RESTATED CERTIFICATE OF INCORPORATION
The undersigned, Richard R. Woolcott, hereby certifies that:
1. He is the duly elected and acting President and Chief Executive Officer
of Volcom, Inc., a Delaware Corporation.
2. The original Certificate of Incorporation of this Corporation was filed
with the Secretary of State of Delaware on April 25, 2005 (the "Original
Certificate of Incorporation").
3. This Restated Certificate of Incorporation (the "Certificate of
Incorporation") has been duly adopted by this Corporation's Board of Directors
(the "Board of Directors") and stockholders in accordance with the applicable
provisions of Section 242 and 245 of the General Corporation Law of the State of
Delaware, and the Corporation's stockholders have given their written consent in
accordance with Section 228 of the General Corporation Law of the State of
Delaware. The Certificate of Incorporation restates, amends and supersedes the
provisions of the Original Certificate of Incorporation and all prior amendments
and restatements of the Certificate of Incorporation.
3. Upon filing with the Secretary of State of the State of Delaware (the
"Effective Date"), this Certificate of Incorporation shall read in full as
The name of the Corporation is Volcom, Inc. (the "Corporation").
The address of the Corporation's registered office in the State of
Delaware is 9 East Loockerman Street, City of Dover 19901, County of Kent. The
name of its registered agent at such address is National Registered Agents, Inc.
The purpose of the Corporation is to engage in any lawful act or activity
for which Corporations may be organized under the General Corporation Law of the
State of Delaware.
A. CLASSES OF STOCK. The Corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and "Preferred Stock." The
total number of shares of stock that the Corporation shall have authority to
issue is 70,000,000, of which (i) 60,000,000 shares shall be Common Stock,
$0.001 par value per share (the "Common Stock")
and (ii) 10,000,000 shares shall be shares of Preferred Stock, $0.001 par value
per share (the "Preferred Stock").
B. PREFERRED STOCK. Subject to the limitations and in the manner provided
by law, the Board of Directors or a duly-authorized committee of the Board of
Directors, in accordance with the laws of the State of Delaware, is hereby
authorized to, from time to time, provide by resolution for the issuance of
shares of Preferred Stock in one or more series and, by filing a certificate
pursuant to the applicable law of the State of Delaware (hereinafter referred to
as "Preferred Stock Designation"), setting forth such resolution, to establish
the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations and restrictions thereof. The authority of
the Board of Directors with respect to each series shall include, but not be
limited to, determination of the following: (i) the designation of the series,
which may be by distinguishing number, letter or title; (ii) the number of
shares of the series, which number the Board of Directors may thereafter (except
where otherwise provided in the Preferred Stock Designation) increase or
decrease (but not below the number of shares thereof then outstanding); provided
that, in case the number of shares of any series shall be so decreased, the
shares constituting such decrease shall upon the taking of any action required
by applicable law resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series as well as the
number of shares authorized for issuance in each series; (iii) the amounts or
rates at which dividends will be payable on, and the preferences, if any, of
shares of the series in respect of dividends, and whether such dividends, if
any, shall be cumulative or noncumulative; (iv) dates at which dividends, if
any, shall be payable; (v) the redemption rights and price or prices, if any,
for shares of the series; (vi) the terms and amount of any sinking fund, if any,
provided for the purchase or redemption of shares of the series; (vii) the
amounts payable on, and the preferences, if any, of shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation; (viii) whether the shares of the series shall be
convertible into, or exchangeable, or redeemable for, shares of any other class
or series, or any other security, of the Corporation or any other Corporation,
and, if so, the specification of such other class or series or such other
security, the conversion or exchange price or prices or rate or rates, any
adjustments thereof, the date or dates at which such shares shall be convertible
or exchangeable and all other terms and conditions upon which such conversion or
exchange may be made; (ix) the voting rights, if any, of the holders of shares
of the series generally or upon specified events; (x) any other rights, powers,
preferences of such shares as are permitted by law.
A. In furtherance and not in limitation of the powers conferred by
statute, subject to any restrictions set forth herein, the Board of Directors of
the Corporation is expressly authorized to make, adopt, alter, amend or repeal
Bylaws of the Corporation by resolutions adopted by the affirmative vote of a
majority of the entire Board of Directors, subject to any bylaw requiring the
affirmative vote of a larger percentage of the members of the Board of
B. Stockholders may not make, adopt, alter, amend, change or repeal the
Bylaws of the Corporation except upon the affirmative vote of at least sixty-six
and two-thirds percent (66-2/3%)
of the votes entitled to be cast by the holders of all outstanding shares then
entitled to vote generally in the election of members of the Board of Directors,
voting together as a single class.
Subject to the provisions of the General Corporation Law of the State of
Delaware and any limitations in the Bylaws or this Certificate of Incorporation
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the Corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board of Directors. The Board of Directors shall have that number of directors
set out in the Bylaws of the Corporation as adopted or as set from time to time
by a duly adopted amendment thereto by the Board of Directors or stockholders of
the Corporation. The number of members of the Board of Directors which shall
constitute the whole Board of Directors shall be fixed by the Board of Directors
in the manner provided in the Bylaws of the Corporation.
Neither the Board of Directors nor any individual director may be removed
without cause. Subject to any limitation imposed by law, any member of the Board
of Directors may be removed with cause by the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of the Corporation entitled to
vote at an election of directors.
Any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors, shall be filled by a
majority of the members of the Incumbent Board then in office, even though less
than a quorum of the Board of Directors, and not by the stockholders. In the
event of a vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law, may exercise the powers of the full Board of
Directors until the vacancy is filled. Any director elected in accordance with
this section shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such director's
successor shall have been elected and qualified. The "Incumbent Board" shall
mean those directors of the Corporation who, as of the Effective Date,
constitute the Board of Directors of the Corporation, provided that (i) any
person becoming a director subsequent to such date whose election, or nomination
for election by the Corporation's stockholders, is approved by a vote of at
least a majority of the directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the directors of the Corporation, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended) or (ii) any person appointed by the Incumbent Board to fill a
vacancy, shall also be considered a member of the Incumbent Board of the
No person entitled to vote at an election for directors may cumulate votes
to which such person is entitled.
A. Special meetings of the stockholders of the Corporation, for any
purpose or purposes, may be called at any time by a majority of the Board of
Directors, the Chairman of the Board of Directors or the President of the
Corporation. Special meetings of the stockholders of the Corporation may not be
called by any other person or persons.
B. Elections of members of the Board of Directors need not be by written
C. Advance notice of stockholder nominations for the election of members
of the Board of Directors and of business to be brought by stockholders before
any meeting of the stockholders of the Corporation shall be given in the manner
provided in the Bylaws of the Corporation.
A. To the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or as may hereafter be amended, a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
B. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
C. The Corporation shall, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law, as the same may be amended or
supplemented, to indemnify any person by reason of the fact that the person is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
D. Indemnification conferred pursuant to this Article IX shall include the
right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition
upon receipt by the Corporation of an undertaking by or on behalf of the person
receiving advancement to repay the amount advanced if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
under this Article IX.
E. Neither any amendment nor repeal of this Article IX, nor the adoption
of any provision of the Corporation's Certificate of Incorporation inconsistent
with this Article IX, shall
eliminate or reduce the effect of this Article IX in respect of any matter
occurring, or any action or proceeding accruing or arising or that, but for this
Article IX, would accrue or arise, prior to such amendment, repeal or adoption
of an inconsistent provision.
The Corporation is to have perpetual existence.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any statutory provision) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors in
the Bylaws of the Corporation.
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, this Certificate of Incorporation may be amended by the Board
of Directors, with respect to corrections not affecting the rights, preferences
and privileges of the Corporation's stockholders.
The Corporation reserves the right to amend and repeal any provision
contained in this Certificate of Incorporation in the manner prescribed by the
laws of the State of Delaware. All rights herein conferred are granted subject
to this reservation. Notwithstanding the foregoing, no amendment, alteration,
change or repeal may be made to Article Fifth, Article Seventh, Article Eighth
or this Article Twelfth without the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the outstanding voting stock of
the corporation voting together as a single class.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by Richard R. Woolcott, its President and Chief
Executive Officer this 18th day of May, 2005.
Richard R. Woolcott
President and Chief Executive Officer