(a) Unless the certificate of incorporation provides otherwise, if a vacancy occurs on a board of directors, including a vacancy resulting from an increase in the number of directors:
(1) the stockholders may fill the vacancy;
(2) the board of directors may fill the vacancy; or
(3) if the directors remaining in office are less than a quorum, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office.
(b) If the vacant office was held by a director elected by a voting group of stockholders, only the holders of stock of that voting group are entitled to vote to fill the vacancy if it is filled by the stockholders, and only the remaining directors elected by that voting group, even if less than a quorum, are entitled to fill the vacancy if it is filled by the directors.
(c) A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date under Section 10A-2A-8.07(b) or otherwise) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.
Last modified: May 3, 2021