State of Delaware General Corporation Law

Transcription

1 Delaware PAGE I The First State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF "CYBERSECURITY RESEARCH INSTITUTE, INC.", FILED IN THIS OFFICE ON THE SIXTH DAY OF JUNE, A.D. 2012, AT 12:33 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS ,.?-2e. 6 g AtAwS'z'& You may verify this certificate online --- at corp. delaware. gov/authver. shtml Jeffrey wirffloa,secmtary astate AUTHEN TION: DATE:

2 CERTIFICATE OF INCORPORATION OF CYBERSECURITY RESEARCH INSTITUTE, INC. State of Delaware Secretary of State Division of Corporations Delivered 12:48 PM 06/06/2012 FILED 12:33 PM 06/06/2012 SRV FILE The undersigned, for the purpose of forming a nonstock corporation under the General Corporation Law of the State of Delaware, hereby certifies: FIRST: The name of the corporation is Cybersecurity Research Institute, Inc. (the "Corporation"). SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, New Castle County, Wilmington, Delaware The name of the Corporation's registered agent at such address is Corporation Service Company. THIRD: The purpose of the Corporation is to (a) conduct research and engage in other activities related to cybersecurity and (b) engage in any other lawful act or activity for which corporations may now or hereafter be organized under the General Corporation Law of the State of Delaware. In furtherance of the foregoing, the Corporation shall have all the powers conferred upon corporations organized not for profit and without authority to issue capital stock under the General Corporation Law of the State of Delaware, as now in effect or as may hereafter be amended. The Corporation shall be a non-profit corporation, operated as a business league (professional association) within the meaning of Section 501(c)(6) of the Internal Revenue Code of 1986, as amended. FOURTH: The Corporation shall not have authority to issue any capital stock. The classes and conditions of membership and the voting and other rights of members (if any) shall be as stated in the Bylaws of the Corporation. FIFTH: The name and mailing address of the sole incorporator of the Corporation is as follows: Scott H. Katzman 1330 Connecticut Avenue, NW Washington, D.C SIXTH: The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation, and the following persons will serve as the initial directors until the first annual meeting of members entitled to vote in the election of directors or until their successors are elected and qualified: Lee I lolcomb 700 North Frederick Avenue Gaithersburg, MD Ronald Perez 7171 Southwest Parkway MS: Austin, TX Doc. # DC

3 Edward G. Schwartz c/o EMC Corporation Parkridge Boulevard Reston, VA Himanshu Khurana, PhD 1985 Douglas Drive North, MNIO Golden Valley, MN Claire Vishik 5905 Lonesome Valley Trail Austin, TX SEVENTH: The business, property and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Elections of directors need not be by written ballot unless the Bylaws of the Corporation so provide. Except the initial directors whose names are set forth in this Certificate of Incorporation, the directors of the Corporation shall be elected as provided in the Bylaws of the Corporation EIGHTH: The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provisions contained in this Certificate of Incorporation in the manner now or hereafter prescribed by the laws of the State of Delaware and all rights, preferences and privileges of whatsoever nature conferred upon members, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article. The Board of Directors shall have the power to adopt, amend or repeal the Bylaws of the Corporation. NINTH: No part of the earnings of the Corporation shall inure to the benefit of, or be distributable to, any director or officer of the Corporation or any other private person, except that the Corporation shall be authorized and empowered to pay reasonable expenses and reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article THIRD hereof, as approved by the Board of Directors. TENTH: In the event of dissolution or final liquidation of the Corporation, all of the remaining assets and properties of the Corporation, after paying or making provision for the payment of all the liabilities and obligations of the Corporation and for necessary expenses thereof, shall be distributed as the Board of Directors shall determine. In no event shall any of such assets or properties be distributed to any director or officer of the Corporation or to any private individual. ELEVENTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as now in effect or as may hereafter be amended. Any repeal or modification of this Article ELEVENTH shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation in respect of any act or omission occurring prior to the time of such repeal or modification. 2 Doc # DC

4 TWELFTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its members or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or member thereof or on the application of any receiver or receivers appointed for this corporation under 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the members or class of members of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the members or class of members of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the members or class of members, of this corporation, as the case may be, and also on this corporation. THIRTEENTH: Section 1. Purpose. This Article THIRTEENTH anticipates the possibility (i) that the Specified Members may be a majority or significant members of the Corporation for a certain period of time, (ii) that certain officers and/or directors of the Specified Members may also serve as officers and/or directors of the Corporation, (iii) that certain officers and/or directors of the Corporation may also serve as officers and/or directors of Specified Members, (iv) that the Corporation and Specified Members may engage in the same or similar activities or lines of business and have an interest in the same areas of corporate opportunities and (v) benefits may be derived by the Corporation through its continued contractual, corporate and business relations with the Specified Members. The provisions of this Article THIRTEENTH shall, to the fullest extent permitted by law, define the conduct of certain affairs of the Corporation as they may involve the Specified Members and their respective officers and directors, and the powers, rights, duties and liabilities of the Corporation and its officers, directors and members in connection therewith. Section 2. Right to Engage in Business Opportunities. Except as may be otherwise provided in a written agreement between the Corporation and a Specified Member, to the fullest extent permitted by law, the Specified Members shall have the right to engage (and shall have no duty to refrain from engaging) in the same or similar activities or lines of business as the Corporation, and the Corporation shall not be deemed to have an interest or expectancy in any business opportunity, transaction, or other matter (each a "Business Opportunity") in which a Specified Member engages or seeks to engage merely because the Corporation engages in the same or similar activities or lines of business as that involved in or implicated by such Business Opportunity. To the fullest extent permitted by law, no Specified Member or any officer or director of such Specified Member (provided that any such director or officer who is also an director or officer of the Corporation has acted in a manner consistent with the provisions set forth in Section 4 3 Doc. # DC

5 below, to the extent it is applicable) shall be deemed to have acted in bad faith or in a manner inconsistent with the best interests of the Corporation or its members or to have acted in a manner inconsistent with or opposed to any fiduciary duty to the Corporation or its members by reason of a Specified Member exercising its right to engage in the same or similar activities or lines of business as the Corporation or by reason of any such director or officer's participation in any such activities or lines of business. The Corporation hereby renounces any interest or expectancy in, or being offered an opportunity to participate in, any Business Opportunity that may be a corporate opportunity of a Specified Member and the Corporation except as provided in the proviso of Section 4 below. Section 3. No Duty of Specified Member to Communicate Business Opportunities. To the fullest extent permitted by law, if a Specified Member acquires knowledge of a potential Business Opportunity that may be deemed to constitute a corporate opportunity of both such Specified Member and the Corporation, such Specified Member shall have no duty to communicate or offer such Business Opportunity to the Corporation and shall be permitted to pursue or acquire such Business Opportunity for itself or direct such Business Opportunity to its affiliates or others, and as a result of any such actions shall not, to the fullest extent permitted by law, be deemed to have (i) breached or acted in a manner inconsistent with or opposed to any of its duties (fiduciary or otherwise) to the Corporation and its members with respect to such Business Opportunity or (ii) acted in bad faith or in a manner inconsistent with the best interests of the Corporation or its members. Section 4. No Duty of Directors or Officers to Communicate Business Opportunities. To the fullest extent permitted by law, if any director or officer of a Specified Member who is also a director or officer of the Corporation acquires knowledge of a potential Business Opportunity that may be deemed a corporate opportunity of both the Corporation and a Specified Member, then such officer or director shall have no duty to communicate or offer such Business Opportunity to the Corporation and shall be permitted to communicate or offer such Business Opportunity to such Specified Member (except as set forth in the proviso below) and as a result of any such actions, shall not, to the fullest extent permitted by law, be deemed to have (i) breached or acted in a manner inconsistent with or opposed to any of his or her duties (fiduciary or otherwise) to the Corporation and its members with respect to such Business Opportunity; or (ii) acted in bad faith or in a manner inconsistent with the best interests of the Corporation or its members; provided, however, with respect to each of (i) and (ii) above, a Business Opportunity offered to any person who is a director or officer of the Corporation, and who is also a director or officer of a Specified Member, shall belong to the Corporation if such opportunity is expressly offered to such person in writing solely in his or her capacity as a director or officer of the Corporation. Section 5. Definitions. For purposes of this Article THIRTEENTH only: (i) the term "Affiliated Companies" shall mean, in respect of a Specified Member, any person or entity which controls, is controlled by or under common control with such Specified Member (other than the Corporation and any person or entity that is controlled by the Doc. # DC

6 Corporation), and, in respect of the Corporation, any person or entity which is controlled by the Corporation, (ii) the term "Corporation" shall mean the Corporation and all of its Affiliated Companies, and (iii) the term "Specified Member" shall mean each and every member, of any type or class, of the Corporation and all of its Affiliated Companies (other than the Corporation, defined in accordance with clause (ii) of this Section 5). Section 6. Continuing Effect. No addition to, alteration of or termination of this Article THIRTEENTH or any other provision of this Certificate of Incorporation shall eliminate or impair the effect of this Article THIR I EENTH on any act, omission, right or liability that occurred prior thereto. Section 7. Miscellaneous. (a) if any provision or provisions of this Article THIRTEENTH is held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article THIRTEENTH (including, without limitation, each portion of any paragraph of this Article THIRTEENTH containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby. (b) This Article THIRTEENTH shall not limit any protections or defenses available to, or indemnification rights of, any director or officer of the Corporation under this Certificate of Incorporation, the Bylaws of the Corporation, any agreement between the Corporation and such officer or director or applicable law. Any person or entity becoming a member of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article THIRTEENTH. FOURTEENTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owned by, or other wrongdoing by, any director, officer or other employee of the Corporation to the Corporation or the Corporation's members, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation law of the State of Delaware, this Certificate of Incorporation or the Corporation's Bylaws, (iv) any action to interpret, apply, enforce or determine the validity of this Certificate of Incorporation or the Corporation's Bylaws or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine. Any person or entity becoming a member of the Corporation shall be deemed to have notice of and consented to the provisions of this Article FOURTEENTH. 5 Doc DC

7 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Incorporation this 4 day of, Scott H. Katzman Incorporator 6 Doc # DC