Exhibit (3)(i)
July 1, 1997 ART. OF INCORP.
RESTATED ARTICLES OF INCORPORATION
OF
ATL ULTRASOUND, INC.
ARTICLE I. NAME
The name of the corporation (the "Corporation") is
ATL ULTRASOUND, 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:
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(i) the number of shares constituting that series and
the distinctive designation of that series;
(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
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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 and the holders of such
shares shall have one vote, in person or by proxy, for each
share thereof held.
ARTICLE IV. 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.
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
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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,
attorneysO 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 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
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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.
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
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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 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.
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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
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
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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 Sections 23B.06.400 of the Act.
Any shares so acquired by 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 XI 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.
DATED this 26th day of June, 1997
/s/ W. Brinton Yorks, Jr.
_________________________
W. Brinton Yorks, Jr.
Its Vice President and Secretary
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