EXHIBIT 3.1(a)
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ARTICLES OF INCORPORATION
OF
ADVANCED TECHNOLOGY LABORATORIES, INC.
ARTICLE I. NAME
The name of the corporation (the "Corporation") is
ADVANCED TECHNOLOGY LABORATORIES, INC.
ARTICLE II. REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Washington is 520 Pike Street, 26th Floor, Seattle, Washington 98101. The
name of the Corporation's registered agent at such address is C T Corporation
System.
ARTICLE III. SHARES
3.1 Authorized Capital
The total number of shares of stock which the Corporation shall have
authority to issue is 56,000,000 shares, of which 50,000,000 shares shall
be shares of Common Stock, par value $0.01 per share ("Common Stock"), and
6,000,000 shares shall be shares of Preferred Stock, with the par value of
$1.00 per share ("Preferred Stock"). Unless otherwise provided for pursuant
to the authority granted in Section 3.2, no shareholder of the Corporation
shall have any preemptive right to acquire additional shares of stock or
securities convertible into shares of stock of the Corporation.
3.2. Provisions Relating to Preferred Stock
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article III, to provide for the
issuance of the shares of Preferred Stock in series and by filing a
certificate pursuant to the applicable law of the State of Washington, to
establish from time to time 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 class or series and the qualifications, limitations or
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 number of shares constituting that series and the
distinctive designation of that series;
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(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares
of that series;
(iii) whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such voting
rights;
(iv) whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion privileges, including
provision for adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(v) whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the date
or dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(vii) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of that series; and
(viii) any other relative rights, preferences and limitations of
that series.
3.3. Provisions Relating to Common Stock
(i) Subject to the provisions of Section 3.2 of this Article III,
holders of Common Stock shall be entitled to receive such dividends as may
be declared thereon from time to time by the Board of Directors in its
discretion from any assets legally available for the payment of dividends.
(ii) In the event of the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, after distribution to the
holders of all shares of Preferred Stock which shall be entitled to a
preference over the holders of Common Stock of the full preferential amounts
to which the holders of Preferred Stock are entitled, the holders of Common
Stock shall be entitled to share ratably in the distribution of the assets
of the Corporation or the proceeds thereof.
(iii) Except as herein otherwise expressly provided and as
otherwise required by law, all shares of Common Stock shall have equal
voting rights
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and the holders of such shares shall have one vote, in person or by proxy,
for each share thereof held.
ARTICLE IV. SHAREHOLDER MEETINGS
4.1 Quorum
At each meeting of the shareholders, except as otherwise expressly
required by law or by these Articles of Incorporation, shareholders holding
one-third of the shares of stock of the Corporation issued and outstanding,
and entitled to be voted thereat, shall be present in person or by proxy to
constitute a quorum for the transaction of business. In the absence of a
quorum at any such meeting or any adjournment or adjournments thereof, a
majority in voting interest of those present in person or by proxy and
entitled to vote thereat, or in the absence therefrom of all the
shareholders, any officer entitled to preside at, or to act as Secretary of,
such meeting may adjourn such meeting from time to time until shareholders
holding the amount of stock requisite for a quorum shall be present in person
or by proxy. At any such adjourned meeting at which a quorum may be present
any business may be transacted which might have been transacted at the
meeting as originally called.
4.2 Special Meeting Of Shareholders
Except as otherwise required by law and subject to the rights of the
holders of the Preferred Stock or any other class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of shareholders of the Corporation may be called only by holders of
two-thirds or more of the voting power of the then outstanding shares of
stock of all classes and series of the Corporation entitled to vote generally
in the election of Directors ("Voting Stock"), by the Corporation's Chairman
of the Board, by its President or by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors or as
otherwise provided in the Bylaws of the Corporation.
ARTICLE V. LIMITATION OF DIRECTOR LIABILITY
5.1 Limitation of Liability
To the fullest extent permitted by the Washington Business
Corporation Act, (the "Act") as the same exists or may hereafter be amended,
a director of the Corporation shall not be liable to the Corporation or its
shareholders for conduct as a director. Any amendments to or repeal of this
Article V shall not adversely affect any right or protection of a director
for or with respect to any acts or omissions of such director occurring prior
to such amendment or repeal.
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5.2 Restriction on Amendment
In addition to any requirements of law and any other provisions
herein or in the terms of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation (and not
withstanding that a lesser percentage may be specified by law), the
affirmative vote of the holders of two-thirds or more of the voting power of
the then outstanding Voting Stock, voting together as a single class, shall
be required to amend, alter or repeal any provision of this Article V.
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
1. The Corporation shall have the following powers:
(a) The Corporation may indemnify and hold harmless to the
fullest extent not prohibited by applicable law each person who was or is
made a party to or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any actual or threatened
action, suit or other proceeding, whether civil, criminal, derivative,
administrative or investigative, by reason of that fact that he or she is or
was a director, officer, employee or agent of the Corporation or, being or
having been such a director, officer, employee or agent of the Corporation,
he or she is or was serving at the request of the Corporation as a director,
officer, employee, agent, trustee, or in any other capacity of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the
basis of such proceeding is alleged action or omission in an official
capacity or in any other capacity while serving as a director, officer,
employee, agent trustee or in any other capacity, against all expense,
liability and loss (including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) actually or reasonably incurred or suffered by such person in
connection therewith. Such indemnification may continue as to a person who
has ceased to be a director, officer, employee or agent of the Corporation
and shall inure to the benefit of his or her heirs and personal
representatives.
(b) The Corporation may pay expenses incurred in defending
any such proceeding in advance of the final disposition of any such
proceeding; provided, however, that the payment of such expenses in advance
of the final disposition of a proceeding shall be made to or on behalf of a
director, officer, employee or agent only upon delivery to the Corporation of
an undertaking, by or on behalf of such director, officer, employee or agent,
to repay all amounts so advanced if it shall ultimately be determined that
such director, officer, employee or agent is not entitled to be indemnified
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under this Article VI or otherwise, which undertaking may be unsecured
and may be accepted without reference to financial ability to make repayment.
(c) The Corporation may enter into contracts with any person
who is or was a director, officer, employee and agent of the Corporation in
furtherance of the provisions of this Article VI and may create a trust fund,
grant a security interest in property of the Corporation, or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in
this Article VI.
(d) If the Act is amended in the future to expand or increase the
power of the Corporation to indemnify, to pay expenses in advance of final
disposition, to enter into contracts, or to expend or increase any similar
or related power, then, without any further requirement of action by the
shareholders or directors of the Corporation, the powers described in this
Article VI shall be expanded and increased to the fullest extent permitted
by the Act, as so amended.
(e) No indemnification shall be provided under this Article VI
to any such person if the Corporation is prohibited by the nonexclusive
provisions of the Act or other applicable law as then in effect from paying
such indemnification. For example, no indemnification shall be provided to
any director in respect of any proceeding, whether or not involving action
in his or her official capacity, in which he or she shall have been finally
adjudged to be liable on the basis of intentional misconduct or knowing
violation of law by the director, or from conduct of the director in
violation of Section 23B.08.310 of the Act, or that the director personally
received a benefit in money, property or services to which the director was
not legally entitled.
2. The Corporation shall indemnify and hold harmless any person
who is or was a director or officer of the Corporation, and pay expenses in
advance of final disposition of a proceeding, to the full extent to which the
Corporation is empowered.
3. The Corporation may, by action of its Board of Directors from time
to time, indemnify and hold harmless any person who is or was an employee or
agent of the Corporation, and pay expenses in advance of final disposition of a
proceeding, to the full extent to which the Corporation is empowered, or to a
lesser extent which the Board of Directors may determine.
4. The rights to indemnification and payment of expenses in advance
of final disposition of a proceeding conferred by or pursuant to this
Article VI shall be contract rights.
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5. A director, officer, employee or agent ("claimant") shall be
presumed to be entitled to indemnification and/or payment of expenses under
this Article VI upon submission of a written claim (and, in an action brought
to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition, where the undertaking in subsection 1(b)
above has been delivered to the Corporation) and thereafter the Corporation
shall have the burden of proof to overcome the presumption that the claimant
is so entitled.
If a claim under this Article is not paid in full by the Corporation
within sixty (60) days after a written claim has been received by the
Corporation, except in the case of a claim for expenses incurred in defending
a proceeding in advance of its final disposition, in which case the
applicable period shall be twenty (20) days, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, to the extent successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim.
Neither the failure of the Corporation (including its board of directors,
its shareholders or independent legal counsel) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances nor an actual determination by the Corporation (including its
board of directors, its shareholders or independent legal counsel) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses shall be a defense to the action or create a
presumption that the claimant is not so entitled.
6. The right to indemnification and payment of expenses in advance
of final disposition of a proceeding conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, Bylaws,
agreement, vote of shareholders or disinterested directors or otherwise.
7. The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee, agent or
trustee of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or
not the corporation would have the power to indemnify such person against
such expense, liability or loss under the Act.
8. Any repeal or modification of this Article VI shall not adversely
affect any right of any person existing at the time of such repeal or
modification.
9. If any provision of this Article VI or any application thereof
shall be invalid, unenforceable or contrary to applicable law, the remainder
of
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this Article VI, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, unenforceable
or contrary to applicable law, shall not be affected thereby and shall
continue in full force and effect.
10. For the purposes of this Article VI, "applicable law" shall at
all times be construed as the applicable law in effect at the date
indemnification may be sought, or the law in effect at the date of the
action, omission or other event giving rise to the situation for which
indemnification may be sought, whichever is selected by the person seeking
indemnification. As of the date hereof, applicable law shall include
Section 23B.08.500 through .600 of the Act.
ARTICLE VII DIRECTORS AND OFFICERS
7.1 Number of Directors
The number of directors of the Corporation shall be specified in
the Bylaws, and such number may from time to time be increased or decreased
in such manner as may be prescribed in the Bylaws. The officers of the
Corporation shall be appointed in such manner as described in the Bylaws.
7.2 Election of Directors
Unless otherwise provided for pursuant to the authority granted in
Section 3.2 of Article III hereof, shareholders of the Corporation shall not
have the right to cumulative votes in the election of directors.
ARTICLE VIII. MERGERS, SHARE EXCHANGES
AND OTHER TRANSACTIONS
Except as otherwise expressly provided in these Articles of
Incorporation, a merger, share exchange, sale of substantially all of the
Corporation's assets other than in the regular course of business, or
dissolution must be approved by the affirmative vote of a majority of the
Corporation's outstanding shares entitled to vote, or if separate voting by
voting groups is required, then by not less than a majority of all the votes
entitled to be cast by that voting group.
ARTICLE IX. CORPORATION'S ACQUISITION OF OWN SHARES
The Corporation may purchase, redeem receive, take or otherwise
acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose
pledge, use and otherwise deal with and in its own shares. As a specific
modification of Section 23B.06.310 of the Act, pursuant to the authority in
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Section 23B.02.020(5)(c) of the Act to include provisions related to the
management of the business and the regulation of the affairs of the
Corporation, shares of the Corporation's stock acquired by it shall be
considered "Treasury Stock" and so held by the Corporation. The shares so
acquired by the Corporation shall not be considered as authorized but
unissued but rather authorized, issued and held by the Corporation but not
outstanding. The shares so acquired shall not be regarded as canceled or as
a reduction to the authorized capital of the Corporation unless specifically
so designated by the Board of Directors in an amendment to these Articles of
Incorporation. The provisions of this Article IX do not alter or affect the
status of the Corporation's acquisition of its shares as a
"distribution" by the Corporation as defined in Section 23B.01.400(6) of the
Act nor alter or affect the limitations of distributions by the Corporation
set forth in Section 23B.06.400 of the Act. Any shares so acquired the
Corporation, unless specifically designated by the Board of Directors, at
the time of acquisition, shall be considered on subsequent disposition as
transferred rather than reissued. Nothing in this Article IX limits or
restricts the right of the Corporation to resell or otherwise dispose of any
of its shares previously acquired for such consideration and according to
such procedures as established by the Board of Directors.
ARTICLE X. INCORPORATOR
The name and address of the incorporator are: W. Brinton Yorks, Jr.,
22100 Bothell Everett Highway, Bothell Washington 98041-3003.
/s/ W. Brinton Yorks, Jr.
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W. Brinton Yorks, Jr.
Incorporator
May 11, 1995 ART. OF INCORP.
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