) merge or consolidate the Corporation with another institution,
or (iii) purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation, shall, in connection with the exercise
of its judgment in determining what is in the best interests of the Corporation
and its shareholders, be authorized to give due consideration to any such
factors as the Board of Directors determines to be relevant, including, without
limitation:
(a) the interests of the shareholders of the Corporation;
(b) whether the proposed transaction might violate federal or
state laws;
(c) the consideration being offered in the proposed
transaction, in relation to the then current market price for the outstanding
capital stock of the Corporation, the market price for the capital stock of the
Corporation over a period of years, the estimated price that might be achieved
in a negotiated sale of the Corporation as a whole or in part or through orderly
liquidation, the premiums over market price for the securities of other
corporations in similar transactions, current political, economic and other
factors bearing on securities prices and the Corporation's financial condition
and estimated future value as an independent entity; and
(d) the social, legal and economic effects upon employees,
suppliers, subscribers and others having similar relationships with the
Corporation, and the communities in which the Corporation conducts its business.
In connection with any such evaluation, the Board of Directors is authorized to
conduct such investigations and engage in such legal proceedings as the Board of
Directors may determine.
ARTICLE 9. CONTROL SHARE ACQUISITIONS
Article 14.1 of the Virginia Stock Corporation Act shall not apply
to acquisitions of shares of the Corporation.
ARTICLE 10. LIMITATION ON LIABILITY
To the fullest extent permitted by the law of the Commonwealth of
Virginia, as presently in effect or as the same hereafter may be amended and
supplemented, in any proceeding brought by or in the right of the Corporation or
brought by or on behalf of shareholders of the Corporation, the damages assessed
against an officer or director arising out of the single transaction, occurrence
or course of conduct shall not exceed the sum of one dollar ($1.00). The
liability of an officer or director shall not be limited as provided in this
Article 10 if the officer or director engaged in willful misconduct or a knowing
violation of the criminal law or of any federal or state securities law,
including, without limitation, any claim of unlawful insider trading or
manipulation of the market for any security.
ARTICLE 11. INDEMNIFICATION
(a) The Corporation shall to the fullest extent permitted by the
law of the Commonwealth of Virginia, as presently in effect or as the same
hereafter may be amended and supplemented, indemnify an individual who is or was
a director or officer of the Corporation and who was, is, or is threatened to be
made a named defendant or respondent in any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (collectively, a "proceeding"),
against any obligation to pay a judgment, settlement, penalty, fine (including
any excise tax assessed with respect to any employee benefit plan) or other
liability and reasonable expenses (including counsel fees) incurred with respect
to such a proceeding, except such liabilities and expenses as are incurred
because of such director's or officer's willful misconduct or knowing violation
of the criminal law. The Corporation is authorized to contract in advance to
indemnify and to make advances and reimbursements
for expenses to any of its directors or officers to the same extent provided in
this Article 11.
(b) Unless a determination has been made that indemnification is
not permissible, the Corporation shall make advances and reimbursements for
expenses reasonably incurred by a director or officer in a proceeding as
described above upon receipt of an undertaking from such director or officer to
repay the same if it is ultimately determined that such director or officer is
not entitled to indemnification. Such undertaking shall be an unlimited,
unsecured general obligation of the director or officer and shall be accepted
without reference to such director's or officer's ability to make repayment.
(c) The determination that indemnification under this Article 11
is permissible, the authorization of such indemnification (if applicable), and
the evaluation as to the reasonableness of expenses in a specific case shall be
made as provided by law. Special legal counsel selected to make determinations
under this Article 11 may be counsel for the Corporation. The termination of a
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent shall not of itself create a presumption that a
director or officer acted in such a manner as to make him or her ineligible for
indemnification.
(d) For the purposes of this Article 11, every reference to a
director or officer shall include, without limitation, (i) every individual who
is a director or officer of the Corporation, (ii) an individual who, while a
director or officer, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, (iii) an individual who formerly was a director or officer
of the Corporation or who, while a director or officer, occupied at the request
of the Corporation any of the other positions referred to in clause (ii) of this
sentence, and (iv) the estate, personal representative, heirs, executors and
administrators of a director or officer of the Corporation or other person
referred to herein. Service as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise controlled by the Corporation
shall be deemed service at the request of the Corporation. A director or officer
shall be deemed to be serving an employee benefit plan at the Corporation's
request if such person's duties to the Corporation also impose duties on, or
otherwise involve services by, such person to the plan or to participants in or
beneficiaries of the plan.
(e) Indemnification pursuant to this Article 11 shall not be
exclusive of any other right of indemnification to which any person may be
entitled, including indemnification pursuant to a valid contract,
indemnification by legal entitles other than the Corporation and indemnification
under policies of insurance purchased and maintained by the Corporation or
others. No person shall be entitled to indemnification by the Corporation,
however, to the extent such person is actually indemnified by another entity,
including an insurer. In addition to any insurance that may be maintained on
behalf of any director, officer or other person, the Corporation is authorized
to purchase and maintain insurance against any liability it may have under this
Article 11 to protect any of the persons named above against any liability
arising from their service to the Corporation or to any other enterprise at the
Corporation's request, regardless of the Corporation's power to indemnify
against such liability. The provisions of this Article 11 shall not be deemed to
preclude the Corporation from entering into contracts otherwise permitted by law
with any individuals or entities other than those named in this Article 11.
(f) The provisions of this Article 11 shall be applicable from
and after its adoption even though some or all of the underlying conduct or
events relating to a proceeding may have occurred before such adoption. No
amendment, modification or repeal of this Article 11 shall diminish the rights
provided hereunder to any person arising from conduct or events occurring before
the adoption of such amendment, modification or repeal. If any provision of this
Article 11 or its application to any person or circumstance is held invalid by a
court of competent jurisdiction, the invalidity shall not affect other
provisions or applications of this Article 11, and to this end the provisions of
this Article 11 are severable.
ARTICLE 12. AMENDMENT OF BYLAWS
To the extent permitted by the Virginia Stock Corporation Act, the
bylaws may be amended only by (i) the Board of Directors or (ii) the affirmative
vote, at a meeting of the shareholders called for such a purpose, of not less
than 66-2/3% of the total number of votes of the then outstanding shares of
stock of the Corporation entitled to vote, voting together as a single class.
ARTICLE 13. REGISTERED AGENT
The post office address with street and number, if any, of the
initial registered office of the Corporation in the Commonwealth of Virginia is
c/o Parker Pollard & Brown, 5511 Staples Mill Road, Richmond, Virginia 23228.
The county or city
in the Commonwealth of Virginia in which the said registered office of the
Corporation is located is the County of Henrico.
The name of the initial registered agent of the Corporation at the
said registered office is Edward R. Parker. The said initial registered agent
meets the requirements of Section 13.1-619 of the Virginia Stock Corporation
Act, inasmuch as he is a resident of the Commonwealth of Virginia and a member
of the Virginia State Bar. The business office of the said registered agent of
the Corporation is identical with the said registered office of the Corporation.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation this 25th day of February, 1998.
-----------------------------
John D. Vazzana
February 25, 1998