EXHIBIT 3.1(b)
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CERTIFICATE OF DESIGNATION
OF SERIES A PARTICIPATING
CUMULATIVE PREFERRED STOCK SETTING
FORTH THE POWERS, PREFERENCES,
RIGHTS, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS
OF SUCH SERIES OF
PREFERRED STOCK
OF
ATLI WASHINGTON CORPORATION
The undersigned, being the Chief Executive Officer of ATLI
Washington Corporation, a Washington corporation (the
"Corporation"), in accordance with the provisions of RCW
23B.06.020, does hereby certify that, pursuant to the authority
conferred upon the Board of Directors by the Articles of
Incorporation of the Corporation, the following resolution
creating a Series A Participation Cumulative Preferred Stock was
duly adopted by the Board of Directors of the Corporation and
effective as of May 5, 1995:
Whereas the Corporation was created for the purpose of
reincorporating Advanced Technology Laboratories, Inc., a
Delaware corporation (the "Company") by way of a merger with and
into the Corporation, and
Whereas, the Corporation seeks to retain the prior
rights and interests of its shareholders provided under the
General Corporation Law of the State of Delaware, now, therefore,
under the authority conferred upon the Board of Directors of the
Corporation by Article III of the Articles of Incorporation, the
Directors adopt an identical series of Preferred Stock designated
as Series A Participating Cumulative Preferred Stock which
remains in full force and effect, without further amendment as
follows:
RESOLVED, that, pursuant to the authority vested in the
Board of Directors of the Corporation in accordance with the
provisions of the Articles of Incorporation of the Corporation, a
series of Preferred Stock of the corporation is hereby created
and that the designation and number of shares thereof and the
voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the
qualifications, limitations and restrictions thereof are as
follows:
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Section 1. Designation and Number of Shares. The
shares of such series shall be designated as "Series A
Participating Cumulative Preferred Stock" (the "Series A
Preferred Stack") par value $1.00 per share. The number of
shares initially constituting the Series A Preferred Stock shall
be 500,000; provided, however, that, if more than a total of
500,000 shares of Series A Preferred Stock shall be issuable upon
the exercise of Rights (the "Rights") issued pursuant to the
Amended and Restated Rights Agreement dated as of June 26, 1992,
between the Corporation and First Chicago Trust Company of New
York, as Rights Agent (the "Rights Agreement"), the Board of
Directors of the corporation, pursuant to RCW 23B.06.020, shall
direct by resolution or resolutions that a certificate be
properly executed and filed as required by RCW 23B.06.020,
providing for the total number of shares of Series A Preferred
Stock authorized to be issued to be increased (to the extent that
the Articles of Incorporation then permits) to the largest number
of whole shares (rounded up to the nearest whole number) issuable
upon exercise of such Rights.
Section 2. Dividends or Distributions. (a) Subject to
the prior and superior rights of the holders of shares of any
other series of Preferred Stock or other class of capital stock
of the Corporation ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, the holders
of shares of the Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out
of the assets of the Corporation legally available therefor, (1)
quarterly dividends payable in cash on the last day of each
fiscal quarter in each year, or such other dates as the Board of
Directors of the Corporation shall approve (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or a fraction of a share of Series A
Preferred Stock, in the amount of $.0l per whole share (rounded
to the nearest cent) less the amount of all cash dividends
declared on the Series A Preferred Stock pursuant to the
following clause (2) since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock (the total of
which shall not, in any event, be less than zero) and (2)
dividends payable in cash on the payment date for each cash
dividend declared on the Common Stock in an amount per whole
share (rounded to the nearest cent) equal to the Formula Number
(as hereinafter defined) then in effect times the cash dividends
then to be paid on each share of Common Stock. In addition, if
the Corporation shall pay any dividend or make any distribution
on the Common Stock payable in assets, securities or other forms
of noncash consideration (other than dividends or distributions
solely in shares of Common Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding
whole share of Series A Preferred Stock a dividend or
distribution in like kind equal to the Formula Number then in
effect times such dividend or distribution on each share of the
Common Stock. As used herein, the "Formula Number" shall be 100;
provided, however, that, if at any time after June 26, 1992, the
Corporation shall (i) declare or pay any dividend on the Common Stock
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payable in shares of Common Stock or make any distribution
on the Common Stock in shares of Common Stock, (ii) subdivide (by
a stock split or otherwise) the outstanding shares of Common
Stock into a larger number of shares of Common Stock or (iii)
combine (by a reverse stock split or otherwise) the outstanding
shares of Common Stock into a smaller number of shares of Common
Stock, then in each such event the Formula Number shall be
adjusted to a number determined by multiplying the Formula Number
in effect immediately prior to such event by a fraction, the
numerator of which is the number of shares of Common Stock that
are outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that are
outstanding immediately prior to such event (and rounding the
result to the nearest whole number); and provided further, that,
if at any time after June 26, 1992, the Corporation shall issue
any shares of its capital stock in a merger, reclassification or
change of the outstanding shares of Common Stock, then in each
such event the Formula Number shall be appropriately adjusted to
reflect such merger, reclassification or change so that each
share of Preferred Stock continues to be the economic equivalent
of a Formula Number of shares of Common Stock prior to such
merger, reclassification or change.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
Section 2(a) immediately prior to or at the same time it declares
a dividend or distribution on the Common Stock (other than a
dividend or distribution solely in shares of Common Stock);
provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in shares of Common Stock)
shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $.0l
per share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The
Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
a dividend or distribution declared thereon, which record date
shall be the same as the record date for any corresponding
dividend or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from and after
the Quarterly Dividend Payment Date next preceding the date of
original issue of such shares of Series A Preferred Stock;
provided, however, that dividends on such shares which are
originally issued after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
a quarterly dividend and on or prior to the next succeeding
Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares of Series A
Preferred Stock which are originally issued prior to the record
date for the first Quarterly Dividend Payment shall be calculated
as if cumulative from and after the last day of the fiscal
quarter (or such other Quarterly Dividend Payment Date as the
Board of Directors of the Corporation shall approve),
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next preceding the date of original issuance of such shares.
Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding.
(d) So long as any shares of the Series A Preferred
Stock are outstanding, no dividends or other distributions shall
be declared, paid or distributed, or set aside for payment or
distribution, on the Common Stock unless, in each case, the
dividend required by this Section 2 to be declared on the Series
A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred
Stock shall not be entitled to receive any dividends or other
distributions except as provided herein.
Section 3. Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be
entitled to a number of votes equal to the Formula Number then in
effect, for each share of Series A Preferred Stock held of record
on each matter on which holders of the Common Stock or
shareholders generally are entitled to vote, multiplied by the
maximum number of votes per share which any holders of the Common
Stock or shareholders generally then have with respect to such
matter (assuming any holding period or other requirement to vote
a greater number of shares is satisfied).
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock shall vote together as
one class for the election of directors of the Corporation and on
all other matters submitted to a vote of shareholders of the
Corporation.
(c) If, at the time of any annual meeting of
shareholders for the election of directors, the equivalent of six
quarterly dividends (whether or not consecutive) payable on any
share or shares of Series A Preferred Stock are in default, the
number of directors constituting the Board of Directors of the
Corporation shall be increased by two. In addition to voting
together with the holders of Common Stock for the election of
other directors of the Corporation, the holders of record of the
Series A Preferred Stock, voting separately as a class to the
exclusion of the holders of Common Stock, shall be entitled at
said meeting of shareholders (and at each subsequent annual
meeting of shareholders), unless all dividends in arrears have
been paid or declared and set apart for payment prior thereto, I
to vote for the election of two directors of the Corporation, the
holders of any Series A Preferred Stock being entitled to cast a
number of votes per share of Series A Preferred Stock equal to
the Formula Number. Until the default in payments of all
dividends which permitted the election of said directors shall
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cease to exist, any director who shall have been so elected
pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote
of the holders of the shares of Series A Preferred Stock at the
time entitled to cast a majority of the votes entitled to be cast
for the election of any such director at a special meeting of
such holders called for that purpose, and any vacancy thereby
created may be filled by the vote of such holders. If and when
such default shall cease to exist, the holders of the Series A
Preferred Stock shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every
subsequent like default in payments of dividends. Upon the
termination of the foregoing special voting rights, the terms of
office of all persons who may have been elected directors
pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors
shall be reduced by two. The voting rights granted by this
Section 3(c) shall be in addition to any other voting rights
granted to the holders of the Series A Preferred Stock in this
Section 3.
(d) Except as provided herein, in Section 11 or by
applicable law, holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for authorizing or taking any
corporate action.
Section 4. Certain Restrictions. (a) Whenever
quarterly dividends or other dividends or distributions payable
on the Series A Preferred Stock as provided in section 2 are in
arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred, Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock; provided that
the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
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ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock;
or
(iv) purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, no distribution shall be made (1) to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to the
accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, plus an amount
equal to the greater of (x) $.0l per whole share or (y) an
aggregate amount per share equal to the Formula Number then in
effect times the aggregate amount to be distributed per share to
holders of Common Stock or (2) to the holders of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and
all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
Section 6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash or any other property, then in any such case the
then outstanding shares of Series A Preferred Stock shall at the
same time be similarly exchanged or changed into an amount per
share equal to the Formula Number then in effect times the
aggregate amount of stock, securities, cash or any other property
(payable in kind), as the case may be, into which or for which
each share of Common Stock is exchanged or changed. In the event
both this Section 6 and Section 2 appear to apply to a
transaction, this Section 6 will control.
Section 7. No Redemption; No Sinking Fund. (a) The
shares of Series A Preferred Stock shall not be subject to
redemption by the Corporation or at the option of
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any holder of Series A Preferred Stock; provided, however, that the
Corporation may purchase or otherwise acquire outstanding shares of
Series A Preferred Stock in the open market or by offer to any holder
or holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not
be subject to or entitled to the operation of a retirement or
sinking fund.
Section 8. Ranking. The Series A Preferred Stock
shall rank junior to all other series of Preferred Stock of the
Corporation, unless the Board of Directors shall specifically
determine otherwise in fixing the powers, preferences and
relative, participating, optional and other special rights of the
shares of such series and the qualifications, limitations and
restrictions thereof.
Section 9. Fractional Shares. The Series A Preferred
Stock shall be issuable upon exercise of the Rights issued
pursuant to the Rights Agreement in whole shares or in any
fraction of a share that is one one-hundredth (1/100th) of a
share or any integral multiple of such fraction which shall
entitle the holder, in proportion to such holder's fractional
shares, to receive dividends, exercise voting rights, participate
in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock. In lieu of fractional
shares, the Corporation, prior to the first issuance of a share
or a fraction of a share of Series A Preferred Stock, may elect
(1) to make a cash payment as provided in the Rights Agreement
for fractions of a share other than one one-hundredth (1/100th)
of a share or any integral multiple thereof or (2) to issue
depository receipts evidencing such authorized fraction of a
share of Series A Preferred Stock pursuant to an appropriate
agreement between the Corporation and a depository selected by
the Corporation; provided that such agreement shall provide that
the holders of such depository receipts shall have all the
rights, privileges and preferences to which they are entitled as
holders of the Series A Preferred Stock.
Section 10. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular
series by the Board of Directors pursuant to the provisions of
Article III of the Articles of Incorporation.
Section 11. Amendment. None of the powers,
preferences and relative, participating, optional and other
special rights of the Series A Preferred Stock as provided herein
or in the certificate of Incorporation shall be amended in any
manner which would alter or change the powers, preferences,
rights or privileges of the holders of Series A Preferred Stock
so as to affect them adversely without the affirmative vote of
the holders of at least 66-2/3% of the outstanding shares of
Series A Preferred Stock, voting as a separate class; provided,
however, that no such amendment approved by
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the holders of at least 66-2/3% of the outstanding shares of Series
A Preferred Stock shall be deemed to apply to the powers, preferences,
rights or privileges of any holder of shares of Series A Preferred Stock
originally issued upon exercise of the Rights after the time of
such approval without the approval of such holder.
IN WITNESS WHEREOF, ATLI Washington Corporation has
caused this Certificate to be duly executed in its corporate name
on this 3rd day of May, 1995.
ATLI WASHINGTON CORPORATION
by /s/ Dennis C. Fill
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Name: Dennis C. Fill
Chief Executive Officer
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