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EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
MICROSOFT CORPORATION
Pursuant to RCW 23B.10.070, the following Restated Articles of
Incorporation are hereby submitted for filing:
ARTICLE I
NAME
The name of the corporation is Microsoft Corporation.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the "Corporation" is 5000
Columbia Center, 701 Fifth Avenue, Seattle, Washington 98104-7078, and the name
of the registered agent at such address is PTSGE Corp.
ARTICLE III
PURPOSE
The Corporation is organized for the purposes of transacting any and
all lawful business for which a corporation may be incorporated under the
Washington Business Corporation Act, Title 23B of the Revised Code of
Washington, now or hereafter in force (the "Act").
ARTICLE IV
CAPITAL
The total number of shares of stock which the Corporation shall have
authority to issue is 2,000,000,000 shares, which shall consist entirely of
2,000,000,000 shares of common stock, $.00005 par value per share ("Common
Stock"). All shares of Common Stock have one vote per share.
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ARTICLE V
NO PREEMPTIVE RIGHTS
Shareholders of the Corporation have no preemptive rights to acquire
additional shares of stock or securities convertible into shares of stock
issued by the Corporation.
ARTICLE VI
DIRECTORS
6.1 The number of directors of the Corporation shall be fixed in
the manner specified by the bylaws of the Corporation.
6.2 Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled only by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, unless for any reason there are no directors in office
in which case they shall be filled by a special election by shareholders.
ARTICLE VII
ELECTION OF DIRECTORS
Shareholders of the Corporation shall not have the right to cumulate
votes in the election of directors.
ARTICLE VIII
SPECIAL SHAREHOLDER MEETINGS
Special meetings of the shareholders of the Corporation for any
purpose or purposes may be called at any time by the Board of Directors, or by
a committee of the Board of Directors which has been duly designated by the
Board of Directors and whose powers and authority, as provided in a resolution
of the Board of Directors or in the bylaws of the Corporation, include the
power to call such meetings, but such special meetings may not be called by any
other person or persons.
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ARTICLE-IX
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, adopt, repeal,
alter, amend, and rescind the bylaws of the Corporation by a resolution adopted
by a majority of the directors.
ARTICLE X
LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for conduct as a director,
except for:
(a) Acts or omissions involving intentional misconduct by the
director or a knowing violation of law by the director;
(b) Conduct violating Section 23B.08.310 of the Act (which
involves distributions by the Corporation);
(c) Any transaction from which the director will personally
receive a benefit in money, property, or services to which the
director is not legally entitled.
If the Washington Business Corporation Act 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 not prohibited by the Washington Business
Corporation Act, as so amended. The provisions of this Article shall be deemed
to be a contract with each Director of the Corporation who serves as such at
any time while such provisions are in effect, and each such Directors shall be
deemed to be serving as such in reliance on the provisions of this Article.
Any repeal or modification of the foregoing paragraph by the shareholders of
the Corporation shall not adversely affect any right or protection of a
director of the Corporation with respect to any acts or omissions of such
director occurring prior to such repeal or modification.
ARTICLE XI
MERGERS, SHARE EXCHANGES, AND OTHER TRANSACTIONS
A merger, share exchange, sale of substantially all of the
Corporation's assets, or dissolution must be approved by the affirmative vote
of a majority of the Corporation's
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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 XII
INDEMNIFICATION
12.1 Definitions. As used in this Article:
a. "Agent" means an individual who is or was an agent of
the Corporation or an individual who, while an agent of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise. "Agent" includes, unless
the context requires otherwise, the spouse, heirs, estate and personal
representative of an agent.
b. "Corporation" means the Corporation, and any domestic
or foreign predecessor entity which, in a merger or other transaction,
ceased to exist.
c. "Director" means an individual who is or was a
director of the Corporation or an individual who, while a director of
the Corporation, is or was serving at the Corporation's request as a
director officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. "Director" includes,
unless the context requires otherwise, the spouse, heirs, estate and
personal representative of a director.
d. "Employee" means an individual who is or was an
employee of the Corporation or an individual, while an employee of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise- "Employee" includes,
unless the context requires otherwise, the spouse, heirs, estate and
personal representative of an employee.
e. "Expenses" include counsel fees.
f. "Indemnitee" means an individual made a party to a
proceeding because the individual is or was a Director, Officer,
Employee, or Agent of the Corporation, and who possesses
indemnification rights pursuant to these Articles or other corporate
action. "Indemnitee" includes, unless the context requires otherwise,
the spouse, heirs, estate, and personal representative of such
individuals.
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g. "Liability" means the obligation to pay a judgment,
settlement penalty, fine, including an excise tax with respect to an
employee benefit plan, or reasonable Expenses incurred with respect to
a proceeding.
h. "Officer" means an individual who is or was an
officer of the Corporation (regardless of whether or not such
individual was also a Director) or an individual who, while an officer
of the Corporation, is or was serving at the Corporation's request as
a director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise. "Officer" includes,
unless the context requires otherwise, the spouse, heirs, estate and
personal representative of an officer.
i. "Party" includes an individual who was, is, or is
threatened to be named a defendant, respondent or witness in a
proceeding.
j. "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, derivative,
criminal, administrative, or investigative, and whether formal or
informal.
12.2 Indemnification Rights of Directors and Officers. The
Corporation shall indemnify its Directors and Officers to the full extent not
prohibited by applicable law now or hereafter in force against liability
arising out of a Proceeding to which such individual was made a Party because
the individual is or was a Director or an Officer. However, such indemnity
shall not apply on account of:
(a) Acts or omissions of a Director or Officer finally adjudged to
be intentional misconduct or a knowing violation of law;
(b) Conduct of a Director or Officer finally adjudged to be in
violation of Section 23B.09.3 10 of the Act relating to
distributions by the Corporation; or
(c) Any transaction with respect to which it was finally adjudged
that such Director or Officer personally received a benefit in
money, property, or services to which the Director or Officer
was not legally entitled.
Subject to the foregoing, it is specifically intended that Proceedings covered
by indemnification shall include Proceedings brought by the Corporation
(including derivative actions) Proceedings by government entities and
governmental officials or other third party actions.
12.3 Indemnification of Employees and Agents of the Corporation.
The Corporation may, by action of its Board of Directors from time to time,
provide indemnification and pay Expenses in advance of the final disposition of
a Proceeding to Employees and Agents of the Corporation who are not also
Directors, in each case to the same extent as to a Director with
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respect to the indemnification and advancement of Expenses pursuant to rights
granted under, or provided by, the Act or otherwise.
12.4 Partial Indemnification. If an Indemnitee is entitled to
indemnification by the Corporation for some or a portion of Expenses,
liabilities, or losses actually and reasonably incurred by Indemnitee in an
investigation, defense, appeal or settlement but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the
portion of such Expenses, liabilities or losses to which Indemnitee is
entitled.
12.5 Procedure for Seeking Indemnification and/or Advancement of
Expenses. The following procedures shall apply in the absence of (or at the
option of the Indemnitee, in lieu thereof), specific procedures otherwise
applicable to an Indemnitee pursuant to a contract, trust agreement, or general
or specific action of the Board of Directors:
12.5.1 NOTIFICATION AND DEFENSE OF CLAIM. Indemnitee shall
promptly notify the Corporation in writing of any proceeding for which
indemnification could be sought under this Article. In addition,
Indemnitee shall give the Corporation such information and cooperation
as it may reasonably require and as shall be within Indemnitee's
power.
With respect to any such proceeding as to which Indemnitee has
notified the Corporation:
(a) The Corporation will be entitled to participate
therein at its own expense; and
(b) Except as otherwise provided below, to the extent
that it may wish, the Corporation, jointly with any
other indemnifying party similarly notified, will be
entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. Indemnitee's consent to
such counsel may not be unreasonably withheld.
After notice from the Corporation to Indemnitee of its
election to assume the defense, the Corporation will not be liable to
Indemnitee under this Article for any legal or other Expenses
subsequently incurred by Indemnitee in connection with such defense.
However, Indemnitee shall continue to have the right to employ its
counsel in such proceeding, at Indemnitee's expense; and if:
(i) The employment of counsel by Indemnitee has
been authorized by the Corporation;
(ii) Indemnitee shall have reasonably concluded
that there may be a conflict of interest
between the Corporation and Indemnitee in the
conduct of such defense; or
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(iii) The Corporation shall not in fact have
employed counsel to assume the defense of
such proceeding,
the fees and Expenses of Indemnitee's counsel shall be at the expense of the
Corporation.
The Corporation shall not be entitled to assume the defense of
any proceeding brought by or on behalf of the Corporation or as to
which Indemnitee shall reasonably have made the conclusion that a
conflict of interest may exist between the Corporation and the
Indemnitee in the conduct of the defense.
12.5.2 INFORMATION TO BE SUBMITTED AND METHOD OF
DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION. For the purpose
of pursuing rights to indemnification under this Article, the
Indemnitee shall submit to the Board a sworn statement requesting
indemnification and reasonable evidence of all amounts for which such
indemnification is requested (together, the sworn statement and the
evidence constitute an "Indemnification Statement").
Submission of an Indemnification Statement to the Board shall
create a presumption that the Indemnitee is entitled to
indemnification hereunder, and the Corporation shall, within sixty
(60) calendar days thereafter, make the payments requested in the
Indemnification Statement to or for the benefit of the Indemnitee,
unless: (1) within such sixty (60) calendar day period it shall be
determined by the Corporation that the Indemnitee is not entitled to
indemnification under this Article; (2) such determination shall be
based upon clear and convincing evidence (sufficient to rebut the
foregoing presumption); and (3) the Indemnitee shall receive notice in
writing of such determination, which notice shall disclose with
particularity the evidence upon which the determination is based.
The foregoing determination may be made: (1) by the Board of
Directors by majority vote of a quorum of Directors who are not at the
time parties to the proceedings; (2) if a quorum cannot be obtained,
by majority vote of a committee duly designated by the Board of
Directors (in which designation Directors who are parties may
participate) consisting solely of two (2) or more Directors not at the
time parties to the proceeding; (3) by special legal counsel; or (4)
by the shareholders as provided by Section 23B.08.550 of the Act.
Any determination that the Indemnitee is not entitled to
indemnification, and any failure to make the payments requested in the
Indemnification Statement, shall be subject to judicial review by any
court of competent jurisdiction.
12.5.3 SPECIAL PROCEDURE REGARDING ADVANCE FOR EXPENSES. An
Indemnitee seeking payment of Expenses in advance of a final
disposition of the proceeding must furnish the Corporation, as part of
the Indemnification Statement:
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(a) A written affirmation of the Indemnitee's
good faith belief that the Indemnitee has met
the standard of conduct required to be
eligible for indemnification; and
(b) A written undertaking, constituting an
unlimited general obligation of the
Indemnitee, to repay the advance if it is
ultimately determined that the Indemnitee did
not meet the required standard of conduct.
Upon satisfaction of the foregoing the Indemnitee shall have a
contractual right to the payment of such Expenses.
12.5.4 SETTLEMENT. The Corporation is not liable to
indemnify Indemnitee for any amounts paid in settlement of any
proceeding without the Corporation's written consent. The Corporation
shall not settle any proceeding in any manner which would impose any
penalty or limitation on Indemnitee without Indemnitee's written
consent. Neither the Corporation nor Indemnitee may unreasonably
withhold its consent to a proposed settlement.
12.6. Contract and Related Rights.
12.6.1 CONTRACT RIGHTS. The right of an Indemnitee to
indemnification and advancement of Expenses is a contract right upon
which the Indemnitee shall be presumed to have relied in determining
to serve or to continue to serve in his or her capacity with the
Corporation. Such right shall continue as long as the Indemnitee
shall be subject to any possible proceeding. Any amendment to or
repeal of this Article shall not adversely affect any right or
protection of an Indemnitee with respect to any acts or omissions of
such Indemnitee occurring prior to such amendment or repeal.
12.6.2 OPTIONAL INSURANCE, CONTRACTS, AND FUNDING. The
Corporation may:
(a) Maintain insurance, at its expense, to
protect itself and any Indemnitee against any
liability, whether or not the Corporation
would have power to indemnify the individual
against the same liability under Section
23B.08.5 10 or .520 of the Act;
(b) Enter into contracts with any Indemnitee in
furtherance of this Article and consistent
with the Act; and
(c) Create a trust fund, grant a security
interest, or use other means (including
without limitation a letter of credit) to
ensure the
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payment of such amounts as may be necessary
to effect indemnification as provided in
this Article.
12.6.3 SEVERABILITY. If any provision or application of
this Article shall be invalid or unenforceable, the remainder of this
Article and its remaining applications shall not be affected thereby,
and shall continue in full force and effect.
12.6.4 RIGHT OF INDEMNITEE TO BRING SUIT. If (1) a claim
under this Article for indemnification is not paid in full by the
Corporation within sixty (60) days after a written claim has been
received by the Corporation; or (2) a claim under this Article for
advancement of Expenses is not paid in full by the Corporation within
twenty (20) days after a written claim has been received by the
Corporation, then the Indemnitee may, but need not, at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. To the extent successful in whole or in part,
the Indemnitee shall be entitled to also be paid the expense (to be
proportionately prorated if the Indemnitee is only partially
successful) of prosecuting such claim. Neither (1) 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 proceeding that indemnification or reimbursement
or advancement of Expenses to the Indemnitee is proper in the
circumstances; nor (2) an actual determination by the Corporation
(including its Board of Directors, its shareholders, or independent
legal counsel that the Indemnitee is not entitled to indemnification
or to the reimbursement or advancement of Expenses, shall be a defense
to the proceeding or create a presumption that the Indemnitee is not
so entitled.
12.6.5 NONEXCLUSIVITY OF RIGHTS. The right to
indemnification and the payment of Expenses incurred in defending a
Proceeding in advance of its final disposition granted in this Article
shall not be exclusive of any other right which any Indemnitee may
have or hereafter acquire under any statute, provision of this Article
or the Bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise. The Corporation shall have the express right
to grant additional indemnity without seeking further approval or
satisfaction by the shareholders. All applicable indemnity provisions
and any applicable law shall be interpreted and applied so as to
provide an Indemnitee with the broadest but nonduplicative indemnity
to which he or she is entitled.
12.7 Contribution. If the indemnification provided in Section 12.2
of this Article is not available to be paid to Indemnitee for any reason other
than those set forth in subparagraphs 12.2(a), 12.2(b), and 12.2(c) of Section
12.2 of this Article (for example, because indemnification is held to be
against public policy even though otherwise permitted under Section 12.2) then
in respect of any proceeding in which the Corporation is jointly liable with
Indemnitee (or would be if joined in such proceeding), the Corporation shall
contribute to the amount of loss paid or payable by Indemnitee in such
proportion as is appropriate to reflect:
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The relative benefits received by the Corporation on
the one hand and the Indemnitee on the other hand
from the transaction from which such proceeding
arose, and
The relative fault of the Corporation on the one hand
and the Indemnitee on the other hand in connection
with the events which resulted in such loss, as well
as any other relevant equitable consideration.
The relative benefits received by and fault of the Corporation on the
one hand and the Indemnitee on the other shall be determined by a court of
appropriate jurisdiction (which may be the same court in which the proceeding
took place) with reference to, among other things, the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
the circumstances resulting in such loss. The Corporation agrees that it would
not be just and equitable if a contribution pursuant to this Article was
determined by pro rata allocation or any other method of allocation which does
not take account of the foregoing equitable considerations.
12.8 Exceptions. Any other provision herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms
of these Articles to indemnify or advance Expenses to Indemnitee with respect
to any proceeding.
12.8.1 CLAIMS INITIATED BY INDEMNITEE. Initiated or brought
voluntarily by Indemnitee and not by way of defense, but such
indemnification or advancement of Expenses may be provided by the
Corporation in specific cases if the Board of Directors finds it to be
appropriate. Notwithstanding the foregoing, the Corporation shall
provide indemnification including the advancement of Expenses with
respect to Proceedings brought to establish or enforce a right to
indemnification under these Articles or any other statute or law or as
otherwise required under the statute.
12.8.2 LACK OF GOOD FAITH. Instituted by Indemnitee to
enforce or interpret this Article, if a court of competent
jurisdiction determines that each of the material assertions made by
Indemnitee in such proceeding was not made in good faith or was
frivolous.
12.8.3 INSURED CLAIMS. For which any of the Expenses or
liabilities for indemnification is being sought have been paid
directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the
Corporation.
12.8.4 PROHIBITED BY LAW. If the Corporation is prohibited
by the Act or other applicable law as then in effect from paying such
indemnification and/or advancement of Expenses. For example, the
Corporation and Indemnitee acknowledge that the Securities and
Exchange Commission ("SEC") has taken the position that
indemnification is not possible for liabilities arising under certain
federal securities laws. Indemnitee understands and acknowledges that
the Corporation has undertaken or may be required in
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the future to undertake with the SEC to submit the question of
indemnification to a court in certain circumstances for a
determination of the Corporation's right to indemnify Indemnitee.
12.9 Successors and Assigns. All obligations of the Corporation to
indemnify any Director or Officer shall be binding upon all successors and
assigns of the Corporation (including any transferee of all or substantially
all of its assets and any successor by merger or otherwise by operation of
law). The Corporation shall not effect any sale of substantially all of its
assets, merger, consolidation, or other reorganization, in which it is not the
surviving entity, unless the surviving entity agrees in writing to assume all
such obligations of the Corporation.
ARTICLE XIII
CORPORATION'S ACQUISITION OF ITS OWN SHARES
The Corporation may purchase, redeem, receive, take or otherwise
acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose of,
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 pursuant to this
Article shall be considered "Treasury Stock" and so held by the Corporation.
The shares so acquired by the Corporation shall not be considered as authorized
and unissued but rather as authorized, issued, and held by the Corporation.
The shares, so acquired shall not be regarded as cancelled 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 do not alter or effect 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 effect the
limitations on distributions by the Corporation as set forth in Section
23B.06.400 of the Act. Any shares so acquired by the Corporation, unless
otherwise 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 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.
The undersigned has signed these Restated Articles of Incorporation on
May ____, 1994.
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William H. Neukom
Secretary
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CERTIFICATE
The undersigned, as Secretary of Microsoft Corporation, hereby
certifies that the accompanying Restated Articles of Incorporation were adopted
by the Board of Directors on April 23, 1994 and do not contain any amendment
requiring shareholder approval.
Dated: May ___, 1994.
Microsoft Corporation
_________________________________________
William H. Neukom
Secretary
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