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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 SHARES
4.1 AUTHORIZED SHARES. The total number of shares of stock
which the Corporation shall have authority to issue is 4,100,000,000 shares,
which shall consist of 4,000,000,000 shares of common stock, $.000025 par value
per share ("Common Shares") and 100,000,000 shares of preferred stock, $.01 par
value per share ("Preferred Shares"). Except as otherwise provided in accordance
with these Articles of Incorporation, the Common Shares shall have the unlimited
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voting rights, with each share being entitled to one vote, and the rights to
receive the net assets of the Corporation upon dissolution, with each share
participating on a pro rata basis.
4.2 ISSUANCE OF PREFERRED SHARES. The Board of Directors is hereby
authorized from time to time, without shareholder action, to provide for the
issuance of Preferred Shares in one or more series not exceeding in the
aggregate the number of Preferred Shares authorized by these Articles of
Incorporation, as amended from time to time; and to determine with respect to
each such series the voting powers, if any (which voting powers, if granted, may
be full or limited), designations, preferences, and relative, participating,
option, or other special rights, and the qualifications, limitations, or
restrictions relating thereto, including without limiting the generality of the
foregoing, the voting rights relating to Preferred Shares of any series (which
may be one or more votes per share or a fraction of a vote per share, which may
vary over time, and which may be applicable generally or only upon the happening
and continuance of stated events or conditions), the rate of dividend to which
holders of Preferred Shares of any series may be entitled (which may be
cumulative or noncumulative), the rights of holders of Preferred Shares of any
series in the event of liquidation, dissolution, or winding up of the affairs of
the Corporation, the rights, if any, of holders of Preferred Shares of any
series to convert or exchange such Preferred Shares of such series for shares of
any other class or series of capital stock or for any other securities,
property, or assets of the Corporation or any subsidiary (including the
determination of the price or prices or the rate or rates applicable to such
rights to convert or exchange and the adjustment thereof, the time or times
during which the right to convert or exchange shall be applicable, and the time
or times during which a particular price or rate shall be applicable), 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, and whether any shares of that series shall be redeemed
pursuant to a retirement or sinking fund or otherwise and the terms and
conditions of such obligation.
4.3 FILINGS AND EFFECTIVENESS. Before the Corporation shall issue any
Preferred Shares of any series, Articles of Amendment or Restated Articles of
Incorporation, fixing the voting powers, designations, preferences, the
relative, participating, option, or other rights, if any, and the
qualifications, limitations, and restrictions, if any, relating to the Preferred
Shares of such series, and the number of Preferred Shares of such series
authorized by the Board of Directors to be issued shall be filed with the
secretary of state in accordance with the Washington Business Corporation Act
("WBCA") and shall become effective without any shareholder action. The Board of
Directors is further authorized to increase or decrease (but not below the
number of such shares of such series then outstanding) the number of shares of
any series subsequent to the issuance of shares of that series.
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ARTICLE V
NO PREEMPTIVE RIGHT'S
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 NUMBER. The number of directors of the Corporation shall be fixed
in the manner specified by the bylaws of the Corporation.
6.2 VACANCIES. 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.08.310 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.08.510 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 payment of such
amounts as may be necessary to effect indemnification
as provided in this Article.
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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:
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
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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 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
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any transferee of all or substantially all of its assets and any successor by
merger or other-wise 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 as
of November 21, 1996.
/s/ Robert A. Eshelman
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Robert A. Eshelman
Assistant Secretary
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